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Thursday, December 29, 2016

Whenever the Board of Regents considers a person placed lower in merit in the list of selected candidates recommended by the Selection Committee, it can do so only by recording reasons as to why the case of the person placed above is being overlooked and the person below is considered the best for being appointed. In the present case, adequate reasons have been recorded by the Board, viz., her qualification, length of regular service as Assistant Professor and humanitarian grounds. The competence and merit of a candidate is adjudged not on the basis of the qualification he/she possesses but also taking into account the other necessary factors like career of the candidate, his educational curriculum, experience in the field, his general aptitude, personality of the candidate and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. 22) It was also brought to the notice of this Court that the present appellant is at present working on a regular post of Assistant Professor in some other University whereas Respondent No. 3 would be put to undue hardship if she would discontinue from the post. In this view of the matter, we are of the considered opinion that the action of the Board in selecting the third respondent is strictly in accordance with the relevant Statutes framed by the University and the Board had exercised its power judiciously by assigning cogent reasons as to why the third respondent was preferred.

                                      REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO. 12182 OF 2016
(Arising out of Special Leave Petition (C) NO. 25302 OF 2012)



J. Ashoka                                                .... Appellant(s)

            Versus

University of Agricultural Sciences & Ors.      .... Respondent(s)


                                      1


                                      2

                               J U D G M E N T

R.K. Agrawal, J.

1) Leave granted
2) This appeal is directed  against  the  final  judgment  and  order  dated
13.02.2012 passed by the Division Bench of the High Court  of  Karnataka  at
Bangalore in Writ Appeal No. 14 of 2006 whereby  the  High  Court  dismissed
the writ appeal filed by the  appellant  herein  against  the  judgment  and
order dated 17.11.2005 passed by the learned single Judge of the High  Court
in Writ Petition No. 46069 of 1999.

3)    Brief facts:
(a)   Vide Notification dated 14.08.1995,  the  University  of  Agricultural
Sciences, Bangalore advertised 3 (three) posts of  Assistant  Professors  in
Sericulture.  Out of the three vacancies, one  was  reserved  for  scheduled
caste; one for scheduled tribe and the third  in  favour  of  general  merit
candidate.  The minimum qualification prescribed for the post  was  Master’s
Degree in the concerned subject.  The appellant herein, a  post-graduate  in
Agriculture from the University of Agricultural  Sciences,  Dharwad  applied
for the said post as a general merit candidate.  The  appellant  herein  was
called for an interview along with the other candidates
(b)    The  Selection  Committee,  after  considering   the   qualification,
experience and the publications to the credit of  each  of  the  candidates,
prepared a Select List wherein  Shri  J.  Ashoka-the  appellant  herein  was
placed at Serial No. 1 and Shri R. Narasimharaju,  Shri  K.C.  Narayanaswamy
and  Dr.  Fathima  Sadathulla  were  placed  at  Serial  Nos.  2,  3  and  4
respectively.
(c)   The Select  List  was  forwarded  to  the  Board  of  Regents  of  the
University for  issuing  appropriate  appointment  orders.    The  Board  of
Regents prepared a separate list selecting Shri K.C.  Narayanaswamy  (Serial
No. 3 in the Select List) for the post available under the General  Category
and Dr. Fathima Sadathulla (Serial No. 4  in  the  Select  List)  under  the
roster of reservation.
(d)   Being aggrieved  by  the  appointment,  as  aforesaid,  the  appellant
herein and  Shri  R.  Narasimharaju  (Serial  No.  2  in  the  Select  List)
preferred Writ Petition Nos. 6360-6361 of 1996  before  the  High  Court  of
Karnataka at Bangalore.  Learned single Judge of the High  Court,  by  order
dated 13.08.1996, allowed the writ petitions while setting aside  the  order
of the Board of Regents with a direction to  the  University  to  reconsider
the case of the appellant herein in the light of  the  recommendations  made
by the Selection Committee.  However, learned single Judge further  directed
to accommodate Dr. Fathima Sadathulla (Serial No.  4  in  the  Select  List)
either against any existing vacancy or by creating a new vacancy.
(e)   Aggrieved by the order dated 13.08.1996,  the  University  filed  Writ
Appeal Nos. 8289-8290 of 1996 before the Division Bench of the  High  Court.
The Division Bench of the High  Court,  by  order  dated  16.02.1999  partly
allowed the appeals by setting aside the  order  passed  by  learned  single
Judge only in respect of Dr. Fathima Sadathulla (Serial No. 4 in the  Select
List) that the candidate may be accommodated against  any  existing  vacancy
or by creating a new vacancy. However, Dr. Fathima Sadathulla was  permitted
to continue in the post till issuance of the fresh appointment order.
(f)    The  Board  of  Regents  cancelled  the  appointments  of  Shri  K.C.
Narayanaswamy  and  Dr.   Fathima   Sadathulla   in   the   meanwhile.    On
26/27.03.1999, while reconsidering the panel, the Board  decided  to  select
afresh Dr. (Mrs.) Fathima Sadathulla as Assistant Professor of  Sericulture,
considering  her  qualification  (Ph.D.),  length  of  regular  service   as
Assistant Professor  and  also  on  humanitarian  grounds.    Based  on  the
decision of the Board of Regents dated 27.03.1999,  by  a  subsequent  order
dated 22.05.1999, the University again appointed Dr. Fathima Sadathulla.
(g)   Being aggrieved by the order dated 22.05.1999,  the  appellant  herein
preferred Writ Petition No. 46069 of 1999 before the  High  Court.   Learned
single Judge of the High Court, by order  dated  17.11.2005,  dismissed  the
petition filed by the appellant herein.
(h)   The appellant herein, aggrieved by the order  dated  17.11.2005  filed
Writ Appeal No. 14 of 2006 before the Division  Bench  of  the  High  Court.
The Division Bench of the High Court, by order dated  13.02.2012,  dismissed
the appeal filed by the appellant herein.
(i)   Aggrieved by the order dated  13.02.2012,  the  appellant  herein  has
preferred this appeal by way of special leave before this Court.
(4)   Heard Mr. Basava Prabhu S.  Patil,  learned  senior  counsel  for  the
appellant and Mr. P.V. Shetty, learned counsel for the respondents.
Rival Submissions:

5)    Learned senior counsel appearing for the  appellant  contended  before
this Court that the resolution passed by the Board of Regents selecting  the
third  respondent  suffers  from  patent  illegality  inasmuch  as   totally
irrelevant materials were taken into  consideration  and  the  case  of  the
appellant was not at all considered while  selecting  the  third  respondent
who was ranked lower  in  the  panel  of  Select  List  recommended  by  the
Selection Committee. Elaborating his  contentions,  learned  senior  counsel
submitted that once the Selection Committee empanels the candidates  in  the
order of merit and sends its recommendation,  the  Board  of  Regents  shall
have to follow the order of merit. In support of this contention, he  placed
reliance on the judgment in Dr. (Mrs.) G. Durga Nageswari vs. University  of
Agricultural Sciences ILR 1991 Kar. 14.

6)    According to learned senior counsel, the  third  respondent  has  been
appointed against the post which  was  never  advertised.   He  referred  to
Statute 15 (2)(a) of the University of Agricultural Sciences  Statute,  1964
and also the provisions of Statute 30(2)(d)  contending  that  the  impugned
order is the result of male fide action and violates the  rights  guaranteed
under Articles 14 and 16 of the Constitution.  The  appointments  were  made
on extraneous considerations against  the  appellant  whose  merit  is  much
superior to that of the third respondent.  It  was  further  contended  that
once the Selection Committee has selected the appellant  herein  and  placed
him at Serial No. 1, the first respondent cannot over-look  him  on  totally
extraneous considerations and the exercise of such power is mala fide.

