Chandrakantaraj Urs, J.
1. These two Petitions are disposed of by the following common order though they cannot be said to be either common on questions of facts or law. They are so disposed of because the result in the first of the Petitions willdefinitely affect the petitioner in the second of the Petitions. What really is common to both the Petitions is the desire of the petitioners therein to fill-up the same vacant post of Professor of History in the University of Mysore.
2. The necessary facts alleged in the two Petitions and the returns filed in respect thereof will be briefly noticed and they are as follows: The post of Professor of Economic History appears to have been advertised more than once, to be precise, till this date, four times. It is the fourth advertisement which has been challenged by the petitioner-Dr. K. A. Shivanna as being without jurisdiction. The grievance of the petitioner in the first of the petitions Prof. G. R. Rangaswamaiah is that the Chancellor has erred in failing to appoint, in terms of sub-section (6) of Section 49 of the Karnataka State Universities Act 1976, (hereinafter referred to as the Act), as per the recommendation of the Board of Appointments made pursuant to the Meeting held on 26-11-1983 which proceeding was as a result of the third of the advertisements for the same post. While the petitioner in the first of the petitions has alleged that the action of the 1st Respondent-Chancellor of the 2ndRespondent-University in rejecting the recommendation of the Board of Appointments and directing re-advertisement as being without jurisdiction and in excess of the powers conferred by the Statute on him, the Counsel for the petitioner in the second of the petitions has been heard both in regard to the relief asked for by the petitioner in the first of the Petitions as well as the merit of his own petition.
3. There is no dispute that in response to the 3rd advertisement in these two Writ Petitions we are notconcerned as to the legality or otherwise of the result of the 1st and 2nd advertisements) that both the petitioners, along with another applicant belonging to Scheduled Caste appeared before the Board of Appointments constituted under Section 49(2) of the Act. Later, in the course of the order, I shall extract the relevant portions of the proceedings which will indicate that the Scheduled Caste candidate was found not qualified as per the advertisement and therefore, though that particular post was reserved for a Scheduled Castecandidate, his candidature was rejected and the post treated as one available for general merit group.
4. Of the remaining two candidates, the petitioner in the first of the petitions was recommended for appointment by the Board of Appointments. But the Chancellor after necessary enquiries rejected the recommendation and directed that the post in question be re-advertised on 12-1-1984. Aggrieved by that rejection, the petitioner in W. P. No. 3193/84 has approached this Court under Articles 226 and 227 of the Constitution inter alia contending that the 1st Respondent-Chancellor did not have the authority to reject the recommendation of the Board on his own assessment of what constituted sufficient qualification when there was no lack of the minimum qualifications prescribed for the post. In the result, he has prayed for the issue of a Writ of Mandamus directing the 1st respondent to appoint the petitioner to the post of Professor in History of Mysore University in accordance with the recommendations of the Board of Appointments. On the other hand, the petitioner in W.P. No. 7751/84 has approached this Court soon after the 1st respondent-University advertised once again the post in question on 16-4-1984 inter alia, contending that the Chancellor should have proceeded to appoint him to the post after he had refused to accept the recommendation of the Board of Appointments in favour of the petitioner in the other Writ Petition. It is further contended for him that the respondent-Chancellor has no competence to direct fresh advertisement, as the Board once it makes arecommendation, it becomes functus officio.
5. In the light of the above undisputed facts what really fall for consideration are :
(1) Whether the Chancellor in rejecting the recommendation acted within the jurisdiction of the power conferred on him or vested in him under sub-section (6) of Section 49 of the Act ?
(2) Whether Dr. Shivanna, the petitioner in the second of the petitions, was entitled to be considered if the petitioner in the first of the petitions was not accepted by the Chancellor ?
(3) Whether the petitioner in the second of the petitions is right in contending that the Chancellor has no power to direct re-advertisement of the post ?
6. However, 1 have permitted Mr. H. Subramanya Jois to address arguments even in regard to the recommendation of the petitioner in the first of the petitions, as he has at length alleged malafides and favouritism on the part of the Board of Appointments inconsistently favouring the petitioner in the first of the petitions to the post in question. Even otherwise I consider it proper that he should be heard on all questions arising in this matter though he was not specifically made a party in the first petition because, if the petitioner in the first of the petitions succeeds then there will be no basis for the petition filed by Dr. Shivanna.
7. The Learned Advocate General has made available the records of the Chancellor and has addressed his arguments. Similarly, the respondent-University has filed its statement of objections in both the cases. I do not think I need notice any specific averment in the statement of objections except the denial of the allegation made by Dr. Shivanna in regard to acts of favouritism on the part of the members of the Board of Appointments. Otherwise, the facts themselves are not in dispute.
