JUDGMENT : B. R. SARANGI, J. 1. Dr. Ashok Kumar Panda has filed W.P.(C) No. 848 of 2016 seeking following reliefs: "It is therefore most humbly prayed that this Hon'ble Court may be graciously pleased to issued RULE NISI, in the nature of writ of mandamus, any other writ/writs and/or order/orders and/or direction/directions calling upon the opposite parties to show cause as to why: (i) The decision of the opposite party No.2 vide list dated 09.01.2016 as under Annexure-4 in publishing the list of 44 candidates to attend the interview on 20.01.2016 is bad in the eyes of law and liable to be quashed and set aside. (ii) Permit the petitioner to attend the interview for the post of Lecturer in Odia in pursuance to advertisement made vide notification No. 3609 dated 24.04.2015 as under Annexure-2. (iii) Direct the opposite parties to act as per UGC (Minimum Qualification Required for the Appointment of Teachers in Universities and Institutions Affiliated to it) (3rd Amendment) Regulation,2009. (iv) Direct the opposite parties to conduct written test as envisage under Clause-IV (S) of General Instructions mentioned in the advertisement No.3609 dated 22.04.2015 as under Annexure-3. (v) If the opposite parties fails to show cause or show insufficient and false cause may be the said Rule NISI absolute. And/or to pass such other order/orders, direction/directions as this Hon'ble Court deems just, fit, equitable and proper in the facts and circumstances of the present case." Dr. Bibhuti Bhusan Acharya has filed W.P.(C) . No.4008 of 2016 seeking following reliefs: "Under the above circumstances it is humbly prayed that this Hon'ble Court may graciously be pleased to issue a writ in appropriate nature to quash selection process, selection and consequential appointment if any made in favour of the opposite party No. 3 in the post of lecturer in Odia in pursuance of the advertisement dated 22.04.2015 and Resolution dated 17.02.2016 of the Syndicate of Berhampur University at item No. 118 under Annexure-4. And this Hon'ble Court may be graciously be pleased to quash the resolution of the Syndicate of Berhampur University dated 27.06.2011 under Resolution No.279. And this Hon'ble Court may be graciously be pleased to quash the resolution of the Syndicate of Berhampur University dated 27.06.2011 under Resolution No.279. And this Hon'ble Court may graciously be pleased to direct the respondent Nos.1 and 2 to redraw the select list afresh and appoint the petitioner as lecturer in Odia in Berhampur University in pursuance of the advertisement dated 22.04.2015 with all consequential service and financial benefits." Since both the writ petitions arise out of the self-same advertisement dated 22.04.2015 published in Odia daily "The Samaj" for appointment of Lecturer in Odia in Berhampur University under unreserved category and both the petitioners challenge the selection process of the said post, they are heard analogously and disposed of by this common judgment. 2. The factual matrix of the case, in hand, is that Berhampur-University was established under the provisions of Orissa Universities Act,1989. The Registrar, Berhampur University issued notification No.3609 dated 22.04.2015, by way of advertisement, inviting applications for the posts of Professor, Reader and Lecturer in different subjects, which includes one unreserved post of Lecturer in Odia. It was indicated in the advertisement that the application forms and instructions can be downloaded from the Berhampur University website. The candidates submitting the downloaded application must pay the prescribed application fee, i.e., Rs.1000/- (Rs.750/- for Scheduled Caste and Scheduled Tribe) in the form of SBI Bank Draft drawn in favour of Controller of Finance, Berhampur University, payable at SBI, Bhanjabihar along with filled-in-applications, failing which their applications would not be considered, and the same should reach to the Registrar on or before 25.05.2015 and, as such, the applications received thereafter would not be considered. Clause-II of the advertisement prescribed the qualification and experience for the post of Lecturer. Both the petitioners, having requisite qualification, applied for the post within the time specified to the Registrar of the University. Thereafter, a list of eligible candidates for the post of Lecturer in Odia under unreserved category, in response to the advertisement dated 22-04-2015, was prepared wherein the name of Dr. Ashok Kumar Panda, petitioner in W.P.(C) No.848 of 2016 did not appear. Therefore, it pre-supposes that his application was rejected, though under sub-clause (s) of Clause-IV-General Instructions it was clarified that the University may conduct written test for selection of Lecturers if the number of eligible applicants for a particular post is more than ten. Ashok Kumar Panda, petitioner in W.P.(C) No.848 of 2016 did not appear. Therefore, it pre-supposes that his application was rejected, though under sub-clause (s) of Clause-IV-General Instructions it was clarified that the University may conduct written test for selection of Lecturers if the number of eligible applicants for a particular post is more than ten. It is stated that all total 146 candidates were applied for the post of Lecturer in Odia, including the petitioners, but the University did not conduct any written test amongst the candidates. Even though Dr. Ashok Kumar Panda, the petitioner in W.P.(C) No.848 of 2016 satisfies the eligibility condition prescribed under Clause-II with regard to qualification and experience for the post of Lecturer in Odia, having Ph.D. qualification, thereby he was to be exempted from NET/SLET/SET for the post of Asst. Professor/Lecturer in Odia, but his candidature was not included in the select list on the ground that he did not qualify in the NET examination. Hence he filed W.P.