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2014 DIGILAW 431 (GUJ)

SADHU RAMKUMARDAS SHASTRI v. M. S. UNIVERSITY

2014-03-26

K.J.THAKER, VIJAY MANOHAR SAHAI

body2014
JUDGMENT (PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI) 1. We have heard Mr.Keyur A.Vyas, learned advocate appearing for the appellant. 2. This Letters Patent Appeal has been filed by the appellant-original petitioner challenging the judgment and order dated 30.4.2013 passed by the learned Single Judge in Special Civil Application No.9322 of 2008, whereby the learned Single Judge has been dismissed the writ petition. 3. The brief facts of this case are that the the appellant has completed his study up to post graduation in Sanskrit Mahavidyalaya, Baroda and secured distinction in Vyakrran Shastra. On 29.4.2005, the respondent Nos. 1 and 2 issued advertisement notification inviting application for the post of Upadyapaka (non-teaching). The appellant applied pursuant to the said advertisement. Thereafter, the respondent Nos. 1 and 2 issued call letter on 9.2.2008. The appellant represented Dharmashastra and Vedanta are not the subjects, which are being taught at undergraduate level yet specialized qualification is prescribed, just to oust the appellant. 3.1. Pursuant to the appellant's representation the said interview was cancelled. On 13.3.2008, the respondent Nos. 1 and 2 issued fresh advertisement-notification inviting application for the said post, altering prescription of specialized qualification and added one more option functional Sanskrit (Sahitya). The appellant again represented that there is no such subject like Functional Sanskrit which is taught in the Mahavidyalaya. The appellant was not called for the interview but the appellant learnt that his name is included in the names of the persons called for interview and therefore, he appeared before the authority however he was not allowed the appear before the selection board on the ground that he is not possessing interview call-letter. The appellant has challenged the entire interview procedure on the ground that the same suffers from illegal, arbitrary and favoritism. On 2.7.2008, the appellant filed writ petition being Special Civil Application No.9322 of 2008 before this Court. The Hon'ble Court has been pleased to issue notice in the aforesaid writ petition. On 30.4.2013, the aforesaid writ petition has been dismissed by this Court. Hence, this appeal. 4. Learned counsel for the appellant submitted that the Dharmashastra, Vedanta/Functional Sanskrit are the subjects which are not taught at under graduate level. Vyakranshasta is a compulsory subject which is being taught in all classes and in all other specialized branches. On 30.4.2013, the aforesaid writ petition has been dismissed by this Court. Hence, this appeal. 4. Learned counsel for the appellant submitted that the Dharmashastra, Vedanta/Functional Sanskrit are the subjects which are not taught at under graduate level. Vyakranshasta is a compulsory subject which is being taught in all classes and in all other specialized branches. The said post was vacant and appellant was only available meritorious candidate for manning the said post, however, only for the purpose of ousting the appellant on the ground that the said subject is not advertised, a tailor made advertisement is issued. In fact though Dharmshastra and Vedanta functional Sanskrit are not subjects taught at under graduate level, however, the said subject is shown as one of the subjects of specialization requirement. Learned counsel for the appellant further submitted that the subject of the Vedanta is not taught at under graduate level and for graduate level respondent No.6 is not qualified for appointment because he does not possess requisite qualification. So far as Dharmashastra is concerned, the said subject is also not taught at under-graduate level. 5. Learned counsel for the appellant further submitted that the Vyakran Shastra is being taught at all level as common subject and therefore, there was a work load of the said subject and there is no other person available with respondent No. 1 and 2 for teaching in the Mahavidyalaya yet, just to deprive the petitioner's candidature the said subject is deliberately not included in the advertisement. He further submitted that above referred interviews were over on number of occasion the appellant has attempted to see the principal and express his grievances for not allowing him to participate in the interview but respondents did not heed. He further submitted that the appellant made several efforts to the concerned department but till date no step has been taken and the learned Single Judge ought to have appreciated and considered the submissions made and grounds raised in the said Special Civil Application. Therefore, the judgment and order passed by the learned Single Judge is bad in law and deserves to be quashed and set aside. 6. Before the learned Single Judge, the appellant-original petitioner had described in his petition the selection of respondent No.6, i.e. Mr.K.J.Purohit with 52% marks, though Dharma Shastra and Vedanta/ Functional Sanskrit (Sahitya) are not the subjects to be included. 