Kerala High Court
M.K.Krishnadas vs Sree Sankaracharya Unty Of Sanskrit on 19 July, 2005
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 8571 of 2000
1. M.K.KRISHNADAS
... Petitioner
Vs
1. SREE SANKARACHARYA UNTY OF SANSKRIT
... Respondent
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated : 19/07/2005
O R D E R
.PL 60 .TM 3 .BM 3 .SP 2 S. Siri Jagan, J.@@ jAAAAAAAAAAAAAAAAA =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=@@ j O.P.Nos. 8571 & 18462/2000, 12352/2002,@@ j W.P(C)Nos.25777, 26486, 28932 & 28933/2003@@ j =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=@@ j Dated this, the 19TH day of July, 2005.@@ j ((HDR 0 [O.P.No.8571/2000 etc.] -: # :-
)) .HE 1 J U D G M E N T@@ jCCCCCCCCCCCCCCC These writ petitions relate to the selection and appointment to the post of Section Officers in the Sree Sankaracharya University of Sanskrit (hereinafter referred to as `the University'). In O.P.No.8571/2000, filed immediately after publication of the Notification inviting applications for the post, the petitioner challenges the notification itself as ultra vires the Sree Sankaracharya University of Sanskrit Act and the Statutes made thereunder. In O.P.No. 18462/2000, the petitioners challenge the notification inviting applications as well as the selection and appointment made pursuant to the same after participating in the selection process. In W.P(C) Nos.25777, 26486, 28932 and 28933 of 2003, the petitioners challenge the select list and in O.P.No.12352/2002, two of the selected candidates challenge the inter se seniority allotted to the selected candidates.
2. By a notification dated 4-12-1999 (Ext.P1 in O.P.No.8571/2000), the University invited applications from qualified Assistants/Section Officers working in the Universities of Kerala State to the post of Section Officers in the University. The qualifications stipulated in the notification were, (1) University Degree and (2) minimum of 10 years of service. The notification also prescribed an age limit of not below 35 years as on 1-1-1999. By a corrigendum dated 21-2-2000 (Ext.P3 in O.P.No.8571/2000), the minimum age limit was deleted. The petitioners in O.P.Nos. 8571 and 18462 of 2000 challenge these notifications as ultra vires the Sree Sankaracharya University of Sanskrit Act, 1994 (hereinafter referred to as `the Act') and the Sree Sankaracharya University of Sanskrit First Statutes, 1997 (hereinafter referred to as the `Statutes'), in so far as the qualifications stipulated in Exts. P1 and P3 are not those provided in the statutes. The petitioners in O.P.No.18462/2000 have further prayers to quash the appointment of the 20 persons selected (who are respondents 5 to 24 in the said original petition) and send them back to the Universities where their lien is retained as also to direct the University not to proceed with the direct recruitment to the post of Section Officers until qualification, experience and age are prescribed in the Statutes or Regulations. In O.P.No.8571/2000, the selection is challenged also on the ground that since the norms for selection were laid down by the Selection Committee which did not have the power to do it, the selection based on such norms is invalid. Allegations of mala fides are also raised particularly on the ground that the age limit was deleted by Ext.P3 only to enable some persons of the choice of the officers of the University to be selected.
3. In W.P(C) Nos. 25777, 26486, 28932 and 28933 of 2003, the petitioners challenge the selection on the ground that after laying down the norms for selection, the Selection Committee deviated from the norms in awarding marks to the candidates and in preparing the rank list of candidates for selection.
4. In O.P.No.12352/2002, two of the selected candidates want refixation of the inter se seniority among the selected candidates taking into account their prior service in other Universities and challenges Ext.P5 gradation list therein and further promotions based on the said gradation list.
5. The University has filed counter affidavits in all cases justifying the notifications inviting applications as well as the selection on the basis of decisions of the Syndicate and that of the Selection Committee. The selected candidates, namely, respondents 5 to 24 also filed counter affidavit supporting the selection and the rank list. Counter affidavits have been filed by the University and party respondents in O.P.No.12352/2002 also.
6. I have heard counsel appearing for the petitioners, the University and the selected candidates in detail. The University has also made available the files relating to the selection, pursuant to directions issued by this Court in that regard.
