IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.17271 OF 2014 (S-RES) BETWEEN:
DR. LAKSHMI V AGED ABOUT 41 YEARS W/O MR. GOVINDA PRASAD R/AT. NANDANA THOTA HOUSE NEAR MANGANAHALLI CROSS ULLALU MAIN ROAD JNANA BHARATHI POST BANGALORE-560056.
(By Mr. S.P. SHANKAR, SR. ADV. A/W Mr. P.G.YATNAL, ADV.) AND:
1. STATE OF KARNATAKA … PETITIONER REP. BY ITS PRINCIPAL SECRETARY TO GOVERNMENT DEPARTMENT OF HIGHER EDUCATION M.S.BUILDING, DR. AMBEDKAR VEEDI BANGALORE-560 001.
2. THE PRINCIPAL SECRETARY TO GOVERNMENT DEPARTMENT OF HIGHER EDUCATION M.S. BUILDING, DR. AMBEDKAR VEEDI BANGALORE--560 001.
3. MANGALORE UNIVERSITY REPRESENTED BY ITS VICE CHACELLOR MANGALA GANGOTHRI KONAJE, MANGALORE-574199.
4. PROFESSOR T.C. SHIVASHANKAR MURTHY VICE CHACELLOR MANGALORE UNIVERSITY MANGALA GANGOTHRI KONAJE, MANGALORE-574199.
5. DR. DHANANJAYA AGED ABOUT 38 YEARS S/O MR. NARAYANAM RESIDING AT:
"DHATRI" HANDELU PUTHIGE POST SAMPIGE MOODABIDRE-574 227 DAKSHINA KANNADA.
(By Mr. V. SHIVAREDDY, HCGP FOR R1 & R2 … RESPONDENTS Mr. MURTHY DAYANAND NAIK, ADV. FOR R3 Mr. CHANDRANATH ARIGA, ADV. FOR R5 R4 SERVED) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE SELECTION OF THE R-5 TO THE POST OF ASSISTANT PROFESSOR IN KANNADA BY THE R-3 UNIVERSITY IN THE PETITIONER'S CATEGORY AS PER THE NOTIFICATION DTD 10.5.2013 WHICH IS AT ANNX-A AND, THEREAFTER, DIRECT THE UNIVERSITY TO SELECT THE PETITIONER FOR THE POST OF ASSISTANT PROFESSOR IN THE DEPARTMENT OF KANNADA & ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.S.P.Shankar along with Mr.P.G.Yatnal, learned counsel for the petitioner.
Mr.V.Shivareddy, learned High Court Government Pleader for the respondent Nos.1 and 2.
Mr.Murthy Dayanand Naik, learned counsel for respondent No.3.
Mr.Chandranath Ariga, learned counsel for respondent No.5.
2. The writ petition is admitted for hearing.
With consent of the parties, the same is heard finally.
3. In this petition under Article 226 & 227 of the Constitution of India, the petitioner inter alia seeks a writ of certiorari for quashment of selecting of respondent No.5 to the post of Assistant Professor in Kannada in pursuance of the advertisement Notification dated 10.05.2013 and to direct the respondent No.3 University to select the petitioner for the post of Assistant Professor in Kannada. In order to appreciate petitioner’s contention few facts need mention which are stated hereinafter.
An advertisement was issued by the Mangalore University on 10.05.2013, by which applications were invited from the eligible candidates for appointment to the post of Assistant Professors and Associate Professors in the Department of Kannada in Post Graduate Department and Constituent Colleges. The petitioner as well as respondent No.5 and 66 other candidates applied in response to the aforesaid advertisement notice. The scrutiny committee short listed ten candidates including the petitioner and respondent No.5, who were called for interview on 06.11.2013. A final select list was published on 30.11.2013, in which respondent No.5 was shown to have selected as Assistant Professor in Kannada. An order of appointment was issued in favour of respondent No.5 on 02.12.2013. In the aforesaid factual background, the petitioner has approached this Court.
4. Learned Senior Counsel for the petitioner submitted that the petitioner is better qualified than respondent No.5 and her performance and merit is qualitative and therefore, the petitioner ought to have been given more marks than respondent No.5. However, the respondent No.5 was given more marks in viva voce and therefore, the petitioner could not be selected for the post in question. It is further submitted that object of process of selection for entry into public service is to secure more suitable person for the job and the selection has to be based on merit, tested impartially and objectively. In support of aforesaid submissions, reference has been made to decision of Supreme Court in ‘LILA DHAR VS. STATE OF RAJASTHAN AND OTHERS’, AIR 1981 SC 1777 as well as a decision of this Court dated 20.11.2013 passed in ‘MR.SRINATH B.S. VS. STATE OF KARNATAKA AND OTHERS’ in W.P.NO.17475/22014 and decision of ‘PUNJAB AND HARYANA HIGH COURT IN JASKARAN SINGH VS. PUNJABI UNIVERSITY AND OTHERS’ in CWP No.16659/2011 dated 15.05.2015.