(C) No. 848 of 2016 2.1 So far as Dr. Bibhuti Bhusan Acharya, the petitioner in W.P.(C) No.4008 of 2016 is concerned, after the scrutiny was done, his name was found place in the select list. The Berhampur University fixed the guidelines for appointment of teaching staff with approval of Syndicate by resolution dated 27.01.1984, wherein the minimum qualification prescribed by the UGC for various categories of teaching posts was adopted and for career marks the criteria was fixed. As per the criteria, marks were to be awarded towards for general career, P.G. research degree, teaching experience, research publication etc. Besides,25 marks were fixed for viva voce with total marks of examination at 75. In other words, out of the total marks of 75, for viva voce 25 marks were allocated. The petitioner was called upon to appear in the interview which was conducted by the selection committee on 20.01.2016. On the basis of the marks allocated, the petitioner-Dr. Bibhuti Bhusan Acharya was selected by the selection committee and recommended his name to the Syndicate for approval and appointment as Lecturer in Odia. But the Syndicate qualified Dr. M.R. Bisoyee on the ground that he has acquired qualifying marks in viva voce test as per G.R.279 dated 27.06.2011 and Chancellor's Secretariat letter No.450/SG(HE) dated 31.05.2011. The recommendation of the selection committee has been changed at the level of the Syndicate due to Dr. But the Syndicate qualified Dr. M.R. Bisoyee on the ground that he has acquired qualifying marks in viva voce test as per G.R.279 dated 27.06.2011 and Chancellor's Secretariat letter No.450/SG(HE) dated 31.05.2011. The recommendation of the selection committee has been changed at the level of the Syndicate due to Dr. D.P. Pattnaik, who was the direct teacher of Dr. M.R. Bisoyee and was the guide in Ph.D., was one of the members of the selection committee, who conducted the interview. Dr. Bibhuti Bhusan Acharya has filed W.P.(C) No.4008 of 2016 contending that the selection process is contrary to the provisions of law and suffers from mala fide action of the opposite parties. 3. Mr. S.N. Das, learned counsel appearing for Dr. Ashok Kumar Panda, the petitioner in W.P. (C) No.848 of 2016 contended that the petitioner passed M.A. in Odia from Berhampur University in the year 1995 securing 63.7%. Thereafter, he completed M.Phil., in Odia in the year 1999 and submitted his Ph.D. thesis on 27.02.2002 and acquired Ph.D. in Odia vide notification dated 01.10.2003 published by the Berhampur University. He was appointed as a Lecturer in Odia on 31.07.2000 in Ramachandra Mardaraj Science College, Khalikote an aided educational institution, against leave vacancy as per 9th plan of University Grants Commission and continued till 31.03.2002. Thereafter, he was again appointed as Lecturer in Odia in the said college on 30.05.2005 and joined on 04.06.2005 and continued till 31.03.2007 against leave vacancy and was drawing his salary as per UGC norms. Subsequently, in the year 2009, the petitioner joined as a guest faculty in Khalikote Autonomous College from August,2009 till February,2011. Thereafter, the petitioner on 28.09.2012 finally joined as Lecturer in Odia in Sri Bharat Pati Mahavidyalaya, Samantiapalli against +3 First Post and is continuing there as such. 3.1 Pursuant to advertisement dated 22.04.2015, he applied for the post of Lecturer in Odia. Though there was provision of conducting written test for selection of Lecturer as per sub-clause (s) of Clause-IV of general instruction of the advertisement, but no written test was conducted. 3.1 Pursuant to advertisement dated 22.04.2015, he applied for the post of Lecturer in Odia. Though there was provision of conducting written test for selection of Lecturer as per sub-clause (s) of Clause-IV of general instruction of the advertisement, but no written test was conducted. As per clause (iii) of the qualification and experience for the post of Lecturer, wherein it has been specifically mentioned that notwithstanding anything contained in sub-clauses (i) and (ii) above, 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, 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. It is contended that admittedly the petitioner does not possess the qualification of NET/SLET/SET, but as he has acquired Ph.D. Degree, in view of Clause-III of the qualification and experience for the post, he should have been allowed to appear in the interview. But when final list was published on 09.01.2016 in the website of the University, out of 146 candidates, names of 44 candidates were found place, excluding the name of the petitioner. 3.2 The petitioner approached the authority concerned to find out the reasons for non-inclusion of his name in the final list, he came to know that he was not shortlisted as because he did not come under Clause-III of the advertisement and was not issued with call letter being barred by Regulation,2009. It is further contended that when selection to the post of Lecturer in Odia was conducted by the University in the year 2011, he was issued with a call letter on 09.07.2011 to appear in the interview and, as such, it cannot be said that exclusion of the name of the petitioner was because of Clause-III of the eligibility criteria. Therefore, non-inclusion of the name of the petitioner is arbitrary, unreasonable and contrary to the provisions of law. Therefore, non-inclusion of the name of the petitioner is arbitrary, unreasonable and contrary to the provisions of law. 3.3 It is further contended that the advertisement issued as per the University Grants Commission notification published in Gazette of India dated 11.07.2009 wherein the UGC (minimum qualification required for the appointment of teachers in universities and institutions affiliated to it) (3rd Amendment) Regulation,2009 clearly speaks that candidates who have submitted Ph.D. thesis to the University in the concerned subject on or before 31st December,2002 are exempted from appearing NET examination. Applying the said provision, as the petitioner had already submitted Ph.D. thesis on 27.12.2002, he was to be exempted from appearing the NET examination. Therefore, the final merit list excluding the name of the petitioner cannot sustain and the same is liable to be quashed. 