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Karnataka High Court · body

2001 DIGILAW 552 (KAR)

EKANATH EKBOTE v. GULBARGA UNIVERSITY

2001-07-17

H.L.DATTU

body2001
H. L. DATTU, J. ( 1 ) PETITIONER, a reader working in the 1st respondent-gulbarga university ('the university' for short), gulbarga, is before this court inter alia questioning the correctness or otherwise of the order of appointment issued to 2nd respondent dated 31-5-1995 as professor in the department of education. The other relief sought in the writ petition is, to direct the respondents to select and appoint the petitioner to the post of professor in the department of education as he is the only candidate who had the requisite qualification on the last date of filing of the application for the post of professor in the respondent-university. ( 2 ) FIRST about the petitioner. Petitioner was appointed as a reader in the respondent-university on 8-2-1988. The university has prepared the provisional gradation list of professors, readers and lecturers of the university. In the said list, petitioner's name finds a place at si. No. 1 in the department of studies in education and further, the provisional seniority list would indicate that the petitioner was appointed as a reader in the department of education on 8-2-1988. Petitioner also states that he has been awarded with the doctorate degree in the year 1986 and he has successfully produced one ph. d. student and guided 4 m. phil. Students. ( 3 ) NOW about the 2nd respondent. The 2nd respondent was a lecturer working in the respondent-university having been appointed as such on 23-11-1987. By an order dated 16-11-1993 she was promoted to the post of reader. According to her, she has the following teaching and research experience. In order to appreciate the stand of the petitioner before this court, in my opinion, the teaching and research experience as stated by the 2nd respondent in her bio-data furnished along with the application filed before the university for appointment to the post of professor is required to be noticed. Therefore, it is extracted. The same reads as under. "13. Teaching and research experience. As lecturer (a) 1 academic year - puc board; (b) 1 academic year - b. ed. College; (c) 6 years - postgraduate, department of studies and research in education; (d) research experience - 8 years (5+3); (e) total postgraduate teaching and research experience - 8 years and 5 months". The same reads as under. "13. Teaching and research experience. As lecturer (a) 1 academic year - puc board; (b) 1 academic year - b. ed. College; (c) 6 years - postgraduate, department of studies and research in education; (d) research experience - 8 years (5+3); (e) total postgraduate teaching and research experience - 8 years and 5 months". ( 4 ) THE 1st respondent-university had issued a notification dated 19-1-1994 inviting applications for the post of professors, readers and lecturers in the university. For the reasons best known, that notification was not acted upon by the university. Subsequently, the university had issued one more notification dated 1-6-1994 inviting applications for the. Post of professors, readers and lecturers in the university. In the notification it was made clear that, those candidates who have already applied in response to the earlier notification dated 19-1-1994, need not have to apply once over again. ( 5 ) IN this writ petition we are primarily concerned with the appointment of the 2nd respondent to the post of professor in the department of education in the university. In the notification, the university had prescribed the requisite qualification for a candidate to apply for the post of a professor in the university. The qualification prescribed by the university is as under. "qualification. The minimum qualification prescribed for the above posts are as per ugc norms viz. , 1. Professor. An eminent scholar with published work of high quality actively engaged in research with 10 years of experience in postgraduate teaching and/or research at the ltniversity/national level institutions, including experience or guiding research at doctoral level, or an outstanding scholar with established reputation who has made significant contribution to knowledge". the other clauses in the notification need not be noticed by me for the reason, they are not necessary for the purpose of considering the legal issues raised and canvassed in support of the relief requested in the writ petition. ( 6 ) PURSUANT to the notification dated 1-6-1994, petitioner and 4 others had applied for the post of professor in the university. ( 6 ) PURSUANT to the notification dated 1-6-1994, petitioner and 4 others had applied for the post of professor in the university. The university had constituted a board of appointment ('boa' for short) in exercise of its powers under sub-section (1) of Section 49 of the Karnataka state universities Act, 1976 ('the act' for short) for selecting a suitable and qualified candidate for appointment to the post of professor and thereafter, to recommend the same to the syndicate of the university for appointment. The boa consisted of 5 eminent educationists. They are. (1) dr. N. Rudraiah, vice-chancellor chairman (2) dr. Balasubramanyam, retired professor, Madras university member (3) dr. B. c. patil, retired reader, Karnataka university, dharwar member (4) dr. Sridharaswamy, professor, osmania university member (5) the registrar, gulbarga university, gulbarga secretary ( 7 ) AFTER such Constitution of the board of appointment, petitioner and 4 others who had applied for the post of professor were invited for the interview to be held by the boa on 5-5-1995. Before the boa, only 3 persons had participated in the selection process. The boa after considering the case of the petitioner and the 2nd respondent and after adjudging the merit of