7. The main contention raised by the petitioners in O.P.Nos. 8571 and 18462 of 2000 is that Exts. P1 and P3 (in O.P.No.8571/2000) notifications inviting applications are not in consonance with the provisions contained in the Act and the Statutes. According to them, by virtue of Section 31 of the Act and Statute 7 of Chapter IV of the Statutes, the qualification, method of recruitment and scales of pay of the various posts of non-teaching staff in the University shall be such as in the Schedule to the Statutes. The Schedule contains the post of Section Officer as Sl. No. 9 as per which the post is to be filled up (i) by promotion from the cadre of Selection Grade Assistant based on seniority having a minimum of 10 years service in the Assistant's category or by deputation and (ii) in the absence of candidates under (i), by direct recruitment. Counsel submits that, although at the space provided for minimum qualification and age limit, there are only two dots, that should be read as ditto for the qualifications provided for the posts at Sl.Nos.6, 7 and 8. Counsel particularly points out that nowhere in the First Statutes is there a stipulation that candidates for direct recruitment should have 10 years experience and that such experience should have been that obtained as Assistants/Section Officers in Universities in Kerala, as stipulated in Ext.P1 notification and therefore the notification is ultra vires the Act and the Statutes. Counsel further alleges that going by the age limit prescribed for other posts, the age limit for Section Officer also should have been between 35 years and 45 years and therefore the deletion of age limit by Ext.P3 is bad in law. It is further pointed out that as per the Statutes, the age limit prescribed is 30 years and in Ext.P1 notification, the age limit stipulated is 35 years which is another instance of arbitrariness on the part of the University. Counsel would argue that the stipulation in Ext.P1 that applicants shall be Assistants/Section Officers working in Universities in Kerala is ultra vires the Statutes and arbitrary. Another contention is that the creation of the posts itself is without jurisdiction since under Section 14(2) of the Act, posts can be created only with prior approval of the Government which has not been obtained. Another contention raised by the petitioners is that the criteria for deciding the assessment of merit of the candidates was fixed by the Selection Committee, which is arbitrary and without jurisdiction. Counsel argue that since there are serious lacuna in the Statutes regarding the qualifications and age limit with regard to the post of Section Officer, the selection itself should be set aside and fresh selection should be directed to be held after incorporating in the Statutes specific qualifications, experience and age limit for the post.
8. Counsel for the petitioners in W.P(C) Nos.25777, 26486, 28932 and 28933 of 2003 submit that the award of marks to the petitioners in those writ petitions vis-a-vis the selected candidates is not in accordance with the norms laid down by the selection committee, besides the norms themselves being arbitrary. Counsel points out that in two cases, the petitioners were excluded on the ground that the petitioners have "LESS SERVICE LEFT" (LSL)." Arguing that besides there being no such stipulation for exclusion either in the Statutes or in the norms fixed by the Selection Committee, the Selection Committee has, in fact, selected persons having less service than the petitioner, counsel seeks to set aside the selection. Counsel further submits that for the additional qualification of B.Ed. Degree possessed by some of the petitioners, no marks were awarded although as per the norms fixed by the Selection Committee for each additional qualification, a candidate was entitled to 5 marks. Counsel also points out that petitioners were not given marks for experience as stipulated in the norms. A further contention is that for administrative ability, 20 marks have been fixed by the norms which has been freely awarded to selected candidates whereas no marks at all were granted to petitioners for the same. It is the argument of counsel that the fixation of 20 marks for `administrative ability' assessment of which cannot be based on any tangible material on record and is susceptible to arbitrariness, is itself unsustainable. For interview also, marks have been awarded arbitrarily to certain candidates while denying appropriate marks or any marks at all to others, thus vitiating the selection, counsel submits.
9. Counsel for the University as well as counsel for the selected candidates submitted that the Statutes do not prescribe any qualifications or age limit for the post of Section Officer. According to them, this is because for the post of Assistants Grade II, who get promoted to the feeder category for promotion to the post of Section Officer, namely, Selection Grade Assistant, the minimum qualification prescribed for direct recruitment is University Degree and age limit prescribed is 35 years. The direct recruitment was necessitated only because qualified Assistants were not available in the University. Counsel submitted that, further, the Syndicate had, in its meeting held on 30-11-1999, resolved to notify the posts of Section Officers in the University for direct recruitment from qualified Assistants/Section Officers having 10 years service in the Universities in Kerala and the minimum age limit of 35 years as on 1-1-1999 was also fixed. The stipulation of 10 years' experience in Universities in Kerala was prescribed because of the necessity to have persons having experience in University work. Based on Ext.R1(A) minutes of the meeting of the Syndicate on 5-1-2000, it was contended that the Syndicate in the said meeting resolved that since the recruitment is from among the persons in University service, minimum age limit need not be prescribed. Counsel submits that there is nothing ultra vires or arbitrary in those decisions. Counsel stoutly denied allegations of mala fides also.
