Dismissed

J Srinivasa Rao and 2 Ors. v. Prl.Secy., Higher Education Dept., Hyd., and 3 Others

Andhra Pradesh HC18 Jan 2023WP/372/2017

Case brief

AI extract

What is this about?

The court dismissed a writ petition challenging the refusal of appointment for candidates who scored below the cut-off marks set by a Selection Committee for Assistant Professor posts. Citing multiple precedents, the court held that the employer is not obligated to fill vacancies if suitable candidates are unavailable and can fix higher cut-off marks unless the decision is irrational or mala fide.

What did the court decide?

Writ petition dismissed with no order as to costs; interlocutory applications closed.

J Srinivasa Rao and 2 Ors. Vs… — Pension and Retirement Benefits | Andhra Pradesh HC (2023)

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THE HON’BLE SRI JUSTICE TARLADA RAJASEKHAR RAO

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WRIT PETITION No.372 OF 2017

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ORDER:

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This Writ Petition is filed under Article 226 of the Constitution of India for the following relief:-

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"To issue an appropriate writ, order or direction, more particularly one in the nature of Writ of Mandamus declaring the action of Respondents in not considering the case of the petitioners for appointment to the post of Assistant Professor (Mechanical Engineering) though they are selected as per their merit in the selection process conducted under Notification bearing Advertisement No.2/2013 dt.1.6.2013 as illegal, unjust, arbitrary discriminatory and violative of Article 14, 16(4) and 21 of Constitution of India and contrary to the judgment of this Hon’ble Court dt.13.11.2015 in W.P.No.5107/2015 & Batch and consequently direct the Respondents to consider the cases of the petitioners for appointment to the post of Assistant Professor (Mechanical Engineering) with all the consequential benefits and pas such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case."

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After filing of the Writ Petition, the 3^rd petitioner was

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died and the Writ Petition filed by the 3^rd petitioner is dismissed as abated.

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The petitioners herein have applied for the post of Assistant Professor (Mechanical Engineering) in pursuance of the Notification bearing Advertisement No.2/2013 dated 01.06.2013. The petitioners herein are working as Lecturers (Mechanical Engineering) on contract basis at Nuzvid centre of the 2^nd respondent-University since 2011 onwards and the 1^st petitioner belongs to B.C-B category and the 2^nd petitioner belongs to B.CD category. The 1^st petitioner herein has applied only for the Nuzvid Centre and the 2^nd petitioner has applied in all three centres, i.e., Nuzvid, R.K.Valley and Basara centres. As per the Notification, the selection process comprises in two tires, i.e., written test and interview. Written test is only meant for short listing the candidates for interview. It is asserted in the writ affidavit that more than 1000 candidates have applied for the notified posts of Assistant Professors (Mechanical Engineering).

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After verifying the academic record of the applicants, the respondent-University has sent call letters to more than 500 candidates and after conducting written test to more than 500 short listed candidates, the 2^nd respondent-University sent call letters for interview only for 49 candidates.

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It is the contention of the 1^st petitioner that one post at Nuzvid centre in Mechanical Engineering is reserved for B.C-D category and though he was shown in the merit list and there is no cut-off mark was prescribed in the notification, the University without considering the same has not selected the 1^st petitioner though he is a meritorious candidate and kept the post vacant and the said action of the respondent-University in keeping the post kept vacant is assailed in the present Writ Petition on the ground that though there is no specific cut-off mark was prescribed, in not allotting the said post to the 1^st petitioner under B.C-B category as being arbitrary.

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It is the contention of the 2^nd petitioner that the 2^nd respondent-University instead of appointing two meritorious B.C-D candidates, i.e., Mr. Naga Srinivasa Rao, who secured 84

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marks (Sl.No.21 in the merit list of R.K.Valley & Sl.No.25 of Nuzvid) and Mr. Cheepurupalli Vasu, who secured 80 marks (Sl.No.7 in the merit list of R.K.Valley & Sl.No.8 of Nuzvid) against O.C. posts (General Category post) illegally appointed them against B.C-D posts at R.K.Valley and Nuzvid respectively while keeping the General Category (OC) posts vacant.

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The 2^nd petitioner would contend that the reservation under Article 16(4) do not operate like communal reservation. That is to say that some members belonging to backward class/scheduled caste got selected in the open competition field on the basis of their own merit, they should not be counted against the quota reserved for backward class and they should be treated as open competition candidate. The said proposition was laid by the Hon’ble Apex Court in Jithendra Kumar Singh and another v. State of U.P.¹ .