each candidate in accordance with the qualification prescribed, had made the following recommendation to the syndicate of the university for appointment to the post of professor in the department of education. The recommendation made by the boa is as under. "totally 5 candidates have been called for the interview for the post of professor in education. Dr. N. n. prahlad and Dr. R. w. yeli remained absent for the interview. The boa interviewed the other 3 candidates. The boa found that Dr. M. s. talwar does not possess 10 years postgraduate teaching experience despite giving credit of 3 years for the ph. d. therefore the boa found him ineligible for the post of professor. Considering the academic attainment and performance of the other two candidates at the interview, the boa found Dr. Syed akhtar as suitable for the post and therefore recommends to appoint (her) Dr. Syed akhtar as professor of education". ( 8 ) AFTER receipt of the recommendation made by the boa, the matter was placed before the syndicate of the university. Considering the academic attainment and performance of the other two candidates at the interview, the boa found Dr. Syed akhtar as suitable for the post and therefore recommends to appoint (her) Dr. Syed akhtar as professor of education". ( 8 ) AFTER receipt of the recommendation made by the boa, the matter was placed before the syndicate of the university. The syndicate in its meeting held on 31-5-1995 was pleased to accept the recommendation made by the boa and on the same day an order of appointment came to he issued in favour of the 2nd respondent, appointing her to the post of professor in the department of education. Aggrieved by the said order of appointment of the 2nd respondent as the professor of the department of education, petitioner who claims that he is well qualified and eligible for appointment to the aforesaid post, is before this court inter alia seeking the reliefs indicated by me earlier. ( 9 ) PETITIONER's main contention before this court are. (1) the board of appointment that was constituted by the university was not in accordance with the Provisions of sub-section (1) of Section 49 of the Karnataka state universities Act, 1976. (2) the 2nd respondent who has been appointed as a professor did not have the requisite qualification and therefore, the respondent-university could not have appointed her to the post of professor in the department of education. Several other grounds are also taken in the writ petition; but they were not urged by the learned counsel for the petitioner at the time of hearing of the writ petition. ( 10 ) IN support of the 1st issue, learned counsel for the petitioner states that Sri b. c. patil, who has been appointed as one of the members of the boa, had retired from the services of the university as a reader and that retired person could not have been appointed as one of the members of the boa. According to the learned counsel, since the Constitution of the selection committee/boa is illegal, any recommendation made by them is nullity in the eye of law. Secondly, it is stated by the learned counsel for the petitioner that, the 2nd respondent did not possess the requisite qualification namely 10 years of experience in postgraduate teaching and research at the university/national level institutions. According to the learned counsel, 2nd respondent had applied for ph. Secondly, it is stated by the learned counsel for the petitioner that, the 2nd respondent did not possess the requisite qualification namely 10 years of experience in postgraduate teaching and research at the university/national level institutions. According to the learned counsel, 2nd respondent had applied for ph. d. , on 17-5-1985 and she had submitted her thesis paper on 13-8-1987. That means to say, the 2nd respondent to complete her ph. d. course, had taken 2 years 2 months and 26 days and it is further stated that the 2nd respondent was appointed as a lecturer on 23-11-1987. On the last date for receipt of application for the post of professor pursuant to the notification issued dated 1-6-1994, is 30-6-1994. If these two dates are taken into consideration according to the learned counsel, the 2nd respondent had a teaching experience of 6 years' 7 months and 7 days which is less than 7 years. In view of this the learned counsel states that the 2nd respondent on the last date of filing of the application i. e. , 30-6-1994 did not possess the requisite qualification as prescribed in the notification inviting applications for the post of professor. Since respondent 2 did not have the requisite qualification, the boa of the university could not have called her for interview and also could not have selected and recommended her name for appointment to the post of professor. Therefore, it is stated by the learned counsel that the appointment of the 2nd respondent is arbitrary, illegal, invalid and contrary to the Provisions of the Karnataka state universities Act, 1976. ( 11 ) THE respondent-university has filed its objections. In that, they have stated as under. "r-2 was appointed as a lecturer in the department of education in 1st respondent-university with effect from 23-11-1987 under Section 49 of the act. She was promoted as reader under the merit promotion scheme in the year 1993. She has secured ph. d. , from Mysore university having done research for a period of 3 years at the regional college of education (ncert), mysore. As on 5-5-1995, the date on which candidates were interviewed by the boa r-2 had experience of more than 10 years in postgraduate teaching and/or research at the university/national level institution. She has secured ph. d. , from Mysore university having done research for a period of 3 years at the regional college of education (ncert), mysore. As on 5-5-1995, the date on which candidates were interviewed by the boa r-2 had experience