10. In O.P.No.12352/2002, the petitioners contend that since service in other Universities in Kerala is a necessary qualification for the post, the inter se seniority among the selected candidates should have been fixed taking into account such service in other Universities. On the other hand, the University and party respondents would contend that since selection is on the basis of merit, seniority can only be on the basis of the rank assigned to the candidates in the rank list.
11. Since the decision in the other six writ petitions will have a decisive effect on the necessity itself to consider O.P.No.12352/2000, I shall first consider the said six writ petitions before considering O.P.No.12352/2000.
12. I have carefully gone through the pleadings and considered the arguments advanced by counsel on both sides. The following questions arise for consideration in the six writ petitions.
(a) Whether Exts. P1 and P3 notifications and the selection and appointments to the vacancies in the post of Section Officers in the University is bad for want of prior sanction from the Government as contemplated in the Act?
(b) Whether the qualifications prescribed in Exts.
P1 and P3 for the post of Section Officer in the service of the University is ultra vires the Act and Rules and arbitrary?
(c) Whether the selection to the post of Section Officer conducted pursuant to Exts.P1 and P3 based on the norms fixed by the Selection Committee is bad in law on the ground that the Selection Committee has no authority or jurisdiction to lay down such norms?
(d) Whether the norms fixed by the Selection Committee are arbitrary and unsustainable?
(e) Whether the Selection Committee had deviated from the norms laid down by it while awarding marks to the candidates?
(f) Whether the selection is vitiated by mala fides?
13. Before considering the rival contentions, I am constrained to observe that the Statutes themselves not only regarding the post of Section Officer, but also in respect of some other posts, are found wanting in certain respects. In respect of all posts for which direct recruitment is prescribed as a method of recruitment, except the post of Section Officer, minimum qualifications and age limit are prescribed. Except for the first two posts and post at Sl.No.28 in the Schedule to the Statutes, it is not stated as to whether the age limit (whatever prescribed) is minimum age limit or maximum age limit. Further, in the column regarding age limit for posts at Sl.Nos. 1 and 2, after prescribing the age limit, for Sl.Nos.3, 4, 5 and 6 in that column, only two dots are printed, which would indicate that no age limit is prescribed for the posts. In respect of Sl.Nos. 3, 4 and 5, this is understandable because the method of recruitment to these posts are either by promotion or by deputation. For Sl.No.6, two methods of recruitment are prescribed namely, (i) by selection from among the University employees on deputation and (ii) in case no suitable person is available from among the employees, by advertisement and selection. But, going by the two dots in the column relating to age limit, it should be presumed that no age limit is prescribed, which, to say the least, is ununderstandable. But, curiously, for the next two posts at Sl.Nos.7 and 8, against the column for age limit, the word `do' is shown. I am at a loss to comprehend the meaning, since what appear in the same column for Sl.No.6 are two dots. I cannot but state that the drafting of the provisions is callous and ambiguous. I am of opinion that when direct recruitment is prescribed as a method of recruitment to a post, it is necessary to prescribe the minimum educational qualifications, experience and age limit also. Therefore, in order to obviate any confusion or ambiguity as also arbitrariness which may creep into the selection process by its absence, it is necessary that these essential aspects should necessarily be included in the Schedule to the Statutes.
14. I shall first consider the contention of the petitioner in O.P.No.18462/2000 that the creation of the posts of Section Officers to which selection has been made pursuant to Ext.P1 is without jurisdiction in so far as the same was done without prior sanction of the Government as required under Sections 7(xxi) and 14(2)(h) of the Act. Section 7 lays down the powers and functions of the University, sub-section (xxi) of which relates to creation of administrative and other pots. It reads thus:
.SP 1 "7. Powers and functions of the University:- The@@ i University shall have the following powers and functions, namely:-
xx xx xx xx xx xx (XXI) To create administrative and other posts@@ i with the prior approval of Government and to appoint persons to such posts."
xx xx xx .SP 2 Section 14 details the powers and functions of the Syndicate. Sub-section (2) (d) of the said Section reads thus:
.SP 1 "(2) Subject to the provisions of this Act and the@@ i Statutes, the Syndicate shall have the following powers namely:-
xx xx xx
(d) to create teaching and non-teaching posts in@@ i the University with the prior approval of the Government.