8. The scope of sub-section (6) of Section 49 of the Act has come up for consideration before this Court in more than one case. Rama Jois J., by a common order in Writ Petitions Nos. 3779, 5269, 5934, 6055 and W.P. No. 7804/1979 A.V. Venkataratna & Ors. -v.- Chancellor held that the sub-section in question did not confer power on the Syndicate or the Chancellor to reject or modify the selection made by the Board even by recording reasons. He further held that the employment of language 'shall make appointments' in accordance with the list of persons selected by the Board to be mandatory. The only exception he provided was that the Chancellor could reject if there was any procedural illegality or want ofqualification or existence of disqualification in the candidates listed and recommended by the Board of Appointments. I also had occasion to consider in Shri S. Virupakshaiah -v.- The Chancellor, Bangalore University and another 1981(2) KLJ 433 the very same sub-section on the powers of the Chancellor. In the said decision, placing reliance upon the ruling of the Supreme Court in the case of The University of Mysore and another -v.- CD. Govinda Rao and another : 4SCR575 I held that when the Courts had denied themselves the power to re-assess the merits of the candidates who appeared before the Board of Appointments, it was not open to the Chancellor as well to re-assess the qualifications of the candidates recommended and in any way depart from the recommendations made. However, that decision fell for consideration before the Division Bench of this Court in Writ Appeal No.1285/1981 Chancellor -v.- Virupakshaiah. On the facts of that case, the Appellate Bench of this Court came to the conclusion that the Board of Appointments had not applied its mind and specifically exempted the candidate therein from possessing the qualification prescribed under clause (b) of first of the conditions in the advertisement. That is, the need to have a consistently good performance in the academic career of the candidate in regard to qualification as advertised. But otherwise did not find fault with the Judgment of either Rama Jois, J. or the reasoning adopted by me in Virupakshaiah's case. It is in the light of this exposition of the law that it would be useful to notice here the proceedings of the Board of Appointments held on 26-11-1983 as a result of the third advertisement.
9. From the records made available by the University, the proceedings are noticed as follows :
'For one post of Professor of History in the Post Graduate Department of History, 3 applications were received and all the 3 appeared before the Board for interview. The vacancy is for Scheduled Caste candidates ; but, this post is advertised for the third time and no suitable Scheduled Caste candidates had applied. On this occasion, however, one Scheduled Caste candidate is an applicant, but he is not qualified for the post of Professor. Hence, the post has been treated as a General Merit vacancy.
Based on the qualifications, teaching and research experience, research publications, and performance in the interview, the Board recommends that Shri G. R. Rangaswamaiah, be offered the post of Professor of, History. Shri Rangaswamaiah has a B.A. (Hons.) Degree and an M.A. Degree in History. His percentage of marks in B.A. (Hons.) is 54.5% and in MA. 52%. He has no Ph.D. Degree. However, Shri Rangaswamaiah has 3 books to his credit and over 25 research publications. The Board considers the quality of his research publications as equivalent to that of a Ph.D. and better. The Board, therefore, feels that the Essential qualifications A and B are fulfilled in his case. He has over 27 years of teaching cum-research experience, mostly at the Post Graduate level and he has also shown capacity for independent research work by successfully guiding candidates for Ph.D. Degree. One candidate who has worked under him has already obtained the Ph.D. and the second candidate has submitted his thesis. Four more candidates are working under him for Ph.D. The Board, therefore, feels that he is fully qualified for the post.'
The only way in which the application of mind by the Board of Appointments falls short of the requirements pointed out by the Division Bench of this Court in Virupakshaiah's case is that there is no specific mentioning of the exemption created of the application of clause (b) of condition No.1 in the advertisement regarding qualification. The petitioner in the first of the petitions has obtained 54.5 percent marks in B.A. (Hons.) Degree examination and 52 percent marks in M.A. which by the standards laid down by the Supreme Court in the case of Dr. J.P. Kulshrestha and others -v.- Chancellor, Allahabad University and Others : (1980)IILLJ175SC falls short of being considered as high second class. However, the Board of Appointments has specifically asserted that the essential qualification of clauses (a) and (b) are fulfilled in the case of the petitioner in the first of the petitions. In my opinion that should cover the case of the petitioner in the first of the petitions even in regard to lack of qualification under clause (b) of condition No. 1 in the advertisement. If there is sufficient application of mind by the Board of Appointments, then ruling in Anniah Gowda's case should bind the Chancellor to accept the recommendation.