of more than 10 years in postgraduate teaching and/or research at the university/national level institution. It may be mentioned that while reckoning the duration of experience of teaching/research, weightage/credit of 3 years is given for research done leading to ph. d. in the case of all candidates. This is done by all the universities while considering cases under Section 49 of the act. It is submitted that petitioner's contention that r-2 did not possess the advertised qualification for being appointed as professor, is misconceived and incorrect". ( 12 ) THE university in its objection statement has further stated that. "4. The boa which was only constituted under Section 49 (2) (a) of the act has after interviewing the 3 candidates and assessing merit and suitability, recommended the case of r-2 for appointment to the post of professor in the department of education. It is submitted that the recommendation of the boa is in accordance with law and there is no infirmity in the same. It is respectfully submitted that in view of the law laid down by the Hon'ble supreme court of India in the cases of (1) university of Mysore v c. d. govinda rao and another, (2) km. Neelima misra v Dr. Harinder kaur paintal and others, and (3) dalpat abasaheb solunke v Dr. B. s. mahajan3, the recommendation of the boa is not liable to be interfered with. Petitioner's grievance against the recommendation of the boa is misconceived". ( 13 ) THE 2nd respondent also has filed her detailed statement of objections resisting the relief sought for by the petitioner and further states that, as on the date of the interview that was held on 5-5-1995, she had i he requisite experience of 10 years i. e. , prescribed under the notification dated 1-6-1994. ( 14 ) THE learned counsel appearing for the 2nd respondent submits that the expression used that the applicant should have 10 years of experience in postgraduate teaching and/or research at the university/national level institution in the notification issued by the university has to be understood as interpreted by the apex court in the case of Dr. ( 14 ) THE learned counsel appearing for the 2nd respondent submits that the expression used that the applicant should have 10 years of experience in postgraduate teaching and/or research at the university/national level institution in the notification issued by the university has to be understood as interpreted by the apex court in the case of Dr. Kumar bar das v utkal university. In that decision the Supreme Court was considering the meaning of the expression "about 10 years experience of teaching and /or research" stipulated in relevant columns of the endowment as well as in the advertisement would mean not only teaching experience but research experience should also be counted in ascertaining the total experience. The court was further pleased to observe that since the expression used in the notification was "about 10 years", the same should not be measured on the basis of a purely mathematical formula. In that context the court was further pleased to observe: "here we are concerned with the view taken by experts in the selection committee and as to whether experience of 9 years and 1 month falls within the words "about 10 years" on the facts of the case, it was for the selection committee to consider whether the appellant's case fell on the right side of "about 10 years". After all, they were considering the total length of experience both in teaching and research and in conjunction with his other qualifications to find out whether he can occupy the post of professor, a post which was merely one concerned with research in economics". The court was further pleased to observe at paragraph 31 of the judgment as under:"31. In our view, the opinion of the experts in the selection committee must be taken to be that the appellant's teaching and research experience satisfied the above condition of "about 10 years". ( 15 ) LEARNED counsel for the second respondent further contends that, the expression 'with 10 years of teaching experience' should be understood as nearing to or proximity to 10 years experience in teaching. In support of this statement, the learned counsel has brought to my notice the meaning of the word 'with' as defined in black's law dictionary. The learned counsel has also brought to my notice the observations made by queen's bench division in the case of trow v ind coope (west midlands) limited and another. In support of this statement, the learned counsel has brought to my notice the meaning of the word 'with' as defined in black's law dictionary. The learned counsel has also brought to my notice the observations made by queen's bench division in the case of trow v ind coope (west midlands) limited and another. It is as under: "with or from. It has been suggested that the words "beginning with" have a different meaning from the words "beginning from" in this way: in calculating 12 months beginning with the date of issue, you include that date in the 12 months (as was done in hare v gocher): whereas in calculating 12 months beginning from the date, you exclude it (as was done in marren v dawson bentley and company limited ). I acknowledge that those cases warrant this distinction between the prepositions "with" and "from". But it is far too subtle for my liking. It is one of those nice distinctions in which lawyers delight. They are out of touch with the common man. If a man contracts to build a house in 12 months beginning with the date when the sod is first turned, it is just the same as if he said 12 months beginning on or from that date. You may well say that date is to be included in either case; but you cannot say that it is included in one case and excluded in the other. For this purpose "with", "from" or "on" a date are equivalent expressions". ( 16 ) TO find out the meaning of the word "with", we need not have to depend on the dictionary meaning of the word or the view of queen's bench division. The Supreme Court had an occasion to consider the meaning of the word 'with' in the case of Delhi development authority v durga chand kaushish. In the said decision, the Supreme Court was pleased to observe:"the meaning of the word 'with' is generally gathered from the context and has to be considered in conjunction with words which precede and those which follow it". ( 17 ) I will advert to the contention of the learned counsel for respondents a little later. ( 18 ) KEEPING these facts in view let me consider the case and claim of the petitioner before this court. The issues that require to be considered and decided by this court are. ( 17 ) I will advert to the contention of the learned counsel for respondents a little later. ( 18 ) KEEPING these facts in view let me consider the case and claim of the petitioner before this court. The issues that require to be considered and decided by this court are. I. Whether the board of appointment was validly constituted as required under sub-section (1) of Section 49 of the act?ii. Whether the 2nd respondent had the requisite qualification for being called for interview, selected and appointed to the post of professor?iii. Whether the board of appointment was justified in inviting the 2nd respondent for interview, since she did not have the 10 years of experience which was the minimum qualification prescribed under the notification?iv. Whether this court could interfere in the decision arrived at by the experts while coming to the conclusion that the second respondent had the requisite qualification prescribed in the notification? V. What order? ( 19 ) BEFORE i consider these issues which I have raised for consideration and decision of this court, first let me notice the parameters of the judicial review of this court in this type of matters. The Supreme Court in the case of chancellor and another v Dr. Bijayananda kar and others, was pleased to observe as under. This court has repeatedly held that the decisions of the academic authorities should not ordinarily, be interfered with by the courts. Whether a candidate fulfills the requisite qualifications or not is a matter which should be entirely left to be decided by the academic bodies and the concerned selection committees which invariably consist of experts on the subjects relevant to the selection". ( 20 ) THE Supreme Court in the case of kuldip chand v state of himachal pradesh and others, while reiterating the observations made by the apex court in dalpat abasaheb solunke's case, supra, have observed as under:". . . . It is needless to emphasise that it is not the function of the court to hear appeals over the decision 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 committee which has the expertise on the subject. The court has no such expertise. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted selection committee which has the expertise on the subject. The court has no such expertise. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material irregularityin the Constitution of the committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the university had constituted the committee in due compliance with the relevant statutes. The committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so-called comparative merits of the candidates as assessed by the court, the high court went wrong and exceeded its jurisdiction". ( 21 ) KEEPING in view the permissible parameters of judicial review in matters of this nature, let me now consider the legal issues canvassed by learned counsel for the petitioner. ( 22 ) THE 1st legal issue that is canvassed by the learned counsel for the petitioner is that the Constitution of the selection committee/boa is contrary to the Provisions of sub-section (1) of Section 49 of the Karnataka state universities act. To appreciate the stand of the learned counsel for the petitioner, let me extract the said provision. Section 49 of the act provides for appointment of teachers etc. Sub-section (2) of Section 49 of the act is relevant and therefore it is extracted. The same reads as under. "49 (2): every such board shall consist of (a) for selections to the posts of professors (readers) and to the post of librarian. Section 49 of the act provides for appointment of teachers etc. Sub-section (2) of Section 49 of the act is relevant and therefore it is extracted. The same reads as under. "49 (2): every such board shall consist of (a) for selections to the posts of professors (readers) and to the post of librarian. (i) the vice-chancellor ex officio chairman; (ii) the chairman of the department council concerned, if he is a professor and if he is not a professor, a professor from any other university in the state, in consultation with the state government and where no such professor is available in any university within the state, such professor in the concerned department from a central institute within the state or from a university in any other state in consultation with the state government; (iii) four experts in consultation with the state government two of whom from a panel furnished by the university grants commission and the others from amongst persons serving in any university established by law in India or any other institution recognised by the state government". ( 23 ) HAVING seen the Provisions, let me look into the Constitution of the board of appointment constituted by the university. The boa consis ted of 5 persons namely, Dr. N. Rudraiah, vice-chancellor, professor b. c. patil, karnatak university, professor p. Balasubramanyam, Madras university, professor s. Sridharaswamy, osmania university and registrar of gulbarga university. According to petitioner, the inclusion of professor b. c. patil as one of the members of the boa