xx xx xx"
.SP 2 Counsel for the petitioners in the abovesaid original petition contends that since the 20 posts of Section Officers the selection for which is under challenge was created without obtaining prior approval of the Government, the selection to the said posts and its filling up are also without jurisdiction and beyond the powers of the University. In the counter affidavit of the University dated 16-9-2003 filed in O.P. No. 18462/2000, the University seeks to justify the creation of the posts on the basis of Exts. R2(A), R2(B) and R2(C). It is stated in the counter affidavit that, as is evident from the fact that the Government had accepted the reports furnished by the University on the basis of which grant-in-aid to the University was sanctioned, the posts of Section Officer had been already approved by the Government. As proof of the same, they cite Ext.R2(A) which is a letter dated 23-11-1999 from the Government to the University which reads as follows:
.SP 1 "I am directed to invite your attention to the@@ i references cited and to inform you that the report furnished by you clearly shows that the grant-in-aid to the University includes the expenditure of the posts in question in each year and ipso facto the same is tancit approval of Govt. Therefore, there does not arise the question of ex-post facto sanction as proposed earlier. Necessary directions have been issued to the Advocate General, Kerala to defend the cases accordingly."
.SP 2 This is sought to be buttressed with the help of Exts.R2(B) and R2(C) which give the details of fixation of Non-plan grants for the year 2003-2004 and the details of staff strength in the administration department to which the grants relate.
15. I must straightaway notice that there is no correlation between Ext.R2(A) and R2(B). Ext.R2(A) is dated 23-11-1999 whereas Ext.R2(B) is dated 4-12-2002 and Ext.R2(C) is stated to be the details accompanying Ext.R2(B). It is totally incomprehensible as to how a proposal for fixation of Non-plan grants for the year 2003-2004 can validate creation and filling up of posts done during 1999 and 2000. This is further compounded by the fact that Ext.R2(A) dated 23-11-1999 cannot relate to Exts. R2(B) and R2(C) issued in 2002. In fact, even assuming that these three documents can be correlated, Exts. R2(A), R2(B) and R2(C) do not prove that the prior sanction was obtained for creation of the 20 posts appointment to which is under challenge. On the other hand, Ext.R2(A) would give an inference that no prior sanction for creation of posts was sought at all and it refers to only tacit approval. Even assuming that they do prove such approval, Ext.R2(C) only mentions 10 posts of Section Officer. The other 10 posts mentioned there are higher post of Section Officer (Higher Grade), which is a post to which Section Officers can be promoted on putting in sufficient number of years of service as Section Officer. This further prompts me to again observe that the University is not conducting its affairs in strict compliance with the provisions of the Act. In the circumstances, I am inclined to hold that the contention of the petitioner that no prior approval of the Government was obtained for creation of the 20 posts, is not without merit.
16. Now, let me come to the next question. In order to correctly understand the contentions of the parties in respect of the prescriptions of qualifications required for direct recruitment to the post of Section Officer, it will be necessary to look at all the first nine entries in the Schedule to the Statutes which prescribes the qualifications, age limit, method of recruitment etc., for Non-Teaching Service of the University, which reads thus:
.SP 1 .JN
---------------------------------------------------- Sl. Category/ Scale Minimum Age Method of No. Post. of pay qulfn. limit recruitm-
ent.
----------------------------------------------------
1. Registrar 4500- First or 45 & Recruit-
7300 Second class above ment on post-graduate the basis degree with of merit 10 years by invit-
teaching ing appl-
experience ications
at College/ by adver-
University tisement
level and in the
about 5 years press or
of administra- by depu-
tive experience tation.
in a responsible
post including
management of
staff in a
University or
College.
2. Finance 4500- Chartered, Betw- By direct
Officer 7300 Accountant een 35 recruit-
(ACA/FCA/ICWA) & 45 ment or
OR First or years by depu-
Second Class tation
Master's from the
degree with State/
experience in Central
Financial & Govt./
Accounts Other
matters for services.
not less than
5 years in a
supervisory
capacity.
3. Joint 3900-
Registrar 5075 .. .. By promo-
tion from
the cadre
of Deputy
Registrar
having two
years
experience
in the
cadre of
Deputy
Registrar
on the
basis of
seniority
and merit
or by
deputation
4. Deputy 3000-
Registrar 5000 .. .. (i) By
promotion
from the
cadre of
Assistant
Registrar
having
three
years
service in
the cadre
of Assi-
stant
Registrar
on the
basis of
seniority
and merit.
(ii) Depu-
tation
from
State/
Central
Govt.
Depart-
ments/
Univer-
sities
in the
same
grade/post
5.Assistant 2500-
Registrar 4000 .. .. (i) By
promotion
from the
cadre of
Section
Officer
with a
minimum
service of
five years
in the
cadre of
Section
Officer
based on
the senio-
rity and
merit.