3.4 It is further contended that by the time the petitioner approached this Court, he was not aware of the fact that the select committee had selected Dr.M.R. Bisoyee and coming to know of such fact the petitioner filed misc. case No.3092 of 2016 seeking direction to the opposite parties to produce the records of the selection committee and, while entertaining such application, this Court directed the opposite parties to produce the same. Subsequently, an application bearing misc. case No.4008 of 2016 was filed by the selected candidate Dr. M.R. Bisoyee to be impleaded as party to the proceeding and vide order dated 19.04.2016 such misc. case was allowed and Dr. M.R. Bisoyee has been impleaded as opposite party No.6 to the writ petition. Therefore, essentially non-inclusion of the name of the petitioner in the final select list and selection of opposite party No.6 is under challenge in the present application. 3.5 To substantiate his contention, he has relied upon the judgment of the Apex Court rendered in the case of Kalyani Mathivanan v. K.V. Jeyraj, (2015) AIR SC 1875 and judgment of the Allahabad High Court rendered in the case of Syed Abrar Ahmad v. UGC and others, (2016) 4 AllLJ 194 (W.P.(C) No.60363 of 2014. (Reported in). 4. Mr. B.B. Mohanty, learned counsel appearing for Dr. (Reported in). 4. Mr. B.B. Mohanty, learned counsel appearing for Dr. Bibhuti Bhusan Acharya, the petitioner in W.P.(C) No.4008 of 2016 contended that the petitioner has got requisite qualification and on scrutiny of his application his name was enlisted in the list of eligibility candidates for the post of Lecturer in Odia under unreserved category, pursuant to advertisement dated 22.04.2015, and he was also called upon to appear before the selection committee for interview on 20.01.2016. Accordingly, he participated in the process of selection and found that one Dr. D.P. Patnaik, who was the Ph.D. guide of Dr. M.R. Bisoyee, opposite party No.3 in the present application, was a member of such committee. Therefore, on the basis of mala fide alleged against one of the member of the selection committee, who is none else but the Ph.D. guide of Dr. M.R. Bisoyee, selection of opposite party No.3 cannot sustain in the eyes of law. It is further contended that though several pleadings have been made in the writ petition, there is no denial to the same in the counter-affidavit. Thereby, selection of Dr. M.R. Bisoyee, opposite party No.3 has to be quashed. To substantiate his contention, reliance has been placed on the judgments of the Apex Court in Bhupinderpal Singh v. State of Punjab, (2000) AIR SC 2011; K. Manjushree v. State of A.P., (2008) AIR SC 1470; Secretary, A.P. Public Service Commission v. B. Swapna, (2005) 4 SCC 154 ; and Maharastra SRTC v. Rajendra Bhimrao Mandve, (2001) 10 SCC 51 : ( AIR 2002 SC 224 ). 5. Dr. A.K. Mohapatra, learned Sr. Counsel appearing along with Mr. A.K. Mohapatra, learned counsel for opposite parties, by way of filing counter-affidavit, though admitted the factual aspects of the case, but contended that Dr. A. K. Panda, the petitioner in W.P.(C) No. 848 of 2016 who applied for the post of Lecturer in Odia is neither NET/SLET/SET qualified nor possessed Ph.D. degree in accordance with the Minimum Standard and Procedure for Award of M.Phil./Ph.D. Degree Regulation,2009. Therefore, he was not found suitable and consequentially his name was not included in the list of eligible candidates for the post of Lecturer in Odia. Therefore, he was not found suitable and consequentially his name was not included in the list of eligible candidates for the post of Lecturer in Odia. It is further stated that pursuant to advertisement dated 22-04-2015 only 67 applications were received not 146 and after due scrutiny the scrutiny committee constituted for the purpose published a list of 44 eligible candidates for the post of Lecturer of Odia under unreserved category, without including the name of Dr. A.K. Panda in the said list. It is further contended that as per the advertisement written examination was to be conducted, if the number of eligible candidates for a particular post would be more than ten. But as the eligible candidates were found qualified NET (National Eligibility Test), the Syndicate/University authority did not consider it wise to conduct written test for them. It is also contended that though in the advertisement it was prescribed that the 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 would be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions, but the petitioner having acquired Ph.D. degree in October,2003, which is much before the UGC Regulation,2009 came into force, the question of exemption of the petitioner from NET/SLET/SET does not arise. Therefore, he justifies the action of the authority in preparing the list of eligible candidates excluding the name of the petitioner, i.e., Dr. Ashok Kumar Panda. Further, referring to the counter-affidavit filed in W.P.