is contrary to sub-section (2) of Section 49 of the act. While opposing this stand of the petitioner and his learned counsel, the university in its statement of objeciions justifies the Constitution of boa and further contends that the selection committee so constituted is in accordance with Section 49 (2) of the act. Insofar as the inclusion of professor b. c. patil is concerned they assert that he had served as professor in university college of education, dharwad. He had also served as head of the department of education and dean of education faculty in Karnataka university, dharwad. He retired from the services of the university on 31-7-1991 and he was re-employed for a further period from 1-8-1991 to 21-3-1992. He had also served as head of the department of education and dean of education faculty in Karnataka university, dharwad. He retired from the services of the university on 31-7-1991 and he was re-employed for a further period from 1-8-1991 to 21-3-1992. According to the university, professor b. c. patil was nominated as one of the members of selection committee by the chancellor of the university in consultation with the state government. The university further asserss that the petitioner appeared before the selection committee without any demur and he did not object for being interviewed by the selection committee (boa) and therefore, petitioner is estopped from objecting to the Constitution of the selection committee. ( 24 ) THE fact situation in the instant case is that, petitioner did participate in the interview that was held by the selection committee/boa. Alter participating in the selection process and since he failed in his attempt in getting selected and appointed as a professor, in my opinion, at this stage, he cannot question the Constitution of the selection committte boa. The challenge to the validity of the Constitution of selection committee must be made as soon as the candidate comes to know about infirmity in such constitution. If the petitioner does not dispute the validity of Constitution at the time of selection process and appears for the interview and then, only because the result of the interview was not acceptable to him, cannot turnround and contend that the selection committee was not properly constituted. Such conduct amounts to approbation and reprobation and would disentitle him to any relief. The law on this point is now well-settled. The apex court in the cases of Dr. G. Sarana v university of lucknow and others, suneeta aggarwal v state of haryana and others, madan lal and others v state of jammu and kashmir and others and u. d. lama and others v state of Sikkim and others. ( 25 ) IN Dr. G. Sarana's case, supra, the Supreme Court was pleased to observe as under. G. Sarana v university of lucknow and others, suneeta aggarwal v state of haryana and others, madan lal and others v state of jammu and kashmir and others and u. d. lama and others v state of Sikkim and others. ( 25 ) IN Dr. G. Sarana's case, supra, the Supreme Court was pleased to observe as under. "we do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the Constitution of the selection committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turnround and question the Constitution of the committee. This view gains strength from a decision of this court in manak lal v Dr. Prem chand singhvi and others, where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him". ( 26 ) THE Supreme Court in the case of suneeta aggarwal, supra, was pleased to observe as under. "we have heard learned counsels for the parties. Narration of the aforestated facts would show that the appellant had disentitled herself to seek relief in the writ petition filed by her before the high court. The appellant did not challenge the order of the vicechancellor declining to accord approval to her selection and, on the contrary, she applied afresh for the said post in response to readvertisement of the post without any kind of protest. Not only did she apply for the post, but she also appeared before the selection committee constituted consequent upon readvertisement of the post and that too without any kind of protest, and on the same day she filed a writ petition against the order of the vice-chancellor declining to accord his approval and obtained an ad interim order. In the writ petition she also did not disclose that she had applied for the post consequent upon the second advertisement. In the writ petition she also did not disclose that she had applied for the post consequent upon the second advertisement. The appellant having appeared before the selection committee without any protest and having taken a chance, we are of the view that the appellant is estopped by her conduct from challenging the earlier order of the vice-chancellor. The high court was justified in refusing to accord any discretionary relief in favour of the appellant". (emphasis supplied) let me not burden the judgment with any more decisions of the apex court on this aspect of the matter. In view of the categorical observations made by the apex court, in my opinion, having participated in the selection process, at this stage, petitioner cannot contend before this court that Dr. B. c. patil, who was one of the members of the selection committee, could not have participated in the selection process. In that view of the matter, the 1st contention canvassed by the learned counsel for the petitioner has no merit whatsoever. Accordingly, it is rejected. ( 27 ) THE second issue that requires to be considered by this court is, whether the petitioner had the requisite qualification on the last date of filing of the application i. e. , 30-6-1994. The notification issued by the university while inviting applications to the post of professors prescribes the minimum qualification. In that, the qualification prescribed is that, candidate should