6. Before the learned Single Judge, the appellant-original petitioner had described in his petition the selection of respondent No.6, i.e. Mr.K.J.Purohit with 52% marks, though Dharma Shastra and Vedanta/ Functional Sanskrit (Sahitya) are not the subjects to be included. The respondent University had opposed the petition by filing reply affidavit dated 6.3.3011. The appellant-original petitioner has also filed affidavit dated 10.10.2012. One more additional affidavit on behalf of the respondent University is filed on 4.2.2013. 7. As against the above arguments, the case of the University is that it wanted to appoint the persons with higher qualification specialization in the subjects of Jyoti Shastra, Dharma Shastra, Karmakand, Vedanta/ Functional Sanskrit (Sahitya) for the purpose of imparting good education to the students by such qualified persons at all levels. With this idea in mind, applications were invited from the persons having specialization in the aforesaid subjects. It is not correct that Vedanta/ Functional Sanskrit (Sahitya) was not the subject required for the post of Upadhyaka. The petitioner, who has qualification in Vyakaran Shastra, wanted to exclude other subjects. However, since the University wanted the persons having specialization in the above subjects, post of Upadhyaka was decided to be filled in with the persons having qualifications and specialization in the said subjects. The case of the University is that the Ordinance of the University gives powers to the Vice Chancellor to fix qualifications for different categories of nonteaching and teaching posts and the Vice Chancellor has in exercise of such powers fixed the qualifications which are provided in the notification for the post in question. In fact, the petitioner did not participate in the selection as his representation to include Vyakaran Shastra was not accepted. The petitioner cannot impose upon the University to fill up the post of Upadhyaka with the persons having qualification only in the subject of Vyakaran Shastra. He submitted that it is for the University and its authorities to decide what subjects are required for the post in the University. The appointments to the post of Upadhyaka advertised vide notification at Annexure-’A’ have been made in accordance with law and there is no illegality committed in the said process of appointment. Respondent No.6 is qualified for the post of Upadhyaka as he has also secured 64% of marks in Sahitya from M.S. University. 8. Since, the appellant is the Graduate of Sanskrit with 55% marks. Respondent No.6 is qualified for the post of Upadhyaka as he has also secured 64% of marks in Sahitya from M.S. University. 8. Since, the appellant is the Graduate of Sanskrit with 55% marks. He made an application in pursuance of the advertisement No.ADE 15/04 of 2007-2008 for the post of Upadhyaka. The requisite qualification was 55% marks in the M.S. University or equivalent with qualification/specialization in subjects of Jyotishacharya, Dharmshastra, Karmkanda, Vedanta/Functional Sanskrit (Sahitya). The appellant does not have these qualifications. The order of the learned Single Judge in paragraph Nos. 10, 11, 12 and 13 has observed as under: “10. Having heard the petitioner–party in person and learned advocates for the respondents, it appears that in 2005-2006, the University had issued notification inviting applications for the post of Upadhyaka (nonteaching) requiring candidates with specialization in the subjects of Jyoti Shastra, Dharma Shastra, Karmakandand Vedanta. Totalfour posts of Upadhyaka (nonteaching) were notified, out of which, two posts were reserved for S.T. and SEBC candidates respectively. It appears that the said notification was cancelled and the notification, which was subsequently issued in 2007-2008, further included the subject of Functional Sanskrit (Sahitya) in the list of specialization. Thus, specialization required by the notification of 2007-2008 for the post of Upadhyaka was in the subject of Jyoti Shastra, Dharma Shastra, Karmakand, Vedanta/ Functional Sanskrit (Sahitya). Inviting the candidates with qualification of Archarya/ Master Degree with 55% marks from Indian University or equivalent qualification from recognized University in the subject qualification with specialization in the above-referred subjects, goes to show that the University and its authorities were much concerned about selecting and appointing more qualified persons for the post in question. 11. The petitioner has failed to point out that the subject of Vyakaran Shastra was the only required qualification for the post in question. The petitioner has also failed to point out that the University and its authorities could not have fixed the qualification or specialization in the subjects mentioned in the notification for the post in question. 