7)    It was further contended by learned senior counsel  that  the  factors
taken into  consideration  for  preferring  the  third  respondent  such  as
possessing Ph.D. qualification, length of regular service  and  humanitarian
considerations were all irrelevant and hence  the  entire  decision  of  the
Board of Regents is vitiated. In support of this contention, he relied  upon
P.M. Latha and Another vs. State of Kerala  and  Others  (2003)  3  SCC  541
wherein it was held as under:-

“10.  We  find  absolutely  no  force  in  the  argument  advanced  by   the
respondents that BEd qualification is a higher qualification  than  TTC  and
therefore, the BEd candidates should be held to be eligible to  compete  for
the post. On behalf of the appellants, it is  pointed  out  before  us  that
Trained Teacher’s Certificate is given  to  teachers  specially  trained  to
teach small  children  in  primary  classes  whereas  for  BEd  degree,  the
training imparted is to teach students of classes above primary. BEd degree-
holders, therefore, cannot necessarily be held to be  holding  qualification
suitable for appointment as teachers  in  primary  schools.  Whether  for  a
particular post, the source of recruitment should  be  from  the  candidates
with TTC qualification or BEd qualification,  is  a  matter  of  recruitment
policy. We find sufficient logic and justification in the State  prescribing
qualification for the post of primary teachers as  only  TTC  and  not  BEd.
Whether BEd qualification can also be prescribed for primary teachers  is  a
question to be  considered  by  the  authorities  concerned  but  we  cannot
consider BEd candidates, for the present vacancies advertised, as eligible.

13. Equity and  law  are  twin  brothers  and  law  should  be  applied  and
interpreted equitably but equity cannot override  written  or  settled  law.
The Division Bench  forgot  that  in  extending  relief  on  equity  to  BEd
candidates who  were  unqualified  and  yet  allowed  to  compete  and  seek
appointments  contrary  to  the  terms  of  the  advertisement,  it  is  not
redressing the injustice caused to the appellants who  were  TTC  candidates
and  would  have  secured  a  better  position  in  the  rank  list  to  get
appointment  against  the  available  vacancies,  had  BEd  candidates  been
excluded from the selections. The impugned judgment of  the  Division  Bench
is both illegal, inequitable and patently unjust. The TTC candidates  before
us as appellants have been wrongly deprived of due chance of  selection  and
appointment.  The  impugned  judgment  of  the  Division  Bench,  therefore,
deserves to be set aside and of the learned Single Judge restored.”


8)    Per contra, learned counsel for  the  respondent-University  contended
before this Court that the action  of  the  Board  in  selecting  the  third
respondent is strictly in accordance with the relevant  Statutes  framed  by
the University. Learned counsel while placing reliance on Statute  15(4)  of
the Statute framed by the University contended that the Board has the  power
to select the best candidate as per the provisions of the  Statute  and,  in
the present circumstances, had exercised its power judiciously by  assigning
cogent reasons as to why the third respondent was preferred. It was  further
contended that a perusal of the resolution would disclose that the Board  of
Regents, after  considering  the  entire  panel  of  the  Select  List,  has
preferred the 3rd respondent as she possessed Ph.D. in Sericulture  and  was
found more suitable for the post  of  Assistant  Professor  of  Sericulture.
The other aspects considered by the Board were that she had been working  in
the University since the date of her initial appointment, and  that  if  she
was not preferred she would lose  all  avenues  of  alternative  appointment
whereas the appellant herein,  who  was  appointed  in  a  regular  post  of
Assistant Professor and was working in another University in the same  post,
would not be put to any hardship.  It is further submitted  that  the  Board
was well within its province in examining the matter keeping in  mind  these
humanitarian considerations also without ignoring the merit.

9)    Learned counsel further contended  that  the  Board  has  preferred  a
person possessing an additional qualification of Ph.D. in Sericulture  to  a
candidate who only possessed  a  Master’s  Degree.   Having  regard  to  the
nature  of  the  functions  of  an  Assistant  Professor,  requiring  deeper
knowledge of the subject and  the  third  respondent  having  Ph.D.  to  her
credit, was found well suited and more equipped for the  post  in  question,
which cannot be considered as an arbitrary or  unreasonable  method  adopted
or of taking irrelevant materials into consideration.