be an eminent scholar with published work of high quality, actively engaged in research with 10 years of experience in postgraduate teaching and/or research at the university/national level institutions. A reading of this particular clause in the notification would make it clear that on the last date of receipt of the applications, the applicant concerned should have 10 years of experience in postgraduate teaching and/or research at the university/national level institutions. ( 28 ) ADMITTEDLY, petitioner has that qualification. But the 2nd respondent herein has a teaching experience of 6 years 7 months and 7 days and with regard to research experience, the university has awarded 3 years- for all the candidates and thereby the 2nd respondent's qualification on the last date of filing of the application was 9 years 7 months and 7 days which is less than 10 years. ( 29 ) LEARNED counsel for the petitioner vehemently contends before this court that since the 2nd respondent did not have the necessary and requisite experience as notified by the university in the notification itself, the boa could not have called the 2nd respondent for interview and further, could not have selected her to the post of professor in the department of education, and further the syndicate of the university should not have accepted the illegal recommendation made by boa and should not have issued letter of appointment to the second respondent as professor in the department of education. ( 30 ) TO answer the legal issue raised, let me first notice the declaration of qualification made by the second respondent in her bio-data filed along with the application before the university. In that, she had categorically stated that she had teaching and research experience of one academic year in puc, one academic year in b. ed. College, 6 years postgraduate in department of studies and research in education. The university accepted her statement. Having accepted that she had the requisite qualification, the university had invited her to participate in the selection process. The university being of the view that the 2nd respondent is better qualified than the petitioner, has appointed her as a professor in the department of education by their order dated 31-5-1995. ( 31 ) THE learned counsel for the petitioner states that the university could not have taken into consideration her teaching experience in a b. ed, college while computing the second respondent has requisite qualification often years teaching experience in postgraduate teaching. Per contra, Sri n. b. bhat, learned counsel for the university states that b. ed. Course is also a postgraduate course and therefore, university has rightly taken the teaching experience of the second respondent in b. ed. Course while computing whether the second respondent has 10 years teaching experience. ( 32 ) THE selection and appointment of the second respondent is some time in the month of may 1995. The university till the year 1997 was of the view that b. ed. Course of two years is also a post-graduate course. This can be inferred by one of the documents produced by the petitioner along with his application dated 11-6-2000. The document that the petitioner has produced along with the aforesaid application is the extract of syndicate resolution No. (11), dated 19-4-1997. Course of two years is also a post-graduate course. This can be inferred by one of the documents produced by the petitioner along with his application dated 11-6-2000. The document that the petitioner has produced along with the aforesaid application is the extract of syndicate resolution No. (11), dated 19-4-1997. At item No. (11), the agenda that was placed before the syndicate of the university was with regard to completion of certain courses in the university within a particular timeframe. In the agenda so placed before the syndicate, the b. ed. Course is mentioned as postgraduate course, but the syndicate while approving the aforesaid agenda in its meting held on 17-5-1997 approves the agenda/resolution dated 19-4-1997 with a modification that the courses mentioned in the resolution dated 19-4-1997 as 'postgraduate courses' require to be read as 'graduate courses' only. Therefore, there was some confusion even in the thinking of the university authorities whether b. ed. Course is a postgraduate course or mere graduate course. Because of this confusion, the selection committee when it scrutinised the bio-data of the second respondent in the year 1995 had taken into consideration her teaching experience in b. ed. Course as a postgraduate teaching experience and had invited her for the interview. If there is any mistake and that mistake cannot be attributed to the second respondent and therefore, in my opinion, petitioner's learned counsel is not justified when he asserts that a person who had suppressed the material facts and had made false claims is not entitled to the discretionary relief of this court. ( 33 ) SECONDLY, the apex court in uma shankar sharma v the union of India and others, has observed that the meaning or interpretation of requisite qualification requires to be done, a case by case approach. In the said decision, the court was pleased to observe:"although a candidate must fulfil the requisite qualifications for being considered for recruitment, difficulties often arise with regard to the interpretation of the requisite qualifications. Since qualifications vary from case to case, decisions have turned upon the construction of the specific requirements provided by their rules or administrative instructions in the particular cases before the courts. In such situations, laying down or applying general principles if hardly possible". the court has further observed that:"technical view of the matter wholly unjustified by the intent behind the condition of eligibility. . . . . In such situations, laying