(C) No.4008 of 2016, Dr. A.K. Mohapatra, learned Sr. Counsel appearing along with Mr. A.K. Mohapatra, learned counsel for the opposite party-University contended that opposite party No.4-Dr.D.P. Pattnaik, being the Dean, Faculty of Humanities and Social Science, was one of the members of the selection committee and not as a HoD of Odia. He did not ask any question in the interview nor did he sign the mark sheet. The selection committee selected the petitioner to be number one and opposite party No. 3 Dr. M.R. Bisoyee was kept in the waiting list. The selection committee is only the recommending body and the Syndicate is the Appointing Authority. He did not ask any question in the interview nor did he sign the mark sheet. The selection committee selected the petitioner to be number one and opposite party No. 3 Dr. M.R. Bisoyee was kept in the waiting list. The selection committee is only the recommending body and the Syndicate is the Appointing Authority. Thereby, when the recommendation of the selection committee was considered by the Syndicate, it was found that the petitioner had only secured 5 marks out of 15 in viva voce test. By letter dated 31.05.2011 of the Chancellor, University Syndicate was allowed to prescribe qualifying mark for personal interview in recruitment to teaching posts in the University and in keeping with the same the Syndicate meeting dated 27,06,2011 resolved that 50% of the total marks assigned for the viva voce test be fixed as the qualifying marks for the UR and SEBC candidates. Thereby, the recommended 1st position, which was secured by the petitioner, was rejected and the second position holder in the waiting list, who is opposite party No.3-Dr. M.R. Bisoyee, was chosen for appointment. Therefore, no illegality or irregularity has been committed by the authority concerned while causing the selection of Dr. M.R. Bisoyee. 6. Pursuant to the notice issued by this Court, though opposite party No.3-Dr. M.R. Bisoyee entered appearance through learned counsel Mr. A.K. Behera, but at the time of hearing he was not present nor filed any counter affidavit to substantiate his contention, rather he has stepped into the shoes of the University and kept silent in the proceeding itself. Since appointment to the post of Lecturer in Odia under unreserved category pursuant to the advertisement dated 22.04.2015 has been stalled, this Court is not inclined to grant any further adjournment and proceeded to decide the matter on the basis of the materials available on record. 7. This Court heard Mr. S.N. Das, learned counsel for the petitioner in W.P.(C) No. 848 of 2016, Mr. B.B. Mohanty, learned counsel for the petitioner in W.P.(C) No.4008 of 2016 and Dr. A.K. Mohapatra, learned Sr. Counsel appearing along with Mr.A.K. Mohapatra, learned counsel for the opposite party-Berhampur University in both the writ petitions. Pleadings having been exchanged, with the consent of learned counsel for the parties, these writ petitions are being disposed of finally at the stage of admission. 8. A.K. Mohapatra, learned Sr. Counsel appearing along with Mr.A.K. Mohapatra, learned counsel for the opposite party-Berhampur University in both the writ petitions. Pleadings having been exchanged, with the consent of learned counsel for the parties, these writ petitions are being disposed of finally at the stage of admission. 8. Before delving into the core issues involved in both the writ petitions, the relevant provisions of the Act, Rules and Regulation are to be referred to. To consolidate and amend the laws relating to certain Universities in the State of Orissa, the legislature of the State of Orissa has enacted an Act called "The Orissa Universities Act,1989". For the purpose of adjudication of the case, relevant provisions are extracted below:- "Section 2(p) : "University" means a University established or deemed to have been established under this Act. Section- 3(1): The following Universities shall be deemed to have been established under this Act, namely, XXX XXX XXX (ii) the Berhampur University established under the Berhampur Universities Act,1966 having jurisdiction over the district of Ganjam, Koraput and Phulbani excluding the Boudh sub-division thereof. Section-4 (2):- The following shall be the teachers of the ' University, namely, (i) Professor; (ii) Readers; (iii) Lecturers; and (iv) Such other teachers as may be prescribed to be teachers of the University. 21. (1) Unless otherwise specified in this Act, all officers of the University, shall be appointed by the Vice-Chancellor on the recommendation of a Selection Committee consisting of Director, the Registrar, one member selected by the Syndicate from among themselves and wherever necessary, to experts appointed by the Vice-Chancellor: Provided that in respect of the posts fully financed by the University Grants Commission under an approved scheme, the selection of person(s) for appointment to such posts shall be made in accordance with the specific guidelines, if any, issued by the said Commission, (2) The teachers of a University shall be appointed by the Syndicate of that University on the recommendation of a Selection Committee after scrutinizing all the papers concerning the selection. XXX XXX XXX (3) The Selection Committee referred to in sub-section (2) shall consist of: (i) the Vice-Chancellor; (II) Director; (HI) three experts selected by the Vice-Chancellor from out of a panel prepared by the Syndicate of the University; and (iv) an expert nominated by the Chancellor in case of appointment to the post of professor. XXX XXX XXX (3) The Selection Committee referred to in sub-section (2) shall consist of: (i) the Vice-Chancellor; (II) Director; (HI) three experts selected by the Vice-Chancellor from out of a panel prepared by the Syndicate of the University; and (iv) an expert nominated by the Chancellor in case of appointment to the post of professor. XXX XXX XXX (5) Where the Selection Committee fails to make any specific recommendation or where the Syndicate differs from the recommendation made by the Committee the matter shall be referred to the Chancellor whose decision thereon shall be final. 