(ii)Depu-
tation from
State/
Central
Govt.
Depts./
Univer-
sities in
the same
grade/post
6. P.S. to 2500- University (i) By Vice 4000 Degree. Expe- selection Chancellor rience as from Section Officer among in the Univer- University sity or other employees experience in a or by Supervisory deputa-
capacity. For tion.
purpose, S.O.
should have (ii) In
completed three case no
years service suitable
in the cadre of person is
S.O. available
from
among the
employees,
by adver-
tisement
and
selection
7. P.S. to 2500-
Principal 4000 do. do. do.
Dean of
Studies
8. P.S. to 2500-
Registrar 4000 do. do do.
9. Section 2000- (i) By
Officer 3200 .. .. promotion
from the
cadre of
Selection
Grade
Assistant
based on
seniority.
Should
have put
in a mini-
mum of 10
years
service in
the
Assist-
ant's
category
or by
Deputation
(ii) In
the
absence of
the above,
by direct
recruit-
ment."
.SP 2
.JY
From the above, it can be seen that the method of recruitment to the post of Section Officer is (i) by promotion from the cadre of Selection Grade Assistant based on seniority who have put in a minimum of 10 years' service in the Assistant's category or by deputation and (ii) in the absence of the above, by direct recruitment. Since persons qualified for promotion as per the first method of recruitment prescribed are not available, the University has resorted to direct recruitment. Then the question arises as to what are the qualifications required for direct recruitment to the post. Obviously, no qualifications are prescribed for direct recruitment in the statutes. Counsel for the petitioners in the two original petitions challenging the notifications would contend that since no qualifications are prescribed, no recruitment can also be made until the qualifications are prescribed by amending the Statutes. Counsel for the University submits that since executive powers of the University is vested in the Syndicate as per Section 14 (1) of the Act, which is also the authority to make statutes, the Syndicate has the powers to prescribe qualifications, when the Statutes are silent about it. Counsel for the University made available to me a copy of the minutes of the 34th meeting of the Syndicate held on 30-11-1999, item No.9 of which relates to appointment to non-teaching posts including that of Section Officers which reads thus:
.SP 1 "Appoitment to non-teaching posts - filling up of@@ i higher posts-reg.
Considered the proposals for the@@ i appointments of middle level officers in the University on a regular basis. The provisions contained in the Statutes for direct recruitment and the recommendations of the Standing Committee on Staff and Finance were also considered.
Resolved to notify the posts of Section@@ i Officers in the University for direct recruitment from qualified Assistants/Section Officers having 10 years service in the Universities of Kerala.
Further resolved to fix Rs.200/- as application fee for the same. The selection following the rules of reservation, will be on the basis of an interview by the Selection Committee as per rules. The minimum age limit will be 35 years as on 1-1-1999."
.SP 2 The University has also produced along with their counter affidavit dated 16-9-2003 in O.P.No.8571/2000 Ext.R1(A) minutes of the 35th meeting of the Syndicate held on 5-1-2000, additional item No.3 of which reads thus:
.SP 1 Additional Item No.3.@@ iCCCCCCCCCCCCCCCCCCCCC Notification No.Ad/NTN/00/99/SSUS dated 4-12-1999@@ i for selection to the posts of Section Officers - Modifications - Reg.
Considered the Government Circular@@ i No.18535/Adv.C3/99/P&ARD dated 17-12-'99 from the Chief Secretary regarding appointments in the light of the Supreme Court judgment dated 13-12-99 in I.As.No.35-36 in W.P(C) No.930/1990 with W.P(C) No.699/95 and 727/95, IA 2/99, IAs.8 and 9 in WP(C) No. 699/95 (Indira Sayiney v. Union of India and others) regarding selection and appointment of members of the backward classes in the Public Services. Also considered the fact that the notification for filling up the post of Section Officers as per decision of the Syndicate on 30-11-1999 (item No.9) does not contain express provision as to observance of the rules of reservation.
Resolved to notify the posts incorporating@@ i the provisions as to observance of reservation as per rules in force. It was also resolved to notify the post of University Librarian as per U.G.C. norms. Further resolved that since the recruitment is from among the persons in University service, minimum age limit need not be prescribed."
.SP 2 On the basis of these decisions of the Syndicate, counsel for the University sought to sustain Exts. P1 and P3. Counsel for the University as well as the selected candidate submitted that failure to prescribe separate qualifications for the post of Section Officer is not material since for the post of Assistants Grade II which is the basic post from which persons come up in the hierarchy by promotion to the feeder category for promotion to the post of Section Officer, namely, Selection Grade Assistant, University Degree is the minimum qualification and since for promotion to the post, 10 years' service is the minimum prescribed. It is on this basis that the Syndicate which itself is the authority empowered to frame statutes, passed resolutions fixing the qualifications and, therefore, Exts. P1 and P3 notifications issued on the basis of the decisions of the Syndicate are perfectly valid and proper.
