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2006 DIGILAW 777 (KAR)

SHIVANNA NAIK v. KARNATAK UNIVERSITY, DHARWAD

2006-09-25

D.V.SHYLENDRA KUMAR

body2006
ORDER Writ petition by a person who had aspired for the post of lecturer in law, a post, which had been notified for selection by the 1st respondent-Karnataka University in terms of notification dated 22-6-2001 (copy at Annexure-C to the petition). The post was sought to be filled up as a post which was characterised as a backlog vacancy post and which could be filled up by applicants belonging to Scheduled Caste Community. 2. It appears the petitioner as well as seven other persons were applicants to this post, amongst whom the 3rd respondent-Sr1 M. Vishwanath has been selected and appointed and it is aggrieved by the appointment of the 3rd respondent, the present writ petition. 3. It appears that amongst the eight applicants one applicant remained absent at the interview and seven others including the petitioner and the 3rd respondent, had been awarded marks in terms of the provisions of the statute framed under Section 40(1)(k) of the Karnataka State Universities Act, 2000. 4. Sri Sateesh M. Doddamani, learned Counsel for the writ petitioner has mainly urged that the selection of the 3rd respondent was bad for the reason that the 3rd respondent was aged 27 years at the time of filing his application; that in terms of the Karnataka State Civil Services (Unfilled Vacancies Reserved for the Persons belonging to the Scheduled Castes and the Scheduled Tribes) (Special Recruitment) Rules, 2001, dated 21-11-2001 (copy at Annexure-F to the petition) and particularly under Rule 6 of this Rules, the lower age limit in respect of the applicants who aspire for posts identified as backlog vacancies is 29 years, the upper age limit prescribed is 40 years and at the relevant time the 3rd respondent was only 27 years and petitioner was aged 37 years and therefore the application of the 3rd respondent should not have been considered at all, but nevertheless the same having been considered and the 3rd respondent also having been selected and appointed, the appointment is bad in law. Learned Counsel on behalf of the writ petitioner had also complained about the manner in which the selection committee had awarded marks in favour of the different candidates and this was for the reason that the petitioner though had very good academic qualification and in fact was a rank holder in LLM degree examination, the qualifying examination, requisite for persons applying to the post, nevertheless 3rd respondent being selected is indicative of some lacunae in the process of selection and therefore matter calls for interference. 5. Sri Sateesh M. Doddamani, learned Counsel for the petitioner had made submissions on the basis of these two legal contentions and the matter had been heard for some time after issue of notice to the respondents. The University and its selection committee are represented by Sri V.B. Ganachari, learned Counsel for 1st respondent and by Sri G.K Shivaprakash, learned Counsel for the 3rd respondent. 6. The matter had been heard earlier in the absence of Counsel for respondents and an order had been passed and later on at their instance had been recalled and posted for further hearing. 7. Submissions were reiterated. It was submitted by Sri Shivaprakash, learned Counsel for the 3rd respondent that reliance placed on the rule referred to above is not proper; that the post had been notified as on 22-6-2001, when these rules had not come into force; that a different set of rules held the field at that time; that there is no prescription of lower age limit and therefore the consideration of the application of the 3rd respondent was neither invalid nor contrary to any statutory provisions. It is also submitted that the 3rd respondent is also a very merited candidate and his performance was good and the selection committee if have selected and appointed the 3rd respondent on such better merit, no interference is called for. 8. On the part of the University, statement of objections has been filed and the selection is sought to be defended. 9. 8. On the part of the University, statement of objections has been filed and the selection is sought to be defended. 9. Sri Ganachari, learned Counsel for the University has urged that the Rule relied upon by the learned Counsel for the petitioner is not the rule applicable for the present selection; that the selection has been made in conformity with the applicable Rule and in consonance with the statute framed under Section 40(1)(k) of the Universities Act; that in the matter of such selection by the Committee, the statute provides for a system of marks to each candidate and if the marks for the interview purpose is for a total marks of 60 and which has been further split into different heads such as five marks earmarked for the purpose at the qualifying level, five marks for additional or special qualifications and 15 marks earmarked for teaching experience by the candidate, by awarding one marks for each year of regular full time teaching experience to an applicant and 15 maximum marks in' respect of the heading research contributions and publication and further a total of 20 maximum marks earmarked for a candidate to be given by the interview committee based on the performance of the applicant at the interview; that the marks under each head has been awarded for all the candidates who had appeared at the interview and as it was found that the 3rd respondent had secured the highest marks as against the total marks of 60, he had been selected and appointed; that there is absolutely nothing wrong with the selection and appointment. It is submitted that the writ petitioner having secured much lower marks i.e., 18 marks as against 23 marks secured by the 3rd respondent, the 3rd respondent automatically got himself selected and has been appointed; that there is no illegality committed by the University and therefore the writ petition deserves to be dismissed. 