24. XXX XXX XXX (5) Where the Selection Committee fails to make any specific recommendation or where the Syndicate differs from the recommendation made by the Committee the matter shall be referred to the Chancellor whose decision thereon shall be final. 24. (1) Subject to the provision of this Act, the Statutes:- (i) shall provide fertile following matters, namely:- (a) the procedure to be followed for the election, selection of nomination of members of the different authorities of the University; (b) matters relating to registration of graduates and of College teachers and maintenance of registers therefore; (c) the extent of autonomy which a College, and Institution or a department may have and the matter in relation to which such autonomy may be exercised; (d) the procedure to be followed at the meetings of the authorities of the University and the quorum required therefore; and (ii) may provide for all or any of the following matters, namely:- (a) the constitution, powers and duties of the Faculties, Boards of Studies, Finance Committee or such other authorities or bodies as the University may, from time to time, deem necessary to appoint; (b) the Constitution and functions of Governing Bodies of Colleges; (c) the admission of Educational Institutions as Colleges and the withdrawal of privileges of Colleges so admitted; (d) the residential arrangements for students of the University; (e) the mode of appointment and duties of examiners; (f) the conferment and withdrawal by the University of Degrees, Diplomas, Certificates and other Academic distinctions; (g) the general discipline and control of the University; (h) the accounts to be kept and the use to be made of the funds of the University; (i) manner of recruitment of officers excluding the vice-Chancellor, teachers and other employees and conditions of their services; (j) powers and duties of the officers, teachers and other employees of the University; (k) rules to regulate the conduct of University employees; (l) inspection of affiliated colleges; (m)special arrangements for Women, the Scheduled Castes and the Scheduled Tribes; (n) any other matter which is required to be or may be prescribed; XXX XXX XXX (5) The Syndicate may, from time-to-time, make any proposals for new Statutes or for the amendment or repeal of any of die existing Statutes to the Chancellor. Provided that in academic matters or matters relating to teachers or students, the Syndicate shall consult the Academic Council before making any such proposal. Provided that in academic matters or matters relating to teachers or students, the Syndicate shall consult the Academic Council before making any such proposal. (6) On receipt of a proposal under sub-section (5), the Chancellor in consultation with the State Government, may either disallow it or allow it with or without modification. (7) No Statute or addition to the Statutes or amendment or repeal of the Statutes made by the Syndicate shall have validity until it is allowed by the Chancellor. In pursuance of the power conferred under sub-section (3) of section 24 of the Orissa Universities Act,1989 (Orissa Act 5 of 1989), the State Government framed a statute called "The Orissa Universities First Statute,1990". Relevant provisions of the said statute are extracted below: 21. Subject to the provision of the Act, the Syndicates shall have the following powers and functions, namely:- XXX XXX XXX (9) To prescribe the qualifications of teachers of colleges admitted to the privileges of the University and of teachers of the University and the constituent colleges subject to the qualifications if any prescribed in this behalf by the University. Grants Commission, the Bar Council of India, All India Council for Technical Education, Medical Council of India or such other All India Statutory Bodies or the State Government, as the case may be. Schedule-A of the statute 258, which was issued by order dated 02.04.2003, of which (clause 6) states as follows : "viva-voce" -15 marks". General Instructions and details of qualifications, experience, scale of pay etc. of recruitment of faculty positions of the Berhampur University pursuant to advertisement dated 22.04.2015, read thus: XXX XXX XXX Lecturer (Scale of Pay Rs.15,600-Rs.39,100 with AGP of Rs.6,000) (i) Good academic record with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master's Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign university. (ii) Besides fulfilling the above qualification, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET/SET. (ii) Besides fulfilling the above qualification, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET/SET. (iii) Notwithstanding anything contained in sub-clause (i) and (ii) above, 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, 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. (iv) NET/SLET/SET shall also not be required for such Masters Programme in disciplines for which NET/SLET/SET is not conducted. General Instruction dated 06.05.2004 was issued by the Registrar, Berhampur University regarding qualification, experience, scale of pay etc. Clause-(l) of the said instruction reads thus: "NET shall