Top Court suggests Bangalore University to create supernumerary post to accommodate Professor who was wrongfully denied appointment, says University is bound to comply with its advertisement
Justices Pamidighantam Sri Narasimha & Aravind Kumar [03-05-2024]

Read Order: CHAITRA NAGAMMANAVAR v. STATE OF KARNATAKA & ORS [SC- CIVIL APPEAL NOS. 6772-6773 OF 2023] 

LE Correspondent

New Delhi, May 6, 2024: In a case of wrongful denial of appointment, the Supreme Court has suggested that the Bangalore University might create a supernumerary post to accommodate the respondent.The Top Court also opined that the Karnataka State Civil Services (Unfilled Vacancies Reserved For Persons Belonging to the SCs and STs) (Special Recruitment) Rules, 2001would be the guiding principles for the selection in question.

The Bangalore University, constituted under the Karnataka State Universities Act, 2000, issued an advertisement for filling up backlog vacancies to posts reserved for scheduled castes (SCs) and scheduled tribes (STs). 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 advertisement provided that the list of selected candidates will be prepared as per the Karnataka State Civil Services (Unfilled Vacancies Reserved For Persons Belonging to the SCs and STs) (Special Recruitment) Rules, 2001. Rule 6 of the 2001 Rules provides for a preference in favour of candidates between the age bracket of 29 and 40 years. The appellant and respondent No. 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 no. 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 proceeded to appoint the appellant on the basis of merit. Respondent no. 7 naturally challenged the appointment of the appellant by filing Writ Petition before the High Court of Karnataka.

The Single Judge allowed the writ petition. Consequently, Respondent No. 7, who is the preferential candidate, was directed to be appointed. The appellant and the university filed their respective writ appeals before the Division Bench. While confirming the order of the Single Judge, the Division Bench also directed that respondent No. 7 was entitled to be appointed as per the 2001 Rules. Thus, the present Civil Appeal was filed by the appellant, who was the originally appointed candidate, before the Apex Court.

The Division Bench of Justice Pamidighantam Sri Narasimha & Justice Aravind Kumar referred to the letters by the Government demanding compliance with the 2001 Rules while filling up the backlog vacancies for posts for SCs/STs and OBCs. Even before the advertisement was issued on 21.03.2018, there was a letter addressed by the Principal Secretary, Department of Higher Education, State of Karnataka, to the university on 27.02.2018, instructing the latter to fill up backlog teaching posts as per the 2001 Rules and the guidelines prescribed by the university. The Bench noticed the fact that similar letters were addressed by the State Government to the university on 22.05.2018 and 09.06.2021, 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. 

“While we reject the submission of Mr. Shailesh Madiyal that the advertisement declaring that the 2001 Rules will be the Mode of Selection, is a mistake, we also hold that the university is bound to comply with what is declared in its advertisement: the 2001 Rules will be the guiding principles for the selection in question”, the Bench held.

There was no uncertainty left after the introduction of sub-Section (1A) to Sec. 4 of the Reservation Act, 1990, requiring an establishment, i.e., the university, to take action for filling the backlog vacancies as a one-time measure by following the method prescribed by the Government. Secondly, the purpose and object of the amendment was amply clear from its SOR contemplating the application of the 2001 Rules for the universities. 

It was observed that the conduct of the university in not responding to the categorical demands of the Government through its letters to implement the 2001 Rules was conclusive about its acceptance of the applicable law and the policy, and therefore, the advertisement. Thus, it was opined that the requirement of the Government to specify the manner, procedure and time for identifying, filling backlog vacancies and completing the same was amply clear to the university. It was with this view that the university advertised that the Mode of Selection would be as per the 2001 Rules.

Dismissing the appeals, the Bench held that the writ petition filed by respondent no. 7 was rightly allowed by the Single Judge. 

However, the Bench noted something unusual about the university’s conduct. Though the appellant was appointed in contravention of Rule 6 of the 2001 Rules, she continued in office during the subsistence of the writ proceedings. When the Single Judge allowed respondent no.7’s writ petition and set aside the appellant's appointment, the appellant approached the Division Bench and obtained a stay. After the Division Bench affirmed the Single Judge’s order and dismissed the writ appeal, she approached this court and again obtained a stay, and this order was operating till date. 

Noting that the appellant's appointment in 2019 has been continuing till date without any interruption and respondent no. 7 was wrongfully denied appointment, the Bench opined that respondent no. 7 must succeed and be restituted to the rightful position that he had earned.

The Bench further held that the University must also address the concern of the appellant. “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. In order to obviate the injustice caused to the appellant, the university may consider creating a supernumerary post to accommodate her.”

Relying upon the judgments in Official Liquidator v. Dayanand), (2008) 10 SCC 1 [LQ/SC/2008/2207]  and N.T. Devin Katti v. Karnataka Public Service Commission) [LQ/SC/1990/195], the Bench  referred to the limitations in creating such posts over and above the positions that are borne by a cadre but also highlighted the extraordinary situation for exercising such discretion.

Dismissing the appeals, the Bench held, “We leave it to the university to take a decision on this issue and pass the necessary orders.”