A.Parvathy v. Bharathiyar University

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 11.09.2009CORAM:THE HONOURABLE MR. JUSTICE S. NAGAMUTHUWrit Petition No.10687 of 2009 andM.P.No.1 of 2009A.Parvathy... Petitioner Vs1.Bharathiyar University,Rep. By its Registrar,Coimbatore – 641 046.2.Kavitha... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia for a writ of Declaration, declaring that the selection andappointment of the second respondent to the post of AssistantTechnical Officer (Library) by the first respondent as illegal,arbitrary, contrary to law and contrary to the advertisement callingapplication for the post in Dinamalar Daily Edition dated 10.09.2008and consequently, direct the first respondent to consider and appointthe petitioner to the post of Assistant Technical Officer-Library. For petitioner : Mr.Balan HaridasFor R.1: Ms.N.KavithaFor R.2: No AppearanceORDER The first respondent Bharathiyar University called forapplications from eligible candidates for the post of “AssistantTechnical Officer (Library)” in the local ‘Tamil Daily’ dated10.09.2008. The last date for submission of application for the saidpost as per the advertisement was 06.10.2008. The essentialqualifications for making application for the said post as per theadvertisement are as follows:-“(1)Bachelor’s degree in any subject withcertificate in Library Science;(2)Typewriting Lower in English and Tamil https://hcservices.ecourts.gov.in/hcservices/ (3)AGE:Should not exceed thirty threeyearsDesirable:Previous Experience in anyrecognized LibraryRelaxation applicable as per Governmentnorms to the respective community.” 2.According to the petitioner, she has got Master’s Degree inLibrary Science, Typewriting Lower in English as well as Tamil. Shesatisfies the other qualification also such as age, etc. 3.The second respondent also made application to the saidpost. Admittedly, she has possessed Bachelor’s Degree in LibraryScience and Typewriting Lower in English and she also falls withinthe age limit. But she does not possess Typewriting Lower in Tamil. 4.The grievance of the petitioner is that though thepetitioner satisfies all the required qualifications, instead ofselecting and appointing her, the first respondent has selected andappointed the second respondent who is not at all qualified even tomake application to the said post. Therefore, the petitioner has comeforward with the present writ petition seeking appropriate relief. 5.The first respondent has not filed any counter. But, oninstructions from the first respondent, the learned counsel for thefirst respondent would oppose the writ petition. According to her,totally six candidates made applications to the said post includingthe petitioner and the second respondent. All the six candidates werecalled for interview. At the time of interview, it was found that thepetitioner had Bachelor’s Degree in Library Science obtained fromMadurai Kamarajar University, through Distance Education Programme.It was also found that the petitioner has got Typewriting Lower inEnglish as well as Tamil. The learned counsel would further submitthat the second respondent has got Bachelor’s Degree in LibraryScience by having undergone regular course. She would further submitthat the second respondent has Typewriting Lower in English but shedoes not have Typewriting Lower in Tamil. But, the first respondentselected and appointed the second respondent to the said postbecause, she has got knowledge in computer. According to the firstrespondent, the knowledge in computer operation was considered to beequivalent to Typewriting Lower in English as well as Tamil andtherefore, the second respondent was found to be eligible forappointment to the said post. 6.In so far as the petitioner is concerned, according to thelearned counsel for the first respondent, since the Bachelor’s Degreein Library Science was not obtained by undergoing regular course but https://hcservices.ecourts.gov.in/hcservices/ the same was obtained by undergoing Distance Education Programme, thesame was not preferred by the University. That is the reason why thepetitioner was rejected though, she has got not only Bachelor’sDegree in Library Science but also Master’s Degree in Library Sciencetogether with Typewriting Lower in English and Tamil.7.Though notice has been served on the second respondent andthough her name was printed in the cause list, she has not made anyappearance. It appears that the second respondent is not interestedin prosecuting the matter. Hence, this Court proceeds to dispose ofthe writ petition after hearing the learned counsel for thepetitioner and the learned counsel for the first respondent.8.I have heard the learned counsel for the petitioner and thelearned counsel for the first respondent.9.A perusal of the advertisement would go to show that one ofthe essential qualifications is Typewriting Lower in English andTamil. Admittedly, the petitioner was the only candidate who hadTypewriting Lower in English and Tamil. However, the other fivecandidates including the second respondent do not have TypewritingLower both in English and Tamil. More particularly, the secondrespondent has got Typewriting lower in English alone and not inTamil. Thus, all the five candidates including the second respondent,except the petitioner, should have been rejected as they do notsatisfy the qualifications prescribed in the advertisement. But,curiously, the first respondent has called all the six candidates forattending the interview. At the time of interview, the petitioner hasproduced not only Bachelor’s Degree certificate in Library Sciencebut also Master’s Degree Certificate in Library Science. But she hasbeen rejected on the ground that the Bachelor’s Degree Certificateobtained by her was by undergoing distance education programme andnot by undergoing regular course. A perusal of the advertisementwould go to show that there was no such classification or distinctionmade between the Bachelor’s Degree obtained by undergoing regularcourse and by distance education programme. Thus, the only reasonstated for rejecting the petitioner cannot be accepted.10.It is not the case that the petitioner does not satisfy theother qualifications. From the records, it could be seen that, as Ihave already stated, the petitioner is the only candidate who isfully eligible for appointment. But, for reasons which are not at allgermane to the selection process, the petitioner has been rejectedand instead, the second respondent has been appointed. As rightlypointed by the learned counsel for the petitioner, the said exerciseshould be termed as highly arbitrary requiring interference at thehands of this Court. https://hcservices.ecourts.gov.in/hcservices/