remain compulsory requirement for appointment as Lecturer even for candidates having Ph.D. degree. However, the candidate who have completed M.Phil degree by 31.12.1993 or have submitted Ph.D. thesis to the university in the concerned subject on or before 31.12.2002 are exempted from appearing in the NET examination. In case such candidates fail to obtain Ph.D. degree, they shall have to pass NET Examination." The UGC (Minimum qualifications required for the appointment and career advancement of teachers in universities and institutions affiliated to it) (3rd Amendment), Regulation,2009, the provisions mentioned in the said regulation has been substituted by following paragraphs: 'NET shall remain the minimum eligibility condition for recruitment and appointment of Lecturers in Universities/Colleges/Institutions. Provided, however, that candidates, who are or have been awarded Ph.D. Degree in compliance of the ' University Grants Commission (Minimum Standards and Procedure for Award of Ph.D. Degree) Regulations,2009, shall be exempted from the requirement of the minimum eligibility condition of NET/5LET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions. 9. Keeping the above regulated provisions in view, this Court proceeded to adjudicate the case of Dr. Ashok Kumar Panda, the petitioner in W.P.(C) No.848 of 2016. The admitted fact is that he does not possess the NET/SLET/SET qualification, but he had acquired Ph.D. degree by the time the advertisement was issued. He has submitted his application for the post of Lecturer in Odia under unreserved category. Ashok Kumar Panda, the petitioner in W.P.(C) No.848 of 2016. The admitted fact is that he does not possess the NET/SLET/SET qualification, but he had acquired Ph.D. degree by the time the advertisement was issued. He has submitted his application for the post of Lecturer in Odia under unreserved category. Needless to say that all the Universities, including Berhampur University, are adopting the exemption from requirement of minimum eligibility condition of qualifying NET/SLET/SET for recruitment and appointment of Lecturer in case of the candidates who have been awarded Ph.D. degree as per the UGC (Minimum qualifications required for the appointment and career advancement of teachers in universities and institutions affiliated to it) (3rd Amendment), Regulation,2009. Acquisition of Ph.D. degree by the petitioner is not disputed, but he has not qualified NET/SLET/SET. That by itself cannot disentitle the petitioner from participating in process of selection to the post of Lecturer in Odia under unreserved category pursuant to advertisement issued by the opposite party-University, in view of Regulation,2009. Further, as per the general instruction dated 06.05.2004 issued by opposite party No.2 under sub-clause (i) of clause IV, it has been stated that NET shall remain compulsory requirement for appointment as Lecturer even for candidates having Ph.D. degree. But, the candidates who have completed M.Phil degree by 31.12.1993 or have submitted Ph.D. thesis to the University in the concerned subject on or before 31.12.2002 are exempted from appearing in the NET examination. Admittedly, the petitioner has submitted his Ph.D thesis prior to 31.12.2002, i.e., on 27.12.2002 and by the process he is exempted from appearing the NET examination and basing upon such criteria he was also called upon to appear in the interview pursuant to advertisement issued on 01.05.2012 by Ravenshaw University and that issued by Berhampur University in 2011. In view of Exemption being granted under Regulation,2009 read with notification issued by the University, non-inclusion of the name of the petitioner in the list of eligible candidates for the post of Lecturer in Odia in response to the advertisement dated 22.04.2015 in Annexure-4 amount to arbitrary and unreasonable exercise of power. Though the petitioner contended that there were 146 applications, the same was disputed and it is contended on behalf of the University that only 67 applicants were considered and out them 44 names were indicated in the list of eligible candidates. Though the petitioner contended that there were 146 applications, the same was disputed and it is contended on behalf of the University that only 67 applicants were considered and out them 44 names were indicated in the list of eligible candidates. Non-inclusion of the name of the petitioner on such a flimsy ground is untenable, particularly when the candidature of the petitioner pursuant to advertisement issued by the very same University in 2011 he has been granted exemption under Regulation 2009 and General Instructions issued by the University in Annexure-8 series dated 06:05.2004. Therefore, the action of the authorities in excluding the name of the petitioner from the eligibility list of candidates cannot sustain. The University authorities are directed to include the name of the petitioner in the list of eligible candidates for the post of unreserved, category pursuant to advertisement dated 22.04.2015, if the petitioner is otherwise eligible and satisfy the requirement as per the provisions contained in the Act, Statute, Rules, Regulations and instructions and conditions of advertisement issued by the authority from time-to-time. 10. So far as the case of Dr. Bibhuti Bhusan Acharya, the petitioner in W.P.