10)   Learned counsel further contended that there is absolutely no  failure
of justice  insofar  as  the  action  taken  by  the  Board  of  Regents  in
preferring the third respondent  to  the  appellant,  as  the  appellant  is
holding  a  regular  post  of  Assistant  Professor  in   the   Agricultural
University at Dharwad and his non-selection  has  in  no  way  affected  his
interest, whereas if the third respondent was to be ignored  it  would  have
deprived her of her livelihood and would have rendered her jobless  for  the
rest of her life despite possessing  such  a  high  qualification  of  Ph.D.
Therefore, these considerations which had obviously weighed in the  mind  of
the Board, cannot be termed as irrelevant and hence there is no  failure  of
justice so as to call for interference by this Court.
Discussion:
11)   From the material on record,  it  is  undisputed  that  the  Selection
Committee constituted for the purpose prepared a panel of candidates in  the
order of merit and recommended the name of the appellant herein  along  with
three others for selection. In the said list, the name of the appellant  was
at Serial No. 1 while that of the others,  namely,  Sri.  R.  Narasimharaju,
Dr.  K.C.  Narayanaswamy  and  the  third  respondent  Dr.  (Mrs.)   Fathima
Sadathulla were placed at Serial Nos. 2, 3 & 4 respectively.  The  Board  of
Regents selected the third respondent and one  Dr.  K.C.  Narayanaswamy  for
the posts of Assistant Professors of Sericulture. The appellant herein,  who
was placed at Serial No.1, along with one R. Narasimharaju, whose  name  was
shown at Serial No. 2 in  the  Select  List  recommended  by  the  Selection
Committee, approached the High Court by filing Writ Petition Nos.  6360-6361
of 1996. The said writ petitions were allowed  on  13.08.1996  holding  that
the Board of Regents has not exercised its power in a reasonable  manner  as
it did not assign  any  reason  for  preferring  the  third  respondent  and
another candidate, viz., Dr. K.C. Narayanaswamy, who were  placed  below  in
the Select List. Thus, while  setting  aside  the  appointment  of  the  two
candidates made on 18.12.1995, a direction was issued to the  University  to
reconsider the case of the appellants therein  as  also  of  the  two  other
candidates, viz.,  Dr.  (Mrs.)  Fathima  Sadathulla,  the  third  respondent
herein  and  Dr.  K.C.  Narayanaswamy.  However,  as  Dr.   (Mrs.)   Fathima
Sadathulla, (the third respondent herein) had been  continuing  in  service,
she was directed to continue till the matter was considered  afresh  or  the
University could find a way out to accommodate her either  in  the  existing
vacancy or by creating a new vacancy. This direction was  issued  to  enable
the third respondent herein to continue in the service  of  the  University.
As  Dr.  K.C.  Narayanaswamy  had  not  joined  the  service   despite   his
appointment, it was held  that  his  case  need  not  be  reconsidered.  The
petitioners therein, viz., Shri J. Ashoka (the appellant  herein)  and  Shri
R. Narsimharaju were directed to be absorbed straight away in  service.  The
University preferred writ appeals  against  the  said  order.  The  Division
Bench of the High Court, by order dated  16.02.1999,  in  Writ  Appeal  Nos.
8289-8290 of  1996  allowed  the  appeals  in  part  by  setting  aside  the
direction issued by learned single Judge to accommodate Dr.  (Mrs.)  Fathima
Sadathulla either in the existing vacancy or by creating new one.
12)   Pursuant to the directions issued by the Court, the Board  of  Regents
has reconsidered the matter on merits on  27.03.1999  and  has  resolved  to
select afresh Dr. (Mrs.)  Fathima  Sadathullah  as  Assistant  Professor  of
Sericulture. It is useful to extract the resolution passed which is at  item
No. 2D of the Minutes of 271st  (Spl.) Meeting of the Board of Regents  held
on 26th and 27th March 1999, which is as under:-
“Item  2D.  Appointment  of  Assistant  Professor  in  the   Department   of
Sericulture (In the pay scale of Rs. 2200-75-2800-100-4000)
After judicious examination of the directions issued  by  the  Hon’ble  High
Court of Karnataka dated 13.08.1996 in Writ Petition Nos. 6360 and  6361  of
1996  filed  by  Mr.  J.  Ashoka  and  Mr.  Narasimha  Raju,   respectively,
challenging the  appointment  of  Dr.  K.C  Narayanaswamy  and  Dr.  Fathima
Sadathulla as  Assistant  Professors  of  Sericulture  under  General  Merit
Category and the orders  dated  16-2-1999  of  the  Hon’ble  High  Court  of
Karnataka dismissing the Writ Appeal No.  8289  and  8290/96  filed  by  the
University  to  defend  its  action,  the  Board  decided   to   quash   the
appointments of the following two candidates :

