Bharathiar University Vs A. Parvathy and P.G. Kavitha <BR>Kavitha Vs A. Parvathy and Bharathiyar University

N. Paul Vasanthakumar, J.@mdashBy consent of all parties, both these appeals are taken up for final disposal, even at the admission stage.

2. For the sake of convenience the parties in this judgment will be referred to according to their ranks in W.A. No. 1488 of 2009.

3. The brief facts necessary for disposal of these appeals are that Bharathiyar University invited applications for appointment to the post of Assistant Technical Officer (Library) by notification dated 8.9.2008, published in Dinamalar daily dated 10.9.2008 stating that the candidates possessing bachelor degree in any subject with certificate in Library Science and Typewriting lower grade in English and Tamil and who are less than 33 years of age can apply for the said post on or before 6.10.2008. It is also stated in the notification that previous experience in any recognised library is desirable and relaxation is also applicable as per the Government norms to the respective community. Totally six persons including the first and second respondent submitted their applications for the said post. The University conducted interview on 28.1.2009. The first respondent and the second respondents and four other persons attended the interview. The second respondent was selected and appointed to the post of Assistant Technical Officer (Library). According to the first respondent, the second respondent was not having the prescribed essential qualification i.e, Typewriting lower grade in English and Tamil and the first respondent alone was the qualified person as per the notification issued. It is the contention of the first respondent that she has passed Plus Two, post graduation degree in Public Administration and Library Science and also passed M. Phil in Public Administration with Typewriting qualification and therefore she should have been selected. According to the first respondent, the second respondent was not having the required essential qualification for being appointed for the said post, her appointment is contrary to the notification issued. It is claimed in the affidavit that the first respondent is becoming over-aged and hence a prayer was made to declare the selection and appointment of the second respondent to the post of Assistant Technical Officer (Library) by the University as illegal, arbitrary and contrary to law and for consequential direction to the University to appoint her in the said post.

4. The respondents in the writ petition were served. However, the second respondent has not chosen to appear before the learned single Judge and the appellant University, without filing counter affidavit, argued the writ petition based on instructions.

5. The learned single Judge found that the second respondent and other four candidates are having certificate for Typewriting lower grade in English and not in Tamil and also found that the first respondent/writ petitioner had produced certificates for all the required qualifications as mentioned in the notification. However her candidature was rejected on the ground that the bachelor degree obtained by her was through Distance Education Programme and not under regular course. The said stipulation having not been made in the advertisement, the learned Judge found fault with the rejection of the first respondent''s candidature and taking note of the fact that the first respondent alone is the qualified person among those applied, while setting aside the selection of the second respondent, granted further direction to the University to appoint the first respondent in the said post. As against the said order passed by the learned single Judge, the University has filed W.A. No. 1488 of 2009 and the second respondent, whose appointment was set aside, has filed W.A. No. 1502 of 2009.

6. Ms. N. Kavitha, learned Counsel appearing for the appellant University/appellant in W.A. No. 1488 of 2009 submitted that the first respondent studied through Open University Stream and therefore she was not selected even though she was called for the interview. Totally six persons have applied and other than the first respondent, no other person was found qualified in Typewriting Tamil and therefore the University thought fit to consider the equivalent qualification, which the second respondent possessed and selected the second respondent for the said post. The learned Counsel also justified the selection by citing the decision of the Supreme Court reported in (2009) 2 MLJ 196 (SC) (B.C. Mylarappa v. R. Venkatasubbaiah).