(C) No.4008 of 2016 is. concerned, as per the minutes of meeting held on 17.02.2016, under agenda No. 118 it was resolved as follows: "118. Considered the Proceedings of the Selection Committee held on 20.01.2016 for the post of Lecturer in Odia : Resolved that : After a detailed discussion it is resolved that the qualified candidate Dr. Manoranjan Bisoyee (who secured the qualifying marks at the viva-voce as per SR No.279 dated 27.06.2011 in pursuance of Chancellor's Secretariat Letter No.450/SG (HE) dated 31.05.2011) be appointed as Lecturer in Odia as no further orders have been received from the Hon'ble High Court of Odisha till 17.02.2016 on the case filed by Sri Ashok Kumar Panda vide W.P.(C) No. 848 of 2016." 11. Pursuant to aforesaid resolution of the Syndicate, Dr. M.R. Bisoyee, opposite party No.3 has been declared and selected against one post of Lecturer in Odia under unreserved category. As per the provisions contained under sub-section (2) of Section 4 of the Act,1989, the Lecturers are the teachers of the University. Pursuant to aforesaid resolution of the Syndicate, Dr. M.R. Bisoyee, opposite party No.3 has been declared and selected against one post of Lecturer in Odia under unreserved category. As per the provisions contained under sub-section (2) of Section 4 of the Act,1989, the Lecturers are the teachers of the University. As per sub-section (2) of Section 21 of the Act, the teachers of a University shall be appointed by the syndicate of that University on the recommendation of a selection committee after scrutinizing all the papers concerning the selection. As per sub-section (3) of Section 21 of the Act, the selection committee referred to in sub-section (2) shall consist of the vice-Chancellor, Director, three experts selected by the vice-Chancellor from out of a pane prepared by the Syndicate of the University and an expert nominated by the Chancellor in case of appointment to the post of Professor. Sub-section (4) of Section 21 of the Act states that the quorum of a meeting of the selection committee shall be four of whom at least two shall be experts, including the expert nominated by the Chancellor, if any. Sub-section (5) of Section 21 of the Act states that where the selection committee fails to make any specific recommendation or where the Syndicate differs from the recommendation made by the committee, the matter shall be referred to the Chancellor, whose decision thereon shall be final. Taking into consideration the above specific provisions, pursuant to advertisement issued on 22.04.2015 in Annexure-2 by the Berhampur University, the petitioner, along with 67 others as stated by the University (146 stated in W.P.(C) No.848 of 2016), applied for the post and a selection committee was constituted by the Syndicate to scrutinize the applications and finally a list of eligible candidates for the post of Lecturer unreserved-01 in response to the advertisement dated 22.04.2015 was prepared which contained 44 names including the name of the petitioner as well as opposite party No.3. Both were called for viva-voce test by the committee and the selection committee recommended the case of the petitioner to be appointed as a Lecturer under unreserved category. But the syndicate qualified opposite party No.3-Dr. M.R. Bisoyee on the ground that he has acquired the qualified marks at the viva-voce test as per G.R.279 dated 27.06.2011 in pursuance of the Chancellor's Secretariat letter No.450/SG(HE) dated 31.05.2011. But the syndicate qualified opposite party No.3-Dr. M.R. Bisoyee on the ground that he has acquired the qualified marks at the viva-voce test as per G.R.279 dated 27.06.2011 in pursuance of the Chancellor's Secretariat letter No.450/SG(HE) dated 31.05.2011. Consequentially, the Syndicate differed from the recommendation made by the committee. If the Syndicate differed from the recommendation made by the committee, then the matter should have been referred to the Chancellor, whose decision is final. Instead of sending the matter to the Chancellor, the Syndicate passed the resolution under agenda No.118, which is contrary to the provision contained under sub-section (5) of Section 21 of the Act,1989. In agenda No.118, reliance has been placed to G.R.279 dated 27.06.2011 in pursuance of the Chancellor's Secretariat letter No.450/SG(HE) dated 31.05.2011. In the minutes of meeting held on 17-02-2016 under any other matter, it was resolved as follows: "9. Any other matter: The Vice-Chancellor, Berhampur University has drawn attention of Hon'ble Chancellor to the amended Statute 258 of the Orissa Universities (Amendment) Statute 2003 wherein award of marks for candidates for recruitment to teaching position in universities has been prescribed. He further stated that 15 marks have been prescribed under viva-voce. He has suggested for a qualifying marks under viva-voce out of the above 15 marks on the ground that candidates having good academic career fall miserably during personal interview. The Biju Pattnaik University of Technology with the approval of its Board of Management has prescribed qualifying mark for personal interview/viva-voce test for the candidates out of the total marks earmarked for the viva-voce. The Vice-chancellor, Berhampur University solicited the kind approval of the Hon'ble Chancellor for prescribing a minimum qualifying mark for the viva-voce test. After much discussion, it was felt desirable that like the BPUT the Vice-Chancellors of other Universities may take the matter to their respective Syndicate for appropriate decision without diluting the stipulations in the said Statute." 