1.    Dr. K.C Narayanaswamy as Assistant Professor of Sericulture, and

2.    Dr. (Mrs). Fathima Sadathulla as Assistant  Professor  of  Sericulture
(vide Order No. AO/Est.I(1)Appt/95-96 dated December 18, 1995)

However, the Board while reconsidering the panel, decided to  select  afresh
Dr.  (Mrs).  Fathima  Sadathulla  as  Assistant  Professor  of  Sericulture,
considering Ph.D., qualification, length of  regular  service  as  Assistant
Professor possessed by her and also on humanitarian grounds.

     (emphasis supplied by us)

Since Dr.  K.C  Narayanaswamy  has  already   been  appointed  as  Associate
Professor of Sericulture vide Order No. AO/EST-I(1)/Appt/98-99 dated  16-11-
1998, the Board did not find any  reason  to  consider  his  case  for  this
position.”

By a subsequent order dated 22.05.1999, the University again  appointed  Dr.
Fathima Sadathulla.  Being aggrieved, the appellant herein preferred a  Writ
Petition being No. 46069 of 1999 before  the  High  Court.   Learned  single
Judge of the High Court, by order dated 17.11.2005, dismissed  the  petition
filed by the appellant herein.  The appellant herein  filed  a  Writ  Appeal
being No. 14 of 2006 before the Division  Bench  of  the  High  Court.   The
Division Bench of the High Court, by order dated 13.02.2012,  dismissed  the
appeal filed by the appellant herein.
13)    In  this  context,  it  would  be  relevant  to  quote  the  impugned
notification which reads as under:-
                    “UNIVERSITY OF AGRICULTURAL SCIENCES
No. AO/RT/11/13/95-96                  Administrative Office
                                    GKVK, Bangalore-65
                                              Date : 14.8.95
                                NOTIFICATION

                Ref:  This office advertisement notification
                      No. AO/RT/11/13/94-95 dated 30.6.1994.

Posts  of  Assistant  Professors  advertised  under  above   reference   are
reclassified in accordance with the Govt. order dated 20-5-1995.

|SI. NO.     |Discipline       |Backlog Current |Classification and  |
|            |                 |                |No. of Posts        |
|1           |2                |3               |4                   |
|1 to 3      |Xxx              |Xxx             |Xxx                 |
|            |                 |                |                    |
|9           |                 |                |                    |
|            |Sericulture      |Current-3       |SC-1, GM-1, ST-1    |
|10 to 39    |                 |                |                    |
|            |                 |                |Xxx-                |
|            |Xxx              |Xxx             |                    |



For the following posts of Assistant Professor, applications are invited
afresh.

1)    Agronomy                          Cat.II-A – 1
2)    Agril. Entomology                      Cat. II-A – 1
3)    Kannada                           SC (Backlog)
4)    Poultry Science                   ST (Backlog)
5)    Fishery Engineering Technology    SC (Backlog)


Candidates who  have  applied  for  the  posts  of  Assistant  Professor  in
response to the Notification dated 30-6-94  (Other  than  the  above  post),
need not apply again. If eligible candidates belonging  to  Cat.II  (A)  are
not available, candidates belonging to GM will be considered  as  per  Govt.
order dated 20.6.95.
Qualifications : A minimum of Second Class Master’s degree in the  concerned
subject.   Preference   will   be   given   to    Experienced    candidates.
(emphasis supplied by us)

1.    Application fee is Rs. 20/-

2.    Application to SC/ST candidates will be issued free of  cost  only  if
they submit a requisition enclosing a xerox copy of the  certificate  issued
by the competent authority in the form prescribed in  Government  Order  No.
SBC 213 SAD 85 dated 28.3.1987.

3.    Number  of  vacancies  notified  is  subject  to  alteration  and  the
University reserves the right to Increase or decrease the number.

4.    ‘Application  form’  and  other  instructions  may  be  had  from  the
undersigned or presentation of a crossed postal order/challan of  the  value
indicated above drawn in favour of the  comptroller,  University  of  Agril.
Sciences, Banglore, purchased/remitted only after 21.8.95 at the State  Bank
of India GKVK/Hebbal.