10. It is submitted that the writ petitioner having secured much lower marks i.e., 18 marks as against 23 marks secured by the 3rd respondent, the 3rd respondent automatically got himself selected and has been appointed; that there is no illegality committed by the University and therefore the writ petition deserves to be dismissed. 10. It is after such submission etc., and on noticing that the 1st respondent had contended that the respondent-University had considered an ineligible candidate i.e., 3rd respondent for the post was not tenable as the rule relied upon by the Counsel for the petitioner was not one applicable I had passed the following order on 18-9-2006: "The only question that perhaps requires examination in this petition filed by a person who was not selected to the post of lecturer and who has questioned the selection of the 3rd respondent to the post is as to whether the merit list as prepared by the Board in terms of Section 53(7) of the Karnataka State Universities Act, 1976 is one which has properly ranked the 3rd respondent as the highest merited person and the petitioner though had a slight better academic qualification is qualified is still ranked lower than the respondent. This can be ascertained by only looking into the awarding of marks by the Board of selection in favour of the petitioner vis-a-vis the 3rd respondent and other candidates under the 3 headings viz., academic qualification, weightage to higher academic qualification and the performance at the interview. The learned Counsel appearing for the University submits that he will place the records indicating the manner in which the Selection Board has awarded marks and needs a week's time to secure the records from Dharwad. List of matter next week". 11. Matter had come up subsequently and had been adjourned and has been listed for further orders. 12. Sri Ganachari, learned Counsel for the University has placed before the Court the original documents of what is said to be the original recording indicating the awarding of marks by the members who constituted the expert committee and submits that in the light of the marks as had been obtained by the petitioner vis-a-vis the 3rd respondent and also by other applicants the selection and appointment is fully justified. 13. 13. I have perused the material placed by the learned Counsel for the University and this has been perused by Sri Sateesh M. Doddamani, learned Counsel for the petitioner and Sri G.K Shivaprakash, learned Counsel for the 3rd respondent also. 14. While I am not fully satisfied about the manner in which this record is placed, placing some individual loose sheet separated from the main file. However, I do not find any reason to reject this as it is submitted that it is in a confidential report which had been submitted by the selection committee and which had been kept separately. 15. Be that as it may, as it is seen in the case of the petitioner there is no scope for suspicion or apprehension that the members of the Committee were either biased in favour or against any of the candidates interviewed and marks has been awarded by them on the basis of their performance and in terms of the statutory provisions. The records submitted by the learned Counsel for the University is accepted at its face value. 16. However, I cannot help observing that the procedure followed and the manner of maintaining records does not inspire the confidence of the Court and leaves much to be desired. It is proper that the University maintains in one file, the records containing all the developments starting from the date on which the post is notified and till appointment order is issued. It is for the University to ensure that such procedure is one which passes the test of fairness and which inspires the confidence of the Court, when this Court reviews such administrative action and has to be necessarily satisfied about the fairness and non-biased and non-prejudicial action on the part of any statutory authority. 17. Though Sri Sateesh M. Doddamani, learned Counsel for the petitioner has urged that the very system of awarding marks is suspect; that awarding 20 marks at the interview which is entirely in the discretion of the members of the expert committee, who interview the candidates may not be a very healthy procedure in selecting a candidate as there is scope for either favouring a chosen candidate or to eliminate a candidate depending on the marks awarded in the interview to the applicant. 18. 18. I am of the view that such possibility by itself cannot result in interference in the matter of awarding of marks in terms of the statute framed under Section 40(1)(k) of the Act as prima facie there is no allegation of mala fide or biased action and in such circumstances the presumption necessarily is in favour of the respondent that things have taken place in consonance with the required law and procedure. 19. Though it is sought to be contended that the very awarding of marks, with 20 marks earmarked for interview and leaving it to the discretion of the interview Committee is on the higher side, the interview being by the expert committee comprising of subject experts drawn from out of the different fields having expertise and the marks awarded by each of the member of such Committee having been totalled for not only assessing merit/performance of the candidate, based on the actual marks awarded at the time of the interview, I am of the view that when such is the composition role of the selection committee, there cannot be an inference that the awarding of marks at the interview is a procedure which calls for interference by the Court as an act of arbitrariness or as an unfair action. 20. If the marks as awarded by the expert committee is accepted, then there cannot be any two opinions about the selection of the 3rd respondent as against the petitioner being fair and proper as obviously the 3rd respondent has secured higher marks than the petitioner. 21. In the circumstances, I do not find any scope or need for interference with the selection procedure and with the appointment of the 3rd respondent to the post of lecturer. 22. Accordingly this petition is dismissed. Rule discharged.