7. Mr. N.G.R. Prasad, learned Counsel appearing for the second respondent/appellant in W.A. No. 1502 of 2009 submitted that the first respondent having been found not qualified, has no locus standi to challenge the appointment of the second respondent. The University, taking note of the better qualifications possessed by the second respondent, selected the second respondent and the first respondent being not entitled to challenge the selection of the second respondent, this Court need not exercise its discretionary jurisdiction to upset the selection of the second respondent. The learned Counsel cited the Judgment of the Division Bench of this Court reported in N. Ramesh Vs. Sibi Madan Gabriel, The Secretary to Government, Information and Tourism Department, Govt. of Tamil Nadu, The Director, Information and Public Relations and The Tamil Nadu Public Service Commission, and contended that persons who does not possess basic degree by undergoing three years college education, are not found eligible to apply for the post. Learned Counsel also relied on the statute of the University, and contended that the qualification prescribed for the post of Library Assistant viz., bachelor degree in any subject with certificate in Library Science and Typewriting lower grade in English and Tamil are only desirable qualifications and therefore the second respondent having satisfied the essential qualification prescribed under the statute, is entitled to be selected and the University was justified in selecting her.

8. Mr. Balan Haridoss, learned Counsel appearing for the first respondent in both the writ appeals submitted that the University having issued the notification prescribing the essential qualifications as bachelors degree in any subject with certificate in Library Science and Typewriting lower grade in English and Tamil and fixing age limit as 33 years and the desirable qualification mentioned in the notification being previous experience, the University is bound to adhere to the said notification and the second respondent, who is not possessing even the essential qualification/eligibility as per the notification, is not entitled to be selected and the learned single Judge taking note of the said facts allowed the writ petition as prayed for and there is no illegality in the said order. The learned Counsel also submitted that the first respondent is aged 38 years and the Division Bench Judgment relied on by the learned Counsel for the second respondent will not apply to the case on hand, as the subject matter of the post is not teaching post. With regard to the statute prescribing the qualification, the learned Counsel submitted that the essential qualifications are bachelor degree in any subject with certificate in Library Science and Typewriting lower grade in English and Tamil and age below 33 years and the desirable qualification noted is only previous experience. The learned Counsel also submitted that in the appeal filed before the Supreme Court against the Division Bench judgment of this Court, in Annamalai University rep. by Registrar Vs. Secy. to Govt. Infn. and Toursm Dept. and Others, the Supreme Court has held that the Judgment of the Supreme Court would not affect the service of the appellant and it can be applied only for a case of promotion and not for fresh entry in service. The learned Counsel also submitted that the second respondent having not chosen to appear before the learned singe Judge is not entitled to challenge the order of the learned single Judge by filing separate appeal.

9. We have considered the rival submissions made by the learned Counsel for the appellants in both the appeals and the respective counsel for the respondents.

10. The objection raised by the first respondent with regard to the maintainability of the appeal filed by the second respondent i.e, W.A. No. 1502 of 2009 need not be gone into since the University itself has challenged the very same order of the learned Single Judge. In the appeal filed by the University in W.A. No. 1488 of 2009, the second respondent is also a party. In the said writ appeal, the learned Counsel for the second respondent/appellant in W.A. No. 1502 of 2009 is entitled to argue the matter in W.A. No. 1488 of 2009. Therefore, the technical objection raised by the learned Counsel for the first respondent cannot be countenanced on the facts of this case. In any event, we are inclined to go into the merits of the matter in the appeal preferred by the University, which has contested the matter before the learned single Judge.

11. The point arises for determination in these appeals are whether the second respondent is qualified in terms of the advertisement issued by the University in ''Dinamalar Daily'' dated 10.9.2008 under notification dated 8.9.2008 and whether the University is justified in selecting the second respondent.

12. The notification dated 8.9.2008 clearly states that for the post of Assistant Technical Officer (Library), the essential qualification prescribed is bachelor degree in any subject with certificate in Library Science and Typewriting lower grade in English and Tamil with further condition that the candidate should not exceed 33 years of age. The said qualifications are required to be fulfilled by all the applicants. It is also stated that previous experience in any recognised Library is a desirable qualification. It is also relevant to note that the statute of the University also states that basic bachelors degree in any subject with certificate in Library Science and Typewriting lower grade in English and Tamil with further condition that the candidate should not exceed 33 years of age are the essential qualifications and the previous experience in a recognised Library is only the desirable qualification. Thus, the learned Counsel for the first respondent is right in contending that the second respondent is not having the essential qualifications/eligibility even to apply for the post. Furthermore, in our opinion, relaxation cannot be granted in regard to essential qualifications. Power to relax the eligibility condition, if any, to the selection cannot be altered after commencement of selection process.