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On the above said ground, the 2^nd petitioner assailed the action of the respondent-University in the present Writ Petition.

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1 (2010) 3 SCC 119

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On the above said grounds, the present Writ Petition

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came to be filed seeking a direction to the respondents to appoint the 1^st petitioner in the vacant post of B.C-B category and appoint the 2^nd petitioner in B.C-D category.

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The petitioners have relied on the judgment of the Hon’ble Apex Court in the case of K.Manjusree v. State of Andhra Pradesh and another² for the proposition that the respondents cannot impose such stipulation beyond the notification as the notification does not prescribe any cut-off marks therefore, prayed to direct the respondents to appoint the petitioners as Assistant Professor in their respective categories.

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Per contra , the respondent-University has filed counter and additional counter. Before adverting to the counter filed by the University, the notification issued for the above said

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posts, vide Notification Advertisement No.2/2013 dated 01.06.2013, had been put in abeyance on the recommendation of the Government on the ground that the University has not followed the rule of reservation in selecting the candidates, etc., 2 (2008) 3 Supreme Court Cases 512

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and the Government has directed the University to stop the selection process until further orders. Accordingly, the University has put the appointments in abeyance. At that stage, some of the candidates filed W.P.No.6006 of 2014 and the composite High Court directed the respondent-University to appoint enquiry committee, basing upon the report of the enquiry committee, it was directed to pass appropriate orders with regard to the posting of the petitioners therein. Basing upon the recommendation of enquiry committee, the Governing Council resolved to cancel the selection made and to re-notify the posts.

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The recommendation of the Governing Council to cancel the selection post and to re-notify the post was challenged before this Court and this Court, by common order dated 13.11.2015 in W.P.No.5107 of 2015 and batch, disposed of the Writ Petitions and set aside the decision of the Governing Council for cancelling the entire selection process and consequently, directed the respondents therein to examine the select list thoroughly, apply the rule of reservation and segregate

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the candidates who are improperly selected from the properly selected candidates and appoint the petitioners therein according to their merit and by applying the rule of reservation pursuant to their respective appointment orders.

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The University has filed its counter and would contend in the following manner:

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(1) The notification clearly indicates that the University has the right not to fill up any of the advertised posts, if suitable candidates are not found for selection.

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(2) In fact, the Selection Committee did not select any candidates in B.C-B and B.C-E categories and categorically mentioned that none found suitable in B.C-B and B.C-E categories in their recommendations of the selected candidates and therefore, the selection/appointment of the 1^st petitioner does not arise.

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(3) In respect of the 2^nd petitioner, who belongs to B.C-D category, candidates with higher merit were considered.

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(4) There is no mandate on the Selection Committee to recommend filling all the vacant positions even if there is no

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candidate appropriate for the position of Assistant Professor for final selection.

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(5) After considering the overall performance including interview, the 1^st petitioner-J.Srinivasa Rao scored 59 marks out of 100 marks, the Selection Committee has not recommended his candidature for selection and further the Selection Committee also mentioned specifically in their recommendations that none found suitable in B.C-B category, i.e., 1^st petitioner’s category and accordingly, no candidate was appointed in Nuzvid campus in B.C-B category and therefore, his request that he should be selected and appointed is not arbitrary or illegal.

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(6) In the case of the 2^nd petitioner-G.Mohana Rao, his overall performance including interview, scored 55 marks out of 100 marks, the Selection Committee has not recommended his candidature for selection and the Selection Committee recommended the following names in B.C-D category, i.e., 2^nd petitioner’s category, both in Nuzvid and R.K.Valley campus and the revised selection list submitted to this Court is given below:

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S.No.	Name of the Selected Candidate	Category	Marks Scored (100)	Selected Campus
1	Cheepurupalli Vasu	BC-D	80	Nuzvid
2	Dhananjayulu Avula	BC-D	77	Nuzvid
3	Naga Srinivasa Rao	BC-D	74	R.K.Valley
4	BhanuKiranG	BC-D	72	R.K.Valley

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It is further stated in the counter that no candidate was selected with less than 70 marks out of 100 marks in the Mechanical Engineering Department in all the categories including SC and ST category and the last candidate, who got selected in R.K.Valley campus under B.C-B category, has scored 72 marks out of 100 marks, whereas the 1^st petitioner scored 59 marks out of 100 marks and therefore, the Selection Committee rightly did not recommend him for selection and all the candidates who scored more than 70 out of 100 marks and the 2^nd petitioner’s name has not been recommended by the Selection Committee as he scored less marks, i.e., 55 out of 100 marks, as he mentioned even if there is vacancy in the B.C-D category, he would not have been selected as the minimum cutoff mark for selection is 70 for Mechanical Department as the

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Selection Committee did not recommend the case of the 1^st petitioner after scoring 59 out of 100 marks and the 2^nd petitioner scoring 55 out of 100 marks (no candidate was selected with less than 70 marks out of 100 marks in the Mechanical Engineering Department in all the categories including SC and ST).