12. In the above resolution, the provisions contained in Statute-258 have been taken note of. Under Statute 258 it has been stated that subject to the provisions of the Statutes and the qualification and experience if any prescribed by the University Grants Commission, the appointing authority of the respective posts shall be competent to make recruitment to the various posts and to lay down an objective system of evaluation of the career, experience, etc. of the candidates for the post. of the candidates for the post. The system of evaluation of candidates for various teaching posts which may be adopted mutatis mutandis for other posts also is given in Schedule-A. As per the order of the Chancellor dated 02.04.2003 under Schedule-A issued in Statute-258 under clause 6, it has been stated viva-voce (15 marks). But no minimum mark has been fixed in the viva-voce test for such qualification. Accordingly, the Syndicate passed the resolution on 27.06.2011 prescribing qualifying marks in viva-voce test before the selection committee for teaching positions in the University in pursuance of the proceedings of the interaction meeting of the Vice-Chancellor held on 04.03.2011 as indicated in letter dated 31.05.2011. Accordingly, the syndicate resolved that 50% of the total marks assigned for the viva-voce test would be the qualifying mark for UR and SEBC category candidates. For SC and ST category, the qualifying marks would be 40% of the total marks assigned for the viva-voce test. But fact remains, the advertisement issued by the authority neither indicates any such condition nor was any communication to that extent made by the authority before starting of the selection process. Admittedly, when the selection committee recommended the name of the petitioner for appointment, the Syndicate changed the recommendation of selection committee on the ground of non-acquisition of qualifying marks in viva-voce test and without placing the matter before the Chancellor as per clause 5 of Section 21 of the Act, selected opposite party No.3-Dr.M.R. Bisoyee taking into account the GR No.279 dated 27.06.2011 and pursuant to Chancellor Secretariat letter No.450/SG/(HE)/dated 31.05.2011 without communicating the same to the candidates well in advance. Thereby, the authorities have changed the rule of the game after the game is played, which they are prohibited to do in view of the law laid down by the apex Court in K. Manjushree A.P. public Service Commission and Maharastra SRTC mentioned supra. 13. It was urged before this Court that Dr. D.P. Pattnaik, who was one of the members of the selection committee, was the Ph.D. guide of opposite party No. 3-Dr. M.R. Bisoyee. Though Dr. D.P. Pattnaik is arrayed as opposite party No. 4 in W.P.(C) No. 4008 of 2016 and against him mala fides have been alleged, neither he refuted such allegation by filing counter affidavit nor placed any material contrary to the same. M.R. Bisoyee. Though Dr. D.P. Pattnaik is arrayed as opposite party No. 4 in W.P.(C) No. 4008 of 2016 and against him mala fides have been alleged, neither he refuted such allegation by filing counter affidavit nor placed any material contrary to the same. But in the counter affidavit filed by the University it has been admitted that he was a member of the selection committee not in the capacity of HoD of Odia but in the capacity of Dean, and Faculty of Humanities and Social Science. It is further admitted that he has not signed the proceedings, which itself indicates that Dr. P.P. Pattnaik is well aware of the fact that his student to whom he guided for Ph.D. thesis was a candidate for the selection of Lecturer in Odia and in order to facilitate him, he became the member of the selection committee and deliberately did not sign the proceeding, which itself speaks volume about his conduct. Therefore, it cannot be ruled out that Dr. D.P. Pattnaik, who was a member of the selection committee, must have influenced the Syndicate to select opposite party No.3, being a Dean and Faculty of Humanities and Social Science. 14. On the conspectus of facts and the legal position, as discussed above, this Court is of the considered view that the selection of opposite party No.3, i.e., Dr. M.R. Bisoyee, as Lecturer in Odia under unreserved category in the University, pursuant to the Syndicate decision taken on 18.02.2016 in Annexure-4 against agenda No.118, cannot sustain in the eye of law and the same is liable to be quashed and is hereby quashed. 15. Accordingly, W.P.(C) No.848 of 2018 filed by Dr. Ashok Kumar Panda and W.P.(C) No.4008 of 2016 filed by Dr. Bibhuti Bhusan Acharya are allowed. The matter is remitted back to the University authorities to prepare a fresh list of eligible candidates for the post of Lecturer in Odia under unreserved category, pursuant to advertisement dated 22.04.2015, by including name of Dr. Ashok Kumar Panda, petitioner in W.P.(C) No. 848 of 2016. Bibhuti Bhusan Acharya are allowed. The matter is remitted back to the University authorities to prepare a fresh list of eligible candidates for the post of Lecturer in Odia under unreserved category, pursuant to advertisement dated 22.04.2015, by including name of Dr. Ashok Kumar Panda, petitioner in W.P.(C) No. 848 of 2016. Thereafter, a fresh selection shall be conducted by the selection committee, to be constituted by the Syndicate in accordance with law, from out of the list of eligible candidates and prepare a fresh merit list and place the same before the Syndicate for its approval and thereafter the Syndicate shall take necessary steps for appointment of Lecturer in Odia against the post of unreserved category. The selection process shall be confined to the list of eligible candidates prepared and published by the authorities on 09.01.2016, by including the name of Dr. Ashok Kumar Panda, petitioner in W.P.(C) No. 848 of 2016. Needless to say, the entire exercise shall be completed within a period of four months from the date of passing of this judgment. 16. Both the writ petitions are accordingly allowed. However, there shall be no order as to costs.