13. The contention of the learned Counsel for the University as well as the second respondent that since the second respondent was having higher qualification and she was competent and proficient in Computer Application and the same can be equivalent to the prescribed Typewriting Lower grade in Tamil, cannot at all be accepted in view of the fact that neither under the statute nor under the notification the equivalent qualification of Typewriting lower grade in English and Tamil was prescribed. Unless and until the same is stated in the notification that the University will consider equivalent qualifications for Typewriting, the University is not justified in considering qualification in Computer Application as the equivalent qualification for the prescribed Typewriting qualification.

14. By issuing the notification on 8.9.2008, the essential qualifications having been notified and applications having been submitted by the candidates pursuant to the said notification.

(a) Whether the University is entitled to consider any other matter than the one which is stated in the notification was considered by the Supreme Court in the decision reported in Mohd. Sohrab Khan Vs. Aligarh Muslim University and Others, . The facts of the case in the said judgment is that the Aligarh Muslim University issued an advertisement on 6.2.2004 and called for applications for 79 posts in the University, including the post of Lecturer in Chemistry in the University Polytechnic. The qualifications prescribed for the post of Lecturer in Chemistry was post graduation in Chemistry and it was not mentioned in the advertisement that a person holding Master Degree in Industrial Chemistry could also apply. A person possessed post graduate degree in the subject of Industrial Chemistry was selected contrary to the notification issued. While considering the said case, the Supreme Court in paragraphs 24 to 28 held thus,

24. According to us, the Selection Committee as also the University changed the rule in the midstream which was not permissible. The University can always have a person as a Lecturer in a particular discipline that it desires to have, but the same must be specifically stated in the advertisement itself, so that there is no confusion and all persons who could be intending candidates, should know as to what is the subject which the person is required to teach and what essential qualification the person must possess to be suitable for making application for filling up the said post.

25. We are not disputing the fact that in the matter of selection of candidates, opinion of the Selection Committee should be final, but at the same time, the Selection Committee cannot act arbitrarily and cannot change the criteria/qualification in the selection process during its midstream. Merajuddin Ahmad did not possess a degree in Pure Chemistry and therefore, it was rightly held by the High Court that he did not possess the minimum qualification required for filling up the post of Lecturer in Chemistry, for Pure Chemistry and Industrial Chemistry are two different subjects.

26. The advertisement which was issued for filling up the post of Lecturer in Chemistry could not have been filled up by a person belonging to the subject of Industrial Chemistry when the same having been specifically not mentioned in the advertisement that a Master''s degree-holder in the said subject would also be suitable for being considered. There could have been intending candidates who would have applied for becoming candidate as against the said advertised post, had they known and were informed through advertisement that Industrial Chemistry is also one of the qualifications for filling up the said post.

27. The Selection Committee during the stage of selection, which is midway could not have changed the essential qualification laid down in the advertisement and at that stage held that a Master''s degree-holder in Industrial Chemistry would be better suited for manning the said post without there being any specific advertisement in that regard. The very fact that the University is now manning the said post by having a person from the discipline of Pure Chemistry also leads to the conclusion that the said post at that stage when it was advertised was meant to be filled up by a person belonging to Pure Chemistry stream.

28. In A.P. Public Service Commission v. B. Swapna, at para 14 it was held by this Court that norms of selection cannot be altered after commencement of selection process and the rules regarding qualification for appointment, if amended, during continuation of the process of selection do not affect the same.

(b) In K. Manjusree Vs. State of A.P. and Another, a question arose as to whether the Selection Committee is empowered to prescribe minimum marks for calling candidates for oral test after the commencement of the selection process. In paragraph 29 the Supreme Court held thus,

29. ...if the Selection Committee want to prescribe minimum marks for interview, it should do so before the commencement of selection process. If the selection committee prescribed minimum marks only for the written examination, before the commencement of selection process, it cannot either during the selection process or after the selection process, add an additional requirement that the candidates should also secure minimum marks in the interview. What we have found to be illegal, is changing the criteria after completion of the selection process, when the entire selection proceeded on the basis that there will be no minimum marks for the interview.