5.    Application can also be had by post by sending  the  requisite  postal
order with self addressed envelope (12” x 4”)  affixing  the  stamp  of  the
value of Rs. 3.00 indicating the category to which he/she belongs.

6.    Ex-Servicemen of children of Defence Personnel killed or  disabled  in
action are exempted from payment of application fee provided they furnish  a
certificate issued by the appropriate authority.

7.    Separate application shall be submitted for each post.

8.    Last date for obtaining blank application form is 20.9.95.

9.    Last  date  for  receipt  of  filled  in  application  form  from  the
candidate is 25.9.95. The candidates  staying  abroad  may  send  equivalent
prescribed  fee  in  foreign  currency  either  in  the   form   of   Demand
Draft/Cheque drawn in favour of the Comptroller, University  of  Agriculture
Sciences, GKVK, Banglore 560 065, INDIA. Candidates staying abroad may  send
their application  in  plain  paper  giving  details  of  the  Bio-data  and
enclosing copies of their educational qualifications.


                                             SD/-14.8

                (A.KOTRESH)
  Administrative Officer”

14)   In the case at hand, the question is  not  as  to  whether  the  Board
could not proceed to select and appoint a candidate whose name according  to
the recommendation made by the Selection Committee is  lower  in  preference
to the candidate who is placed above, but the question is whether the  Board
can do so without recording reasons for preferring a person placed below  in
preference to a person placed above by the  Selection  Committee.   In  this
regard, it is necessary to state that Clause (2) of Statute 30 requires  the
Selection Committee to recommend the names in the order of  merit  and  when
the Selection Committee has done so, there must be some basis to  alter  the
merit as fixed by the Selection Committee.  Otherwise, the exercise  of  the
power would be arbitrary and come into conflict with the right  to  equality
and injunction against arbitrariness  in  State  action  and  the  right  to
equality and equality of  opportunity  in  matters  relating  to  employment
under the State guaranteed under Articles 14 and 16(1) of the Constitution.
15)   At this stage, it would be appropriate to quote Statute 30  (2)  which
is as under:-
“(2)(a) The Selection Committee shall review applications for the posts  and
consider the qualifications of all applicants including University  Officers
and other employees who may be qualified  for  the  post.   If  a  qualified
candidate(s) is found, the Committee shall recommend in order of  merit  not
more than three qualified persons for appointment.
     (emphasis supplied by us)
(b)   In case no qualified person is recommended and/or appointed  as  under
(2) above, the Selection Committee shall
(a)  contact  various  institutions  and  agencies  (such  as  ICAR,   State
Departments, Colleges, etc.) for the purpose of obtaining applications  from
qualified persons and (b) otherwise advertise for  qualified  applicants  in
such manner as may be approved by the Vice-Chancellor.  On receipt  of  such
further applications the Committee shall prepare a list  of  all  applicants
and shall recommend in  order  of  merit,  not  more  than  three  qualified
persons for appointment.
(3)   If the Selection Committee fails to nominate an acceptable person  for
an office, the Board shall take such steps as  are  necessary  to  select  a
suitable person.
(4)   Out of the qualified persons recommended by each  Selection  Committee
the Board shall choose the best individual for appointment in all  cases  of
appointments to be made by the Board.”