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It is also the contention of the respondent-University that as per the direction of this Court in Batch of Writ Petitions, they have revised the selection list and the same was approved by this Court in W.P.M.P.No.4126 of 2016 in W.P.No.5107 of 2015 by an order dated 12.02.2016. Learned counsel for the respondent-University would contend that mere listing of the petitioners’ names in the list of performance assessment cannot be treated as a selection list/merit list, their cases were not considered, as their names were not mentioned in the select list/merit list as recommended by the Selection Committee.

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Learned counsel for the 2^nd respondent-University has relied on the judgment of the Hon’ble Apex Court in Dr.

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Basavaiah v. Dr. H.L.Ramesh and others³ for the proposition that recommendations of Expert Committee – Interference withImpermissibility – Held – Courts should show difference to recommendations of Expert Committee particularly when no mala fides have been alleged against the Experts constituting Selection Committee – Court should not endeavour to sit in appeal over decisions of the Experts.

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On analyzing the submissions of both the petitioners as well as the respondents, this Court frames the following issue:

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“Whether providing of eligibility marks after holding written examination, the respondents are changing the rule of game after the game starts?”

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Admittedly, petitioners 1 and 2 have secured only 59 and 54 marks respectively out of 100 marks and the cut-off marks was prescribed by the Selection Committee, which was nominated as per the U.G.C. Guidelines is 70 marks. As per the Selection Committee, the petitioners are not meritorious candidates.

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3 (2010) 8 SCC 372

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The Hon’ble Apex Court in the case of Ashwani

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Kumar Singh v. U.P.Public Service Commission and others⁴ held that it is not a rule of universal application that whenever vacancies exist, persons who are in the merit list per force have to be appointed and it is held therein that if the employer fixes the cut-off position, the same is not to be tinkered with unless it is totally irrational or tainted with mala fides. It was further stated therein that the employer in its wisdom may consider the particular range of selection to be appropriate and the decision of the employer to appoint a particular number of candidates cannot be interfered with unless it is irrational or mala fide.

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The Hon’ble Apex Court in the case of State of Haryana v. Subhash Chandra Marwah and others⁵ held that it is open to the Government to fix a score which is higher than the one required for eligibility for the post with a view to maintain the high standard of competition.

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4 (2003) 11 CC 584

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5 AIR 1973 SC 2216

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The Hon’ble Apex Court in the case of Jharkhand Public Service Commission v. Manoj Kumar Gupta⁶ held that the eligibility tests are not meant for selection to any post but is conducted to determine the eligibility of the candidates for appointment as Lecturer. In the same judgment, the Hon’ble Apex Court further stated that the basic question which engaged the attention of the Court was whether persons who do not have the requisite qualifications, could be appointed as Teachers.

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In East Coast Railway and another v. Mahadev Appa Rao and others⁷ , the Hon’ble Apex Court held that it is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the selection list.

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In C.Chennabasavaiah and others v. State of Mysore⁸ a Constitution Bench of the Hon’ble Apex Court held that appointment of candidates who had secured lesser marks in

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6 (2019) 20 SCC 178

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7 (2010)7 SCC 678

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8 AIR 1965 SC 1293

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preference to those who had secured greater marks could not be sustained.

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In Manoj Kumar Gupta’s case (5 supra) and in Municipal Corporation of Delhi v. Surendra Singh and others⁹ the Hon’ble Apex Court while dealing with an identical situation of recruitment of Teachers, where cut-off marks was not prescribed in the advertisement, but later prescribed, after examination has been conducted, held that if the employer fixes the cut-off position, the same is not to be tinkered with unless it is totally irrational or tainted with mala fides.

