Karnataka High Court

Tippeshi L Chavan vs University Of Agricultural ... on 12 July, 2023

Bench: S.Vishwajith Shetty

                                               -1-
                                                      NC: 2023:KHC-D:7104
                                                        WP No. 107830 of 2014




                                 IN THE HIGH COURT OF KARNATAKA,
                                         DHARWAD BENCH

                              DATED THIS THE 12TH DAY OF JULY, 2023

                                             BEFORE

                         THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY

                             WRIT PETITION NO. 107830 OF 2014 (S-RES)

                      BETWEEN:

                         SRI. TIPPESHI L CHAVAN S/O. L C CHAVAN,
                         AGE: 32 YEARS, R/AT: ESHWAR NAGAR,
                         NEAR ESHWAR TEMPLE, RANEBENNUR,
                         DIST: HAVERI.
                                                                ... PETITIONER
                      (BY SRI. SATISH M DODDAMANI, SR. COUNSEL FOR
                       SRI. SHRIHARSH A NEELOPANT, ADVOCATE)

                      AND:

                          THE UNIVERSITY OF AGRICULTURAL SCIENCES,
                          KRISHI NAGAR, DHARWAD,
                          R/BY ITS REGISTRAR.
         Digitally
                                                              ... RESPONDENT
         signed by
         VISHAL       (BY SRI. RAMACHANDRA A MALI, ADVOCATE)
VISHAL   NINGAPPA
NINGAPPA PATTIHAL
PATTIHAL Date:
         2023.07.15
         11:10:50
                           THIS WRIT PETITION IS FILED UNDER ARTICLES 226
         +0530
                      AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
                      ISSUE A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER
                      WRIT OR DIRECTION AND QUASH THE RESOLUTION OF THE
                      BOARD OF MANAGEMENT OF THE RESPONDNET UNIVERSITY,
                      DATED 31.08.2013, COPY AS PER ANNEXURE-J AND FURTHER
                      DIRECT THE RESPONDENT TO APPOINT THE PETITIONER TO
                      THE POST OF ASST PROFESSOR SILVICULTURE, COPY AS PER
                      ANNEXURE-B.

                           THIS WRIT PETITION, COMING ON FOR PRELIMINARY
                      HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
                      FOLLOWING:
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                                      NC: 2023:KHC-D:7104
                                        WP No. 107830 of 2014




                             ORDER

The petitioner, who was an applicant to the post of

Assistant Professor of Silviculture pursuant to the notification

Annexure - A dated 14.04.2011 issued by the respondent -

University is before this Court assailing the resolution of the

Board of Management of the respondent - University dated

31.08.2013 vide Annexure - J and he has also sought for a

further direction to the respondent to appoint him to the post of

Assistant Professor Silviculture.

2. Heard the learned counsel for the parties.

3. In response to the notification at Annexure - A, the

petitioner had submitted his application seeking appointment to

the post of Assistant Professor of Silviculture which was

reserved for candidates belonging to Schedule Caste. The

petitioner was called for an interview alongwith other eligible

candidates and in the marks allotted to the eligible candidates

who had appeared for the interview, the petitioner was placed

third. One Sri.Deepak M.S., who had toped the list was

appointed to the post of Assistant Professor of Silviculture and

accordingly, a resolution was also passed by the Board of

NC: 2023:KHC-D:7104 WP No. 107830 of 2014

Management. Subsequently, it was learnt by the respondent

that aforesaid Deepak M.S. was earlier appointed as a full time

employee in the Syndicate Bank and without obtaining No

Objection Certificate from his employer, he had appeared for

the interview held by the respondent. In this regard, a show

cause notice was issued to Deepak M.S. and subsequently a

decision was taken to cancel the appointment of aforesaid

Deepak M.S. Subsequent to the said decision, a resolution was

passed on 31.08.2013 vide Annexure - J deciding not to fill up

the post of Assistant Professor of Silviculture from the reserved

list and it was decided to issue fresh notification for filling up

the said post. Being aggrieved by the same, the petitioner is

before this Court.