It can be seen from the above  that  under  Clause  2  of  Statute  30,  the
Selection  Committee  constituted  for  the  purpose  is  required  to  make
recommendation of names for appointment in the order of merit not more  than
three  qualified  persons  for  appointment.   Clause  (4)  of  Statute  30,
however, empowers the Board of Regents to choose  the  best  individual  for
appointment in the case of appointment to be made by the Board.
16)   In Dr. Mrs. G. Durga Nageswari (supra), it was held as under:-
“9.   The above case no doubt interpreted the Indian Administrative  Service
Regulations. Regulation 5(5) of the said Regulations required  recording  of
reasons for suppression. But as can be seen from the above paragraph of  the
Judgment, the Supreme Court based its conclusion on the  right  to  equality
guaranteed under Articles 14 and 16 (1) of  the  Constitution  and  observed
that recording of reasons for overlooking the  claim  of  a  person  who  is
above and select a person  below  was  necessary.  The  said  principle  was
applied by this Court in the case of T.K. DEVARAJU vs  STATE  OF  KARNATAKA.
This  Court  pointed  out  that  the   Regulation   5(5)   of   the   Indian
Administrative Service Regulation was only for the purpose of giving  effect
to Article 14 and 16(1) of the Constitution and the position  would  be  the
same even in the absence of  such  a  regulation  because  of  recording  of
reasons is the only  way  to  ensure  obedience  to  the  fundamental  right
guaranteed under Articles 14 and 16(1). Therefore, in  our  opinion,  clause
(4) of the Statute 30 must be read along with Articles 14 and 16(1)  of  the
Constitution, for the reasons, the University of  Agricultural  Sciences  is
state as defined in Article 12 of the Constitution and hence  bound  by  the
Articles included in the Fundamental Rights Chapter. Therefore,  when  under
clause (2) of Statute 30,  a  Selection  Committee  constituted  for  making
selection on the basis of the performance of the candidate at the  interview
recommends the names in the order of  merit,  the  power  of  the  Board  of
Regents to choose best among them means normally it should  proceed  in  the
order of merit as arranged by the Selection Committee, and if it is  of  the
view that any person placed lower is the best, it can do so, but it  has  to
record reasons. If reasons are  recorded  then  it  can  be  said  that  the
provisions of Articles 14 and 16(1) are  complied  with.  But  if  a  person
placed below is appointed without assigning any reason, there  is  no  other
alternative than to hold that such a selection and appointment is  arbitrary
and violative of Articles 14 and 16(1) of the Constitution.

10.   In the present case, it is not  disputed  that  no  reasons  had  been
recorded by the Board of Regents as to why the 2nd respondent  was  selected
for appointment in preference to the petitioner though  the  petitioner  was
placed at SI.No. 1 and  the  2nd  respondent  was  placed  at  SI.No.3.  The
learned Counsel for the University submitted that reasons were not  recorded
in view of the earlier decision of this Court in Keshayya’s  case  in  which
it was held that the Board of Regents had the power to  select  any  one  of
the persons whom it  considers  best  and  make  the  appointment.  But  the
precise question raised in this case and which was not raised in  Keshayya’s
case is as to whether the Board of Regents could  do  so  without  assigning
any reason. As shown earlier, the recording of  reasons  is  a  must  having
regard to the Right guaranteed to the citizens under Articles 14  and  16(1)
of the Constitution. Therefore, we are of the view that whenever  the  Board
of Regents considers that a person placed lower in  merit  in  the  list  of
selected candidates recommended by the Selection Committee,  it  can  do  so
only by recording reasons as to why the case of the person placed  above  is
being overlooked and the person below  is  considered  the  best  for  being
appointed. In the present case, no reasons have been recorded,  may  be  for
the reason the Board considered that it was unnecessary  as  stated  by  the
learned Counsel. He however submitted that the Board of Regents  has  stated
that respondent-2  is  more  suitable  than  the  petitioner.  That  is  the
conclusion and not the reason. That  conclusion  must  be  preceded  by  the
reason which is wanting in this case.