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Learned counsel for the petitioners relied on the judgment of the Hon’ble Apex Court in K.Manjusree’s case (2 supra), wherein it was held as follows:

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"Much reliance has been placed by the learned Senior Counsel for the private respondents-Shiksha Mitras in the case of K. Manjusree v. State of A.P. and another [2008 (3) SCC 512], wherein the question was whether correct criterion was adopted in making recruitment for posts of District & Sessions Judge which was granted by the A. P. State Higher Judicial Service

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9 (2019)8 SCC 67

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Rules, 1958. The Rules prescribed quota for direct recruitment, educational qualifications, etc., but did not prescribe any criterion for selection. There were however Resolutions dated 24.7.2001 and 21.2.2002 which prescribed criteria for selection of candidates. According to prescribed criterion, there were 75 marks for written examination and 25 for interview. It was decided vide Resolutions dated 30.11.2004 that existing criterion would be followed but while holding written examination, 100 marks were prescribed instead of 75. The High Court made two changes on administrative side after written examination and interviews were over. First, marks for written examination were proportionately scaled down so as to maintain ratio between written examination and interview as 3:1 (75:25) instead of 4:1 (100:25). This was done because original criterion prescribed 75:25 ratio. Secondly, it introduced minimum qualifying marks for interview also. This resulted in reshuffling of selection list. The Apex Court considered the effect of these recruitments and concluded that the Resolutions dated 24.7.2001 and 21.2.2002 provided qualifying marks for written examinations only but not for interview. Considering the aforesaid facts and circumstances, the Apex Court has held that the introduction of requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of

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the game after the game was played, which is clearly impermissible."

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In the judgment in K.Manjusree’s case (2 supra), marks were prescribed for written test and interview, later it was changed in the present case, no marks were prescribed in the notification. Hence, the judgment is not applicable to the present facts of the case.

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The learned counsel for the respondents relied on the judgment of the Hon’ble Apex Court in Basavaiah (Dr.) v. Dr. H.L.Ramesh [(2010) 8 SCC 372] (3 supra) for the proposition that in academic matters, the Courts have very limited role, particularly when no mala fides alleged against the aspects consisting the selection committee, it would normally be prudent, wholesome and safe for the Courts to leave the decision to the affirmation and experts. As a matter of principle, the Courts should not make an endeavour to sit an appeal over the decisions of the experts. The Courts must realize and appreciate its constraints and limitations in academic matters.

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A Division Bench of Madras High Court at Madurai Bench in the case of State of Agriculture and Horticulture Diploma Holders Association v. State of Tamil Nadu (MANU/TN/0126/ 2010), held that the Court can interfere even in service jurisprudence but only in extreme cases and it had observed that the decisions referred to or relied on repeat the legal position that interference by Court in the recruitment process is limited only to cases where the oblique motives and the injustices proven are apparent.

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In Dr. Preeti Srivastava v. State of M.P.¹⁰ , the Hon’ble Apex Court held that in view of the supervening public interest which has to be balanced against the social equity of providing some opportunities to the backward who are not able to qualify on the basis of marks secured by them for post-graduate learning, it is for an expert body such as the Medical Council of India, to lay down the extent of reservations, if any, and the lowering of qualifying marks, if any, consistent with the broader public interest, in having the most competent people for

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10 (1999) 7 SCC 120

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specialized training and the competing public interest in securing social justice and equality.

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The Hon’ble Supreme Court in catena of decisions, viz., in Chandra Prakash Tiwari v. Shakuntala Shukla and Union of India v. S.Vinod Kumar , laid down the principle that when a candidate appears the written examination without objection and he subsequently is found to be not successful, a challenge to process is precluded. The question of entertaining a petition challenging the written examination would not arise, where a candidate has appeared and participated. He or she cannot subsequently turn around and contend that the process was unfair or that there was a lacuna therein merely because the result is not palatable. The petitioners herein have knowledge about the advertisement and nowhere, it was indicated in the notification/advertisement about the cut-off marks. The same was not challenged by the petitioners herein. Therefore, now the petitioners cannot turn around and would contend that prescribing cut-off marks for selection was bad.

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It is trite law that the Professor vacancies in certain disciplines were not filled up for want of meritorious candidates, the Courts should not interfere. The recruiting agency cannot be compelled to fill up all available posts even if the persons of the desired merit are not available.

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The selection process made by the respondents herein and which was affirmed by this Court in W.P.M.P.No.4126 of 2016 in W.P.No.5107 of 2015 dated 12.02.2016 and as per the marks secured by the petitioners is very less, merely a post is kept vacant in the B.C-B category, a non-meritorious candidate for want of meritorious candidate cannot be appointed as per the observations made in the aforesaid judgments.

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A candidate who got more marks in B.C-D category was appointed in open category as per revised list prepared, candidate who scored more marks than the 2^nd petitioner was appointed in the B.C-D category. It is not the case of the petitioners that the Selection Committee has selected the candidates with mala fides. Therefore, the issue is answered in negative to the petitioners and in favour of the respondents.

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