17. I find substance in this contention of counsel for the University and the selected candidates. Although it would have been ideal to include minimum qualifications in item No.9 of the Schedule itself, now that the rules framed are unfortunately silent, there is nothing ultra vires in the Syndicate taking administrative decisions to fill up the gap. It is also settled law that when rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rule can be supplemented by executive instructions.
(See Sant Ram v. State of Rajastan, AIR 1967 SC@@ CCCCCCCCCCCCCCCCCCC 1970, Comptroller and Auditor General of India v.@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC Mohan, AIR 1991 SC 2288 and Krushan Chandra Sahu &@@ CCCCCC CCCCCCCCCCCCCCCCCCCCCC others v. State of Orissa & Others, JT 1995 (7)SC@@ CCCCCC CCCCCCCCCCCCCCCCCCCCCCCCC
137). Although counsel for the petitioners would submit that these decisions can apply only to rules covered by Article 209 of the Constitution of India, I am of opinion that the said principle is equally applicable to other statutory rules as well. The decision cannot also be stated to be arbitrary. When, for promotion, only Selection Grade Assistants who have put in a minimum of 10 years' service is essential and only persons having the minimum qualification of University Degree alone can be promoted to the post of Selection Grade Assistants, fixation of University Degree and 10 years' service in the Assistants/Section Officers' category as qualification for recruitment as per Ext.P1 cannot be stated to be ultra vires or unconstitutional.
18. However, the petitioners have got a contention that the insistence that the 10 years' service prescribed shall be in Universities of Kerala is ultra vires the Act and Statutes and also arbitrary and discriminatory. I think that the petitioners are well founded in that contention. Admittedly, the Statutes do not contain any such stipulation. The posts of Deputy Registrar and Assistant Registrar are promotion posts in the hierarchy to which Section Officers can aspire for promotion. The alternate method of recruitment to those posts is "deputation from State/Central Government Departments/Universities in the same grade/post". There can be no logic in stipulating that for Section Officers alone, the required service shall be of Universities in Kerala, whereas for the higher posts in the hierarchy, State and Central Government employees in the same grade/post can also be appointed by deputation. I do not see any rationale in such differentiation.
19. Further, when the minimum qualification prescribed for Assistant Grade II can be adopted for Section Officer for direct recruitment, it is incomprehensible as to why the age limit of 35 years prescribed for the said post should not also be adopted. The reasoning given in Ext.R1(A) in O.P.No. 8571/2000 (which is the basis for issuing Ext.P3) that since recruitment is from among persons in University Service, minimum age limit need not be prescribed cannot be accepted on its face value. This is all the more so since for the post of Security Officer at Sl.No.20 of the schedule for which the method of recruitment is either by direct recruitment or by deputation from Police Department, the Statutes prescribe age limit of 50 years. So also, for the post of University Engineer at Sl.No.28, for which the method of recruitment is by deputation from State/Central Government or other department also minimum and maximum age limits are prescribed. Another similar post is that of Assistant Engineer at Sl.No.30 for which also age limit is prescribed. That would mean that for almost all other posts for which direct recruitment is prescribed, the Statute stipulates age limit except for Section Officer.
20. This question especially assumes significance in view of the decision of the Selection Committee to exclude 7 candidates from selection on the ground `less service left'. It shows that even the Selection Committee thought that some age limit was necessary to the prescribed, even though, in those cases, what is sought to be prescribed is the upper age limit.
21. For all these reasons, I hold that Ext. P1 in so far as it stipulates that the 10 years' service shall be in Universities in Kerala and Ext.P3 in so far as it deletes the age limit prescribed by Ext.P1 are ultra vires the Act and Statutes and also arbitrary and unconstitutional.
22. The petitioners in the original petitions further attacks the selection on the ground that the norms for selection was laid down by the Selection Committee, which, by virtue of the decisions of the Supreme Court, is without authority and jurisdiction. The University has made available to me the files relating to the proceedings of the Selection Committee. The Selection Committee consisted of (1) the Vice Chancellor (Chairman), (2) Convenor of the Staff Committee and (3) the Registrar (Member-Secretary), which appears to be in order and in consonance with Statute 8 of Chapter IV of the Statutes, contrary to the contention of counsel for the petitioner in O.P.No.8571/2000. The file contains the minutes of the meeting of the Committee held on 14-3-2000. It is seen that in that meeting, the Selection Committee had adopted the norms for selection to the post of Section Officer.