17)   As per the impugned notification, the requisite qualification for  the
post of  Assistant  Professor  was  Second  Class  Master’s  Degree  in  the
concerned subject.  The appellant possessed the requisite  qualification  to
be eligible for the said post.  However, the Board  of  Regents,  considered
Respondent  No.  3  herein  as  the  suitable  candidate   considering   her
qualification (Ph.D), continuous service as an Assistant Professor and  also
on humanitarian grounds.  Whenever a selection is to be made  on  the  basis
of merit performance, it cannot  be  for  the  purpose  of  eliminating  all
others preventing thereby even an effective  and  comparative  consideration
on merits, by according en bloc precedence in favour of those in  possession
of additional  qualification  irrespective  of  the  respective  merits  and
demerits of all candidates to be considered.  There is no escape for  anyone
from this ordeal and  claim  for  any  en  bloc  favoured  treatment  merely
because, any one of them happened to  possess  an  additional  qualification
than the relevant basic/general qualification  essential  for  applying  the
post.  It would amount to first exhausting in the matter  of  selection  all
those, dehors their inter se merit performance, in possession of  additional
qualification and  take  only  thereafter  separately  those  with  ordinary
degree and who do not possess the additional qualification.
Conclusion:
18)    Reasons  are  the  links  between  the  materials  on  which  certain
conclusions are based and the actual conclusions.   They  disclose  how  the
mind is applied to the subject matter for a decision whether  it  is  purely
administrative or quasi judicial.   They  should  reveal  a  rational  nexus
between the facts considered and the conclusions reached.  Only in this  way
can opinions or decisions recorded  be  shown  to  be  manifestly  just  and
reasonable.  We, therefore, are of the considered opinion that the  relevant
provisions of the Statute were fully complied with.
19)   In our considered view, Clause (2) of  Statute  30  must  be  read  in
consonance with Articles 14 and 16(1) of the Constitution, for the  reasons,
the University is covered under the definition  of  State  given  under  the
Articles.  Hence, when  under  Clause  (2)  of  Statute  30,  the  Selection
Committee constituted for making selection on the basis of  the  performance
of the candidates at the interview recommends the  names  in  the  order  of
merit, the power of the Board of Regents to choose  best  among  them  means
normally it should proceed  in  the  order  of  merit  as  arranged  by  the
Selection Committee, and if it is of the view that any person  placed  lower
is the best, it can do so, but it has to record reasons for doing the  same.
 But if a person placed below is appointed without assigning any reasons  or
on irrelevant considerations, there is no other  alternative  than  to  hold
that such  a  selection  and  appointment  is  arbitrary  and  violative  of
Articles 14 and 16(1) of the Constitution.
20)   The  Board  has  power  to  select  the  best  candidate  as  per  the
provisions of the Statute and in the case at hand, the  Board  re-considered
the matter on 27.03.1999 and assigned cogent reasons as  to  why  Respondent
No. 3 was preferred.  Though learned senior counsel for the  appellant  very
much relied upon P.M. Latha (supra), we are of the considered  opinion  that
the above case does not have any bearing  on  the  decision  of  this  case.
Respondent No. 3 possesses the qualifying post graduate degree coupled  with
additional  qualification  of  Ph.D.  in  the  same  subject.  The   instant
selection is for the post of Assistant Professor of Sericulture.  If  deeper
knowledge of the subject, coupled with possessing the qualifying  degree  as
prescribed in the notification  inviting  application,  is  possessed  by  a
candidate and if the  Board  takes  into  consideration  all  these  factors
including the qualification of Doctorate in the said subject, it  cannot  be
said that the Appointing  Authority  has  taken  irrelevant  materials  into
consideration.
21)   Whenever the Board of Regents  considers  a  person  placed  lower  in
merit in the list  of  selected  candidates  recommended  by  the  Selection
Committee, it can do so only by recording reasons as to why the case of  the
person placed above is being overlooked and the person below  is  considered
the best for being appointed. In the present  case,  adequate  reasons  have
been recorded by the Board,  viz.,  her  qualification,  length  of  regular
service as Assistant Professor and  humanitarian  grounds.   The  competence
and merit of a candidate is adjudged not on the basis of  the  qualification
he/she possesses but also taking into account the  other  necessary  factors
like career of the candidate, his educational curriculum, experience in  the
field, his general aptitude, personality of  the  candidate  and  all  other
germane factors which the expert body evolves for assessing the  suitability
of the candidate for the post for which the selection is going to be held.
22)   It was also brought to the notice  of  this  Court  that  the  present
appellant is at present working on a regular post of Assistant Professor  in
some other University whereas  Respondent  No.  3  would  be  put  to  undue
hardship if she would discontinue from  the  post.   In  this  view  of  the
matter, we are of the considered opinion that the action  of  the  Board  in
selecting the third respondent is strictly in accordance with  the  relevant
Statutes framed by the University and the  Board  had  exercised  its  power
judiciously by assigning cogent reasons as to why the third  respondent  was
preferred.


23)   In view of the above, the appeal is dismissed  with  no  order  as  to
costs.

...…………….………………………CJI.
          (T.S. THAKUR)




.…....…………………………………J.
   (R.K. AGRAWAL)



.…....…………………………………J.
   (ADARSH KUMAR GOEL)


NEW DELHI;
DECEMBER 15, 2016.
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