4. Learned senior counsel appearing for the petitioner

submits that no reasons have been assigned by the respondent

to fill up the post by issuing fresh notification. He submits that

all the other posts for which application was called for vide

notification Annexure - A have been filled up except the post of

Assistant Professor of Silviculture and therefore, the act of the

respondent amounts to violation of Article 14 of the

Constitution of India. He submits that the petitioner is the next

NC: 2023:KHC-D:7104 WP No. 107830 of 2014

eligible candidate in the waiting list and therefore, there is no

justification on the part of the respondent to refuse his

appointment.

5. Per contra, learned counsel appearing for the

respondent - University submits that as could be seen from

Annexure - B scorecard of the candidates who had appeared in

the interview, the petitioner is placed third and his marks are

comparatively much lesser than the candidates who were

placed in the first and second rank. He submits that if the

University wants to fill up the post with a better candidate, no

fault can be found in the same, as the said decision is taken by

the University keeping in mind the better interest of the

students and the standard of education. He submits that

Annexure - B is only a scorecard, wherein the petitioner has

been placed in third rank and that cannot be considered as a

waiting list, so has to entitle the petitioner to seek an

appointment. In support of his arguments, he has placed

reliance on the judgment of the Hon'ble Supreme Court in the

case of Municipal Corporation of Delhi vs. Surender Singh

and others passed in Civil Appeal No.5588/2010 disposed of

on 01.08.2019.

NC: 2023:KHC-D:7104 WP No. 107830 of 2014

6. The material on record would go to show that out of

the 12 eligible candidates, only five of them had appeared in

the interview held by the respondent. Amongst the five,

Deepak M.S., who had scored total marks of 38.91 was ranked

first and Venkatesh L., who had scored 37.449 marks was

ranked second. The petitioner who was ranked third has only

scored 30.875 marks which is much below the marks scored by

the other two candidates who were placed in the first and

second rank.

7. As rightly contended by the learned counsel for the

respondent, the document Annexure - B is only a scoreboard of

the candidates who had appeared for the interview and the

same cannot be considered as a waiting list. Undisputedly

based on the marks scored by the candidates who had

appeared for the interview, the respondents had appointed

Sri.Deepak M.S. to the post of Assistant Professor of

Silviculture. Thereafter, his appointment was cancelled by the

University on the ground that he had appeared for the

interview held by the University without obtaining No Objection

Certificate from his employer who had appointed him as a full

time employee. Therefore, it cannot be said that the

NC: 2023:KHC-D:7104 WP No. 107830 of 2014

respondent had not filled up the post of Assistant Professor of

Silviculture though they have filled up other posts for which

applications were called for under notification Annexure - A.

Merely for the reason the appointment of the successful

candidate was subsequently cancelled by the University, that

itself will not give a right to the other candidates who were also

called for interview to seek an appointment as a matter of

right.

8. The Hon'ble Supreme Court in the case of

Municipal Corporation of Delhi supra at para 19 has

observed as follows:

"19. On noticing the manner of consideration made by the Division Bench, we are of the view that the Division Bench has exceeded the jurisdiction while exercising the power of judicial review in the matter of selection process by evolving its own criteria and substituting the same with the criteria adopted by recruiting agency. We are of the said view for the reason that the position of law is well established that the recruiting agency cannot be compelled to fill up all available posts even if the persons of the desired merit are not available. This Court in the case of Ashwani Kumar Singh vs. U.P.

NC: 2023:KHC-D:7104 WP No. 107830 of 2014

Public Service Commission & Ors. (2003 ) 11 SCC 584 relied upon by the learned counsel for the appellant had considered these aspects and held that it is not a rule of universal application that whenever vacancies exist persons who are in the merit list per force have to be appointed. It is held therein that if the employer fixes the cutoff position the same is not to be tinkered with unless it is totally irrational or tainted with malafides. It was further stated therein that the employer in its wisdom may consider the particular range of selection to be appropriate. The decision of the employer to appoint a particular number of candidates cannot be interfered with unless it is irrational or malafide."

9. If the respondent - University has taken a decision

to fill up the post by calling for fresh notification, keeping in

mind the interest of the student and the standard of education

in the University, no fault can be found in the same. The overall

marks obtained by the petitioner including the academic

qualifications is much lesser compared to the candidates who

were placed in the first and second rank at Annexure - B and if

the respondent - University is of the view that the petitioner is

not suitable to be appointed to the post of Assistant Professor

of Silviculture considering his academic qualifications and the

NC: 2023:KHC-D:7104 WP No. 107830 of 2014

overall marks scored by him as reflected in the scorecard