23. The Committee decided that the candidates' eligibility for appointment will be determined on the basis of marks obtained under five heads namely:
(a) One mark each for every completed year of service or part thereof in the cadre of Assistant, subject to a maximum of 20 marks.
(b) Three marks each for every completed year of service or part thereof in the cadre of Section Officer subject to a maximum of 20 marks.
(c) Twenty marks for administrative ability/meritorious service.
(d) Twenty marks for additional academic qualification - five marks for each, subject to a maximum of 20 marks.
(e) Twenty marks for candidates' performance and overall suitability for the supervisory post.
24. Two aspects have to be noted straightaway in this regard. Firstly that these norms were fixed after receipt of applications and fixing the date of interview, i.e. after the Committee could know the qualifications of each candidate. Secondly, two of these norms, namely (c) and (d) have no relevance to the requirements either under the statutes or under Ext.P1. This itself throws the norms open for successful challenge on the ground of arbitrariness, favouritism etc.
25. Neither the Act nor the Statute authorises the Selection Committee to prescribe any norms for selection. The norms for selection should necessarily conform to the qualifications and experience prescribed for the post. No additional qualifications are prescribed as desirable in Ext.P1. Ext.P1 does not also stipulate administrative ability or meritorious service as an added qualification or requirement for the post. Further, administrative ability and meritorious service are two requirements which are tainted with the vice of susceptibility to arbitrariness and nepotism or undue preference. In fact, from the file, I note that only 12 persons have been given marks under this head, out of the 88 candidates to whom marks have been awarded under various heads. Out of whom, 10 have been selected candidates. In fact, the tabulation sheet of marks awarded shows that three persons who scored 20 marks, one person who scored 15 marks and one person who scored 12 marks for experience as Section Officer, were given no marks at all for administrative ability whereas at least two persons who had no marks for experience as Section Officer was awarded marks under the head of administrative ability. The pattern of award of marks thus does not indicate any criterion for award of marks under this head, which also would lend credence to the argument that award of marks under this head is susceptible to arbitrariness and favouritism.
26. Counsel for the petitioner in O.P.No.8571/2000 brings to my attention the decision of the Supreme Court of India in Krushan Chandra Sahu@@ CCCCCCCCCCCCCCCCCCCC & others v. State of Orissa & others, reported in JT@@ CCCCCCCC CCCCCCCCCCCCCCCCCCCCCCCC 1995 (7) SC 137 in support of his contention that Selection Committee has no jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Statutes. It will be advantageous to quote paragraphs 35 to 38 of the decision in this regard:
.SP 1 "35. The members of the Selection Board or for@@ i that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Article
309. It is basically the function of the Rule making authority to provide the basis for selection. This Court in State of Andhra Pradesh and another v. V.Sadanandam and others (JT 1989 (Supp) SC 232+ AIR 1989 SC 2060) observed as under:
"We are now only left with the reasoning of the@@ i Tribunal that there is no justification for the continuance of the old Rule and for personnel belonging to either zones being transferred on promotion to offices in other zones. In drawing such conclusion, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC category from which the recruitment to a service@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC should be made are all matters which are@@ CCCCCCCCCCCCCCCCCC exclusively with the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode@@ CCCCCCCCCCCCCCCCCCCC of recruitment or the categories from which the@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC recruitment should be made as they are matters of@@ CCCCCCCCCCCCCCCCCCCCCCCCCCC policy decision falling exclusively within the@@ CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC purview of the executive."@@ CCCCCCCCCCCCCCCCCCCCCCCCC (Emphasis supplied)
36. The Selection Committee does not even have@@ i the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Ramachandra Iyer & Ors. v. Union of India & Ors. (1984 (2) SCR 200), it was observed:
"By necessary inference, there was no such power@@ i in the ASRB to add to the required qualifications. If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm."
37. Similarly, in Umesh Chandra Shukla etc. v.@@ i Union of India & Ors. (1985 Suppl (2) SCR 367), it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Sh.Durgacharan Misra v. State of Orissa & Ors. (JT 1987 (3) SC 459=1987 (2) UJSC 657) and the limitations of the Selection Committee were pointed out that it has no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva-voce test.
38. It may be pointed out that rule making@@ i function under Article 309 is legislative and not executive as was laid down by this Court in B.S.Yadev Ors. v. State of Haryana & Ors. (AIR 1981 SC 561). For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection."