(c) Same is the view taken in the decisions reported in Hemani Malhotra Vs. High Court of Delhi, ; Durgacharan Misra Vs. State of Orissa and Others, ; Umesh Chandra Shukla Vs. Union of India (UOI) and Others, .

(d) In the decision reported in Mukul Saikia and Others Vs. State of Assam and Others, whether the Selection Committee can deviate from the notification issued by selecting more candidates than the notified vacancies was considered. It is held therein that recruitment in excess of advertised posts is violative of Articles 14 and 16 of the Constitution of India.

(e) It is also considered by the Supreme Court as to whether the Selection Committee can relax the eligibility condition in favour of any candidate without the power of relaxation mentioned in the notification, in the decisions reported in Secretary, A.P. Public Service Commission Vs. B. Swapna and Others, and Dr. Krushna Chandra Sahu and others Vs. State of Orissa and others, . In the said cases it is held that unless the power of relaxation is mentioned in the very advertisement, the Selection Committee cannot grant relaxation by invoking inherent jurisdiction or assuming power by necessary implication.

(f) In the decision reported in Pramod Kumar Vs. U.P. Secondary Education Services Commission and Others, the Supreme Court held that the qualification prescribed are to be obtained by the candidate selected. In paragraphs 16 to 18 the Supreme Court held thus,

16. The qualifications for holding a post have been laid down under a statute. Any appointment in violation thereof would be a nullity.

17. It is a matter of some concern that appointments are being offered by the authorities of the State without verifying the fact as to whether the degree(s) possessed by the candidate(s) are valid or not. It was an adhoc appointment. Why despite the same, he was allowed to obtain degree from another university is not known.

18. If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law....

15. Applying the above decisions of the Supreme Court to the facts of this case, we hold that the first respondent is qualified for the post as per the advertisement and whether she is desirable for the said post is up to the University to decide while making selection. This Court cannot express any opinion with regard to the degree obtained by the first respondent through Open University Stream.

16. The learned Counsel for the University rightly pleaded before the learned single Judge that if the selection of the second respondent is held unsustainable, the University may be given liberty to publish fresh advertisement and to make fresh selection. The said submission is well founded in view of the fact that the University has not assessed the merit and ability of any candidate, even though six candidates were called for. Admittedly the second respondent was selected based on the experience in Computer Applications. However, she is lacking the minimum essential qualification of not possessing Typewriting lower grade in Tamil. The University is also bound to follow the qualifications prescribed for the post under the statute while issuing notification.

17. The Judgement cited by the learned Counsel for the University that Courts to be slow in interfering with expert body''s decision, is the well settled principle of law. Here in this case, the University having framed the statute prescribing essential qualifications and having issued advertisement in accordance with the statute, it is duty bound to see whether the candidates applied are having the eligible prescribed qualifications. Since, admittedly second respondent is lacking the prescribed qualifications, the learned single Judge is justified in setting aside the order of selection given to the second respondent.

18. In the light of the above findings these appeals are disposed of by confirming the order of the learned single Judge dated 11.9.2009 made in W.P. No. 10687 of 2009 insofar as setting aside the order of selection given to the second respondent is concerned and the order of the learned single Judge is set aside insofar as giving direction to the University to appoint the first respondent as against the notified vacancy. The University is granted liberty to issue fresh advertisement and make selection in compliance with the qualifications prescribed under the statutes and in terms of the notification to be issued. Pursuant to the fresh advertisement to be issued by the University, first and second respondents in W.A. No. 1488 of 2009 are at liberty to apply, if they are otherwise qualified to apply and age will not be a bar for them. There will be no order as to costs. Connected miscellaneous petitions are closed.