Supreme Court: In an appeal against the judgment passed by the Division Bench of Karnataka High Court, wherein the Court has upheld the Single Judge judgment setting aside the appellant’s selection and appointment on the ground that the University specifically declared in the advertisement that the ‘Mode of Selection’ shall be as per the Karnataka State Civil Services (Unfilled Vacancies Reserved for Persons Belonging to the SC’s and ST’s) (Special Recruitment) Rules, 2001 (‘2001 Rules’). Therefore, appointment of the appellant, who did not fall in the age bracket of 29-40 years, was illegal, the division bench of PS Narasimha* and Aravind Kumar, JJ. while upholding the impugned Judgments, said that in compliance with the statutory requirement and the Governmental demand, the University issued the advertisement declaring that the ‘Mode of Selection’ shall be as per the 2001 Rules.
Background:
Bangalore University, constituted under the Karnataka State Universities Act, 2000, issued an advertisement or filling up backlog vacancies to posts reserved for scheduled castes (SCs) and scheduled tribes (STs). Out of the 34 posts advertised for Assistant Professors, one post of Assistant Professor in the department of English was reserved for a candidate belonging to the ST community.
The appellant and respondent 7 are both ST candidates, and both of them were eligible for appointment to the solitary post of Assistant Professor in the English department reserved for a candidate belonging to the ST community. While the appellant was higher in merit, respondent 7 was within the age bracket of 29-40 years, and as such, was a preferential candidate as per Rule 6 of the 2001 Rules. Though the University advertised that the ‘Mode of Selection’ shall be as per the 2001 Rules, it followed its own procedure and proceeded to appoint the appellant based on merit. Respondent 7 challenged the appointment of the appellant by filing a Writ Petition before the Karnataka High Court, wherein the High Court declared the appointment of the appellant illegal. Aggrieved, the appellant and the university filed their respective writ appeals, before the Division Bench of the High Court. The Division Bench confirmed the order of the Single Judge and directed that respondent 7 is entitled to be appointed as per the 2001 Rules. Thus, the present appeal was filed.
Issue: Whether the advertisement issued by the University intending to follow the 2001 Rules made under the Civil Services Act suffers from any illegality?
Analysis:
The Court took note of Karnataka State Civil Services Act, 1978; the Karnataka SCs, STs and OBCs (Reservation of Appointments etc.) Act, 1990 (‘Reservation Act,1990’); and the Karnataka State Universities Act, 2000 (‘KSUA, 2000’)
The Bench noted that the relevant law governing the filling up of backlog vacancies as per the advertisement issued by the University will be the Reservation Act, 1990 and the 2001 Rules. These rules are made under the Civil Services Act, which relates to civil services under the State of Karnataka.
The Court further noted that Bangalore University is governed by the KSUA, 2000. As per Section 53 of KSUA, the ‘Board of Appointment’ to be the appointing authority for teachers and other employees of the University. However, as per Section 54 notwithstanding anything in Section 53, but subject to the rules and orders of the State Government, appointments to the posts of professors, readers, principals and asst. professors shall be made by the syndicate as per the scheme evolved by the UGC. Furthermore, under Section 78, the Universities Act has an overriding effect over other statutes.
The Court noted that apart from the Universities Act, there is an overarching law, namely, the Reservation Act, 1990, which intends to provide reservations in favour of SCs, STs and other OBCs in the State Civil Services and establishments.
The Court said the controversy about filling up backlog vacancies of SCs and STs by the University ends with the insertion of Section 4(1A) of the Reservation Act, 1990. In fact, the provocation for introducing sub-Section (1A) is that the mandate of the 2001 Rules was not followed by the Universities. To extend the provision of the 2001 Rules to Universities, sub-Section (1A) was introduced which is clear from the Statement of Object and Reasons of the amendment introducing sub-section (1A).
The Court noted that the identification, procedure and the time for computing, filling and completing the exercise of filling up backlog vacancies is specifically delegated under sub-Section (1A) to the Government. Further, it said that the intent behind the amendment is to vest the power of specifying the method, procedure and time for identifying, filling and completing the same to the State. Therefore, the Court concluded that in compliance with the statutory requirement and the Governmental demand, the University issued the advertisement declaring that the ‘Mode of Selection’ shall be as per the 2001 Rules.
The Court noted that there have been letters by the Government demanding compliance with the 2001 Rules while filling up the backlog vacancies for posts for SCs/STs and OBCs. Similar letters were addressed by the State Government to the University directing that the procedure contemplated under the 2001 Rules must be followed for filling up the vacancies of SC/ST and other backward classes in the University. Thus, the Court said that the legality and validity of the University’s advertisement is beyond doubt.
The Court said that the requirement of the Government to specify the manner, procedure and time for identifying, filling backlog vacancies and completing the same was clear to the University. It is with this view that the university advertised that the ‘Mode of Selection’ shall be as per the 2001 Rules.
The Bench agreed that respondent 7 must succeed and be restituted to the rightful position that he had earned, however, it said that the University must also address the concern of the appellant, as the unfortunate situation has arisen not because of anything wrong attributable to the appellant, but due to the indifferent manner with which the University conducted itself.
Thus, the Court asked that to obviate the injustice caused to the appellant, the University may consider creating a supernumerary post to accommodate her. The Court clarified that it is fully conscious of the limitations in creating such posts over and above the positions that are borne by a cadre, but as this is an extraordinary situation for exercising such discretion. The Bench left it to the University to decide on this issue and pass the necessary orders.
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