5. On the other hand, learned counsel for the respondent No.3 submitted that the selection has been made strictly in accordance with the guidelines framed by the University’s Grant Commission and petitioner had participated in the process of selection and therefore, she cannot be permitted to turn around and challenge the process of selection. In support of aforesaid submissions, reliance has been placed on the decisions of Supreme Court in ‘MADRAS INSTITUTE OF DEVELOPMENT STUDIES AND ANOTHER VS. K.SIVASUBRAMANIYAN AND OTHERS’, (2016) 1 SCC 454 and in the case of ‘UTTAR PRADESH PUBLIC SERVICE COMMISSION VS. RAHUL SINGH AND ANOTHER’, (2018) 7 SCC 254. Learned counsel for the respondent No.5 while supporting the submissions made by learned counsel for the respondent No.3 submitted that evaluation of eligibility of the suitable candidates including the petitioner and respondent No.5 has been made by five member committee on the basis of the guidelines framed by the Universities Grant Commission. It is further submitted that the petitioner has participated in the process of selection without any demur and therefore, cannot be allowed to challenge the process of selection. In support of aforesaid submissions, reliance has been placed on decisions of the Supreme Court in ‘OMPRAKASH SHUKLA VS. AKHILESH KUMAR SHUKLA’, AIR 1986 SC 1043, ‘MADAN LAL AND OTHERS VS. STATE OF JAMMU AND KASHMIR AND OTHERS’, (1995) 3 SCC 486 and ‘UNION OF INDIA AND OTHERS VS. S.VINOD KUMAR AND OTHERS’, AIR 2008 SC 5.
6. I have considered the submissions made on both sides and have perused the record. Admittedly, the criteria for selection was fixed by the respondent No.3 University and the marks were also allocated, which were to be awarded to the candidates under different heads. Under the heads of Academic Record, Research Performance, Assessment of Domain Knowledge & Teaching Skills and Performance in the interview, 37.5, 20, 30 and 12.5 as minimum percentage of marks were fixed respectively. As per the guidelines framed by the Universities Grant Commission, the parameters for assessing the academic record, research performance, domain of knowledge, teaching skills for the post in question was also fixed. A Committee comprising of five members, after comparative evaluation of the merits of the candidates and in particular petitioner as well as respondent No.5 have awarded 64 marks to the petitioner, whereas, the respondent No.5 has been awarded 70.5 marks. It is pertinent to mention here that out of 100 marks, only 12.5 marks were reserved for interview, out of which, petitioner has secured 5.8 marks whereas respondent No.5 has secured 8.3 marks. The difference between the marks awarded to the petitioner as well as respondent No.5 in the interview is not grossly disproportionate but is marginal. It is well settled law that this Court in exercise of powers of judicial review cannot sit in appeal over the decision taken by a committee of experts and substitute its opinion with regard to eligibility of candidates.
7. The Supreme Court in ‘MARRIPATI NAGARAJA AND OTHERS VS. GOVERNMENT OF ANDRA PRADESH AND OTHERSS.’, (2007) 11 SCC 522 has held that if a candidate participates in the process of selection without any demur, such a candidate cannot be permitted to challenge the process of selection. Similar view has been taken in ‘DHANANJAY MALIK AND OTHERS VS. STATE OF UTTARANCHAL AND OTHERS’, (2008) 4 SCC 171 and it has been held that a candidate who has participated in the process of selection without any demur is estopped from challenging the selection criteria as well as the process of selection on the ground that the same was not made as per the rules and the prescribed educational qualifications were not adhered to. Similar view was taken in ‘MADRAS INSTITUTE OF DEVELOPMENT STUDIES AND ANOTHER’ and ‘UTTAR PRADESH PUBLIC SERVICE COMMISSION’ supra. In the instant case, admittedly the petitioner has participated in the process of selection without any demur and without any objection. Therefore, after having participated in the process of selection she cannot be permitted to turn around and challenge the process of selection.
In the result, I do not find any merit in the petition, the same fails and is hereby dismissed.
Sd/- JUDGE SS