10. Unfortunately, the Chancellor was taken a back in the first instance by the recommendation made of a candidate who did not possess Ph.D. Degree when a candidate possessing such a Degree was available for consideration by the Board of Appointments. He, therefore, caused further enquiries to be made as to the reasons for overlooking the claim of a Ph.D. candidate. The Vice-Chancellor of the University has furnished those details as Chairman of the Board of Appointments. It is only thereafter that the Chancellor came to the conclusion, evidently not being appraised of the judicial decisions of this Court in that behalf, that the equivalent qualification possessed by the petitioner in the first of the petitions was not in his opinion equal to a Ph.D. Degree. I am afraid this re-assessment by the Chancellor is not permissible under Section 49(6) of the Act. Once having come to this conclusion, this Court has no choice but to quash the direction of the Chancellor for re-advertising the post and remit the matter to the Chancellor to consider the recommendation of the Board of Appointments in the light of the decisions already rendered by this Court.
11. However, it is necessary to notice the arguments put forward by Mr.Subralmanya Jois for the other petitioner who stands to lose. His contention is that if the first candidate was not eligible for appointment in the eye of the Chancellor, his client should have been appointed as he was the only other candidate interviewed by the Board of Appointments with qualifications which in his opinion are quite high as evidenced by Annexure-A to his petition. He has had the distinction of working in several foreign universities under foreign Professors. He claims to havepublished several thesis and written several books specifically on Economic History. But as already noticed by me, this Court is precluded from assessing the merits of rivalcandidates when a competent academic body has already done that exercise. Judges can rarely substitute their assessment and appraisal in place of the assessment made by anacademic body specially constituted strictly in accordance with the provisions of the Act. In any event, what is noteworthy is that the proceedings of the Board of Appointments do not disclose that Mr. Subramanya Jois's client Dr. Shivanna was recommended at all for appointment. Therefore,assuming that the petitioner in the first of the petitions was really not qualified then the only choice the Chancellor would have had was to direct re-advertisement of the post. In that view of the matter, the contention must necessarily fail.
12. I do not think the second ground of malice, bias and favouritism really stands judicial scrutiny. Apart from wanting in specific pleadings, there isonly a general assertion that one or two members of the Board of Appointments were well disposed towards the other candidate namely, the petitioner in the first of the petitions. There is no clear allegation as to the ill-will the members of the Board had towards Dr. Shivanna. In fact, the matter should be left there in the light of the disclosure made in the records of the Chancellor as on that disclosure the Chancellor appears to have been satisfied that there was no need for calling for the name of Dr. Shivanna. It should be in the interest of Dr. Shivanna in the second of the petitions not to press this matter for a judicial opinion and with this view the Learned Counsel fairly agrees. Therefore, the matter is left at that.
13. It was however mentioned by Mr. Subramanya Jois that one other petition namely, W.P. No. 1720/1984 filed by Anantharamaiah the Scheduled Caste candidate who was held to be unqualified by the Board of Appointments was and is pending in this Court and as such without hearing that petitioner also these two petitions should not bedisposed of as it will not be proper. True, in the normal Course of events I would have heard that matter also. When the matter came up for orders on the last date of hearing the understanding was that all three should be heard and disposed of. The Counsel appearing for the Scheduled Caste candidate was directed to file a memo in regard to the number of the writ petition which should be posted along with these petitions to-day. But apparently the Counsel has not filed the memo nor is that case posted. If he makes out a case for interference by this Court, then the entire exercise of the third advertisement also would have become futile. But that will depend upon the decision of this Court in that case. But the limited questions raised in these petitions have been answered. With that Dr. Shivanna the petitioner in the second of the petitions cannot have any grievance. The fact that a 4th advertisement was inserted and interviews proceeded with and results not announced on account of the direction given by this Court in W.P. No. 7751/84 does not in any way affect the result of the third advertisement which is now remitted for further consideration by the Chancellor. It is only after the Chancellor has passed his final orders that there may be other questions for consideration.
14. Mr. Subramanya Jois has further contended that the proceedings of the Board do not reveal the Board had applied its mind to the qualifications possessed by Dr. Shivanna and therefore the recommendation of the Board should go as a whole for lack of application of mind and non-consideration of the qualifications of Dr. Shivanna. The proceedings have been extracted above. When there are only two candidates to be considered, the Board need not make a relative assessment of both the candidates. If assessment is made of one candidate as being the better suited, the other candidate stands automatically rejected by express consideration.
15. In this view of the matter, the first of the petitions is allowed and a mandamus will issue to the Chancellor to consider the recommendation of the Board of Appointments made on the basis of its proceedings held on 26-11-1983 in the matter of recruitment of Professor of Economic History in the respondent University of Mysore in the light of the observations made in this order as well as the rulings of this Court, earlier mentioned.