down or applying general principles if hardly possible". the court has further observed that:"technical view of the matter wholly unjustified by the intent behind the condition of eligibility. . . . . the terms and conditions of service are intended to be construed reasonably and two technical view can defeat the essential spirit and intent embodied in them". ( 34 ) IN the present case, the second respondent on the last date of filing the application for appointment to the post of professor in the university had a postgraduate teaching experience of 9 years 7 months and 7 days, excluding her teaching experience in b. ed. Course. Her teaching experience was nearer to 10 years teaching experience prescribed by the university in its notification. If hypertechnical view is taken, she may not be eligible for being called for the interview by the selection committee . But the selection committee consisting of experts in the field of education were fully satisfied that the second respondent has the prescribed qualification prescribed in the notification. In my opinion, the view of the experts in the field of education requires to be respected. Since her teaching experience was never doubted by the experts in the selection committee, it may not be proper for this court to annul the selection and appointment only on the ground that teaching experience was short of nearly 4 months than the prescribed qualification. ( 35 ) RECRUITMENT contrary to the published qualification would amount to arbitrary exercise of power and hit by articles 14 and 16 of the constitution. But at the same time, the non-deviation principle must itself be applied reasonably. Ordinarily the rationale underlying the prescription of qualifications in most statutes or rules is to prevent poor or unqualified persons to be appointed to a post in a public service which requires the performance of responsible duties. The selection committee constituted by the university has thought it fit that the second respondent has the requisite qualification notified in the advertisement and therefore, they have selected her from among the eligible and qualified candidates. The apex court while considering more or less -similar situation, in the case of Dr. The selection committee constituted by the university has thought it fit that the second respondent has the requisite qualification notified in the advertisement and therefore, they have selected her from among the eligible and qualified candidates. The apex court while considering more or less -similar situation, in the case of Dr. M. s. mudhol and another v s. d. halegkar and others, has observed that, if the appointment has been made of a candidate, who did not have the requisite qualification and there was nothing on record to show the candidate's projected qualification was other than what he/she possessed, it would be inequitous to make the appointee suffer particularly after a lapse of long time. In the said decision, the court was pleased to observe as under. "since it was the default on the part of the second respondent, director of education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the first respondent continued to hold the post for the last 12 years now, it would be inadvisable to disturb him from the post at this late stage particularly when he was not at fault when his selection was made. He had not at that time projected his qualifications other than what he possessed. If, therefore, in spite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the second respondent had chosen to acquiesce in the appointment, it would be iniquitous to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the second respondent. They are along to be blamed for the same". ( 36 ) KEEPING in view the observations made by the apex court, it may not be proper for this court to disturb the services of the 2nd respondent at this stage for the reason, the selection was made by the boa taking into consideration that the 2nd respondent has the requisite qualification and the recommendation made by boa is accepted by the syndicate of the 'university and after such acceptance, have issued the letter of appointment appointing the second respondent as professor of department of education. For the mistake of the university, the 2nd respondent should not be made to suffer. For the mistake of the university, the 2nd respondent should not be made to suffer. In support of my conclusions, i intend to rely upon the observations made by the apex court in the case of konch degree college, conch jalaun and others v ram sajiwan shukla and another, v. N. Sunanda Reddy v. State Of Andhra Pradesh, and Sushma Suri v. Government of National Capital Territory Of Delhi. ( 37 ) THE Supreme Court in the case of konch degree college, supra, was pleased to observe as under:"5. As regards the qualifications of surendra narain saxena is concerned, indisputably, he was qualified to apply for and seek selection for appointment as a hindi lecturer. He came to be selected and approval was declined on the ground of infraction of the Rule, namely, omission on the part of the management to publish the advertisement in three newspapers, instead published it only in two newspapers. It is mandatory on the part of the management to ensure that due publicity should be made in the newspapers to put on notice all intending candidates for selection, the infraction would necessarily be considered mandatory in the light of the object the act seeks to achieve. The management should be insisted upon compliance of the rigour of the rule. They cannot take shelter that all had applied for selection. But since the respondent has been continuing, was duly qualified and selected and as per the orders of this court, he was reinstated, we do not, at this distance of time, incline to interfere with the appointment, though the statutory