J.ASHOKA Vs UNIV.OF AGR.SC..
Bench: T.S. THAKUR,R.K. AGRAWAL,ADARSH KUMAR GOEL
Case number: C.A. No.-012182-012182 / 2016
Diary number: 26047 / 2012
Advocates: Vs
ANIL KUMAR MISHRA-I
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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)
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.
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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.
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(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.
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(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.
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(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
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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
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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
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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
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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.
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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
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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.
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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
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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
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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
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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
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10 to 39
Xxx
Sericulture
Xxx
Xxx
Current-3
Xxx
Xxx
SC-1, GM-1, ST-1
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)
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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.
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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.
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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.”
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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
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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
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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
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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
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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
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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
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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.
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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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