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.
-----------------------
26
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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