compliance was not made by the appellant-committee, to invalidate the appointment". ( 38 ) THE Supreme Court in the case of V. N. Sunanda Reddy, supra, was pleased to observe as under. "15. Before parting we may mention one submission on behalf of the telugu medium students. It was submitted that if the weightage given to them in recruitment is to be found fault with, those telugu medium candidates who have already been appointed may not be disturbed otherwise irreparable injury will be caused to them. "15. Before parting we may mention one submission on behalf of the telugu medium students. It was submitted that if the weightage given to them in recruitment is to be found fault with, those telugu medium candidates who have already been appointed may not be disturbed otherwise irreparable injury will be caused to them. It was also submitted that those telugu medium students whose appointments could not be made on account of the pendency of these proceedings may be given one more chance to compete for future recruitment on such posts and for that purpose suitable age relaxation may be given to them as otherwise they will be out of employment market. In our view this request is quite reasonable and deserves to be granted. We, therefore, direct that despite our finding that 5 per cent weightage given to the telugu medium graduates in the present case is violative of articles 14 and 16 (1) of the constitution, those telugu medium graduates who have already been appointed on the strength of such weightage and who are working on their concerned posts should not be disturbed and their appointments will not be adversely affected by the present judgment. On the other hand, those telugu medium graduates who have been selected on the strength of the weightage but to whom actual appointments have not been given on account of pendency of the present proceedings should be given a chance to compete for such posts as and when future recruitment to such posts is restored to and for that purpose only once suitable age relaxation may be given to them in case they are otherwise found suitable on merits to be appointed in such future direct recruitment to such posts. In other words, only on account of the fact that they have become age barred, they should not be denied appointments on the strength of their meritorious performance. This will be by way of only one time concession about age relaxation". ( 39 ) THE Supreme Court in the case of sushma suri, supra, was pleased to observe:"13. However, we are not in a position to give any relief to the appellant before us now because when she commenced this litigation, recruitment process was still going on and it has gone too far ahead. ( 39 ) THE Supreme Court in the case of sushma suri, supra, was pleased to observe:"13. However, we are not in a position to give any relief to the appellant before us now because when she commenced this litigation, recruitment process was still going on and it has gone too far ahead. Now that the same is complete and the selected candidates have already been appointed and they have reported for duty at different places and they are not impleaded as parties in these proceedings, it would not be proper to upset such appointments. All that we can now do is to direct the authorities concerned including the high court and government to process the applications for recruitment of candidates in future in the light of the position as explained above. If there are any pending recruitments, the view taken by us shall be applied to them also. The appeal, therefore, stands disposed of in the manner stated above". ( 40 ) THE learned counsel for petitioner has brought to my notice the observations made by a division bench of this court in the case of Dr. S. p. padma prasad v the registrar ofgulbarga university. That was a case where the learned single judge though had come to the conclusion that the respondents 2 and 3 did not possess the prescribed qualification and though had opined that their selection and appointment should be declared as null and void, did not disturb the appointment on the sole ground that they had served the university for more than five years. In the facts and circumstances of that case, the court was pleased to observe:"7. We find ourselves unable to agree with the operative portion of the order of the learned judge in para 8 of the order in appeal. When the university has prescribed a minimum 55% marks as eligibility criteria, it is not open to the university to select and appoint respondents 2 and 3 even though they secure lesser per- centage than that of 55% in terms of the qualification conditions. Learned judge also ruled that their appointments are to be de- clared invalid and illegal. When the university has prescribed a minimum 55% marks as eligibility criteria, it is not open to the university to select and appoint respondents 2 and 3 even though they secure lesser per- centage than that of 55% in terms of the qualification conditions. Learned judge also ruled that their appointments are to be de- clared invalid and illegal. Having come to that conclusion the learned judge in our opinion has committed an error in not declar- ing their appointment as illegal and invalid and has also commit- ted an error in continuing them even after their ineligibility in terms of the rules. 8. In the circumstances we accept the argument of the appellant and hold that respondents 2 and 3 are to vacate their post on account of their want of minimum marks in terms of the advertisement". ( 41 ) IN my opinion, the case on which reliance was placed by learned counsel may not assist him in any manner whatsoever, for the reason, that the appointment of the second respondent is neither illegal nor invalid. ( 42 ) IN the result, petition is dismissed. Rule discharged. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly. --- *** --- .