11.The learned counsel for the first respondent would rely ona judgement of the Hon’ble Supreme Court in Mohd. Sohrab Khan v.Aligarh Muslim University (2009 (4) SCC 555) wherein, it has beenheld as follows:-“It is the University authority whichknows best as to what is their requirement. If itwas necessary for the University to fill up thepost from the stream of Industrial Chemistry, itwould have so indicated in the advertisementitself, for in subsequent years specificadvertisement was issued by the University forfilling up the post of Lecturer in IndustrialChemistry by issuing an advertisement specificallyin that regard. The University, according to itsStatues 22, 21, 19 and 17(2)(i), under takesmultitier exercise for laying down essentialqualification for a particular post and then it isadvertised. It is also established from therecords that Pure Chemistry and IndustrialChemistry are two different subjects. The postadvertised was meant for a person belonging toPure Chemistry Department for if it was otherwise,then it would have been so mentioned in theadvertisement itself that a person holding aMaster’s degree in Industrial Chemistry shouldonly apply or that a person holding such a degreecould also apply along with other persons.The University can always have a person asa Lecturer in a particular discipline that itdesires to have, but the same must be specificallystated in the advertisement itself. In the matterof selection of candidates, opinion of theCommittee cannot act arbitrarily and cannot changethe criteria/qualification in the selectionprocess midstream. There could have been intendingcandidates who would have applied for becomingcandidate as against the said advertised past, hadthey known and were informed through advertisementand Industrial Chemistry is also one of thequalifications for filling up the said post. TheSelection Committee during the stage of selection,which is midway could not have changed theessential qualification laid down in theadvertisement.” 12.In my considered opinion, the said judgement, instead ofhelping the first respondent, it supports the case of the petitioner https://hcservices.ecourts.gov.in/hcservices/ only. As observed by the Hon’ble Supreme Court, in the case on handalso, if it was the intention of the University to prefer thecandidates having computer knowledge, nothing would have preventedthe University to make it abundantly clear in the advertisementitself and to say that Typewriting Lower English and Tamil is notrequired. Had it been done, several other candidates who do havecomputer knowledge would have made applications. Perhaps, they havebeen mislead by the advertisement, that Typewriting Lower in Englishand Tamil are essential and that is why there were only minimumnumber of applicants. Having issued such an advertisement, now it isnot open for the University to deviate from the same and to prescribea fresh qualification. It is like changing the rules of the gameafter the game has started which is impermissible under law.13.The learned counsel for the first respondent would furthersubmit that in the affidavit, the petitioner has not alleged any malafides and therefore, the selection cannot be interfered with. In myconsidered opinion, absolutely there is no substance in the saidargument. To challenge the selection process, it is not alwaysnecessary that mala fide is to be alleged. Even in the absence of anymala fides, if it is found that the selection has been done eitherillegally or irregularly, then the Court can interfere with the same.In the case on hand, as I have already stated, a person who is fullyqualified as per the advertisement has been rejected and instead, aperson who does not have the basic qualification as per theadvertisement has been selected and appointed. This is a classicexample as to how in an arbitrary manner, the selection could beconducted.14.The learned counsel for the first respondent would furthersubmit that in the event of this Court setting aside the appointmentof the second respondent, liberty may be given to the firstrespondent to make fresh advertisement and to make fresh selection. Ifind no justification at all in the said submission made by thelearned counsel. Having made an advertisement; having undertaken theprocess of selection and having found that the petitioner is fullyqualified, it is not at all open for the first respondent at thislength of time to seek such a liberty to make a fresh advertisement.Incidentally, if the petitioner is not qualified, then this Courtwould have no hesitation to give such liberty to the first respondentto issue fresh advertisement. But indisputably, the petitioner hasfully qualified to the said post and when that be so, I hardly findany reason as to why the University should have hesitation to appointthe petitioner in the said post. Therefore, the said request made bythe learned counsel for the first respondent is also to be rejected.Therefore, I do not have any hesitation to set aside the order ofappointment of the second respondent and with a further direction tothe first respondent to appoint the petitioner to the said post. https://hcservices.ecourts.gov.in/hcservices/

15.In the result, the writ petition is allowed. Theappointment of the second respondent is set aside and the firstrespondent is directed to appoint the petitioner as against the saidvacancy forthwith. No costs. Consequently, connected miscellaneouspetition is closed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarjbmToThe Registrar,Bharathiyar University,Coimbatore – 641 046.+2 cc to M/s.Balan Haridas, Advocate, SR.No.46838,46133+1 cc to M/s.N.Kavitha, Advocate, SR.No.46649W.P.No.10687 of 2009KK {CO}TP/1.10.2009.