12. It clearly appears from the Ordinance of the University that the powers were delegated to different authorities, including Vice Chancellor, for different items.ItemNo.40inthedelegatedpowersprovidesfor fixation of the qualification for different categories of non-teaching staff and the power is given for such item to the Vice Chancellor. In exercise of such powers, qualification has come to be fixed for the post of Upadhyaka. In exercise of such powers, qualification has come to be fixed for the post of Upadhyaka. It is required to be noted that it is for the concerned authorities to laydown the qualifications for appointment to different posts in the University and such exercise of powers providing for qualification for recruitment to the post in the University cannot be subject to judicial review. Therefore, contention raised by the petitioner that Vyakaran Shastra could be the only subject for the post in question cannot be accepted as it was not for the petitioner to Decide what could be the qualification for the post in question but, it was for the respondent University and its authorities to decide the qualification for recruitment to the post in question. 13. So far as the grievance against respondent No.6 is concerned, it is required to be noted that he has held two additional qualifications and one of which his Degree in Sahitya with 64% of marks and Sahitya, being one of the subjects required, it cannot be said that he was not having requisite qualification with 55% marks. In reply affidavit, details about process sunder taken by Selection Committee are pointed out wherefrom it clearly appears that interviews of 31 candidates were taken and on comparison of the merits of the candidates, ultimately final selection came to be made and appointments came to be given to the private respondents. No illegality in such selection process has been pointed out by the petitioner.” 9. The appellant has raised the following submissions in grounds E, F and G, which reads as under: “E. The learned Single Judge ought to have appreciated and considered that the subject is not taught at under graduate level and for graduate level respondent No.6 is not qualified for appointment because he does not possess requisite qualification. So far as Dharmashastra is concerned, the said subject is also not taught at Under-graduate level. Meera Dewidi is another apple of the eye and in order to accommodate the said lady the subject specialization requirement is put in advertisement. F. The learned Single Judge ought to have appreciated and considered that the Vyakran Shastra is being taught at all level as common subject and therefore, there was a work load of the said subject and there is no other person available with respondent Nos. F. The learned Single Judge ought to have appreciated and considered that the Vyakran Shastra is being taught at all level as common subject and therefore, there was a work load of the said subject and there is no other person available with respondent Nos. 1 and 2 for teaching in the Mahavidyalaya yet, just to deprive the petitioner's candidature the said subject is deliberately not included in the advertisement. G. The learned Single ought to have appreciated and considered that above referred interview were over on number of occasion the appellant has attempted to see the principal and express his grievances for not allowing him to participate in the interview but respondents did not heed. The appellant is very poor and earn his livelihood by doing puja path in various Temples and it was very difficult for him to approach this Court due to financial constrain the appellant could not immediately approach before this Court.” 10. It goes without saying that the appellant had not participated in the selection procedure and he should not be permitted to raise issue now as he is himself not qualified. Admittedly, the appellant did not possess the requisite qualifications and therefore, the grounds urged in the memo of the appeal are not germane to the notification issued way back in 200506, which requires specialization in the subjects of Jyoti Shastra, Dharma Shastra, Karmakand, Vadanta/Functional Sanskrit (Sahitya). The principles of administrative jurisprudence will not permit the writ Court to go into the question what qualification or specialization should be mentioned in the notification and just because the appellant was having Vyakaran subject, which was only required for the post in question. We do not find any fault with the findings of the learned Single Judge or the University. 11. We are in complete agreement with the view taken by the learned Single Judge that the appellant does not possess Functional Sanskrit (Sahitya) qualification and therefore, he was not eligible for the post in question. It goes without saying that a person, who not qualified, a person who has not called due to nonfulfillment of the criteria of the advertisement, it is not open for the candidate to object the conditions imposed in the advertisement and cannot contend those conditions, should not have been imposed as he gets exclude. It goes without saying that a person, who not qualified, a person who has not called due to nonfulfillment of the criteria of the advertisement, it is not open for the candidate to object the conditions imposed in the advertisement and cannot contend those conditions, should not have been imposed as he gets exclude. It cannot be said that that a candidate has right to call for judicial review the terms and conditions of the advertisement unless it is proved that the terms and conditions were not germane to the post in question. We cannot overlook this principle of administrative jurisprudence. 12. For the aforesaid reasons, we do not find any merit in this appeal. Hence, this appeal fails and is accordingly dismissed at the admission stage itself.