.SP 2
27. As such, law on the subject is quite clear to the effect that unless authorised by the Rules, Selection Committee has no jurisdiction or authority to lay down the norms for selection. Here, the University has no case that the Act or Statutes authorise the Selection Committee to lay down the norms. Therefore, I do not have to delve too deep to hold that the selection committee did not have the jurisdiction to lay down the norms for the selection and therefore the selection made on the basis of norms laid down by the Selection Committee is totally without jurisdiction and unsustainable.
28. Even assuming that the norms prescribed by the Selection Committee are valid, I am constrained to note that as selection progressed, the Selection Committee pressed into service further norms to deny marks to certain candidates under certain heads, to exclude some candidates from selection altogether and to select some persons. After prescribing 5 marks for each additional qualification, it is seen from the counter affidavit in W.P(C) No. 28932/2003 that Selection Committee had not awarded marks for B.Ed. Degree qualification to those candidates who possessed such additional qualification. The counter affidavit does not offer any explanation for such exclusion also. Further, 7 candidates were excluded on the ground that they have "less service left"
meaning thereby that they have exceeded a particular age. Without prescribing any upper age limit and after deleting the age limit prescribed in Ext.P1, by Ext.P3, the Selection Committee could not have validly excluded certain candidates on the ground that they have exceeded a particular age. Even for such exclusion, no uniform criteria is seen followed. For example, the petitioner in W.P(C) No.26486/3003 was excluded on the ground that he has "less service left." The petitioner stated in the writ petition that he had 8 years of service left and that the respondent no.5 who was selected had less service left than the petitioner. Both these averments are not controverted in the counter affidavit. The only explanation offered is that "it is also pertinent to note that out of 20 Section Officers, there were only 3 females including the 5th respondent and hence, it was only just and proper to select her though she also had less number of years of service left."
Thereby, the University tacitly admits that they had also taken into account a new criteria of preferring females, although such a preference is not stipulated in the Act, Statutes, Ext.P1 notification or even in the norms laid down by the Selection Committee. These averments and explanation are seen repeated in W.P(C) No.28933/2003 also. This would also amount to discrimination on the basis of sex which is prohibited by Article 16 of the Constitution of India.
29. Counsel for the petitioners in W.P(C) Nos. 25777, 26486, 28932 and 28933 of 2003 also points out other irregularities in the award of marks alleging that there was no uniformity in awarding marks even as per the norms fixed and they have taken me to each instances of such aberrations. Although the same are worthy of consideration, I am not going into each such contention separately since even otherwise, for the reasons mentioned above, the selection process is vitiated.
30. While at it, I may also advert to a distressing aspect relating to the appointment of selected candidates pointed out by counsel for the petitioner in O.P.No.18462/2000. Ext.P5 is the appointment order issued to the 9th respondent. Ext.P5 appointment order is dated 10-4-2000. But, the same states that he has joined duty on 7-4-2000, which discloses an undue haste in allowing the selected candidates to join duty even before formal orders of appointment were issued.
31. Therefore, I am constrained to hold that the Selection Committee has even deviated from the norms laid down by themselves while making the selection for which reason also the selection and consequent appointment of selected candidates are illegal and liable to be quashed.
32. The petitioners have raised allegations of mala fides on the premise that some of the selected candidates were already working on deputation in the University in key posts by virtue of which they had decisive influence on the members of the Selection Committee. In fact, the fact that the Selection Committee had deviated from the norms laid down by themselves and the discrepancies in the award of marks adverted to by me hereinbefore would lend credence to the allegation. However, I am not probing deep into such contentions since I have already held that even otherwise, the selection is vitiated.
33. Therefore, I quash Exts. P1 and P3 notifications in O.P.No.8571/2000 which are Exts. P2 and P3 in O.P.No.18462/2000, the rank list prepared pursuant thereto as also the selection and appointment of additional respondents 3 to 15 in O.P.No.8571/2000 who are respondents 5 to 24 in O.P.No.18462/2000, as Section Officers in the Sree Sankaracharya University of Sanskrit, pursuant thereto.
34. I note that this University has a history of making appointments inconsistent with the Act. In fact, at the inception of the University itself, this Court had annulled appointments made by it, as evidenced by the decision of Sree Sankara University@@ CCCCCCCCCCCCCCCCCCCCCCC of Sanskrit v. State, reported in 1996(2) KLT 378@@ CCCCCCCCCCC CCCCC which was confirmed by the Hon'ble Supreme Court of India. It is distressing to note that there is not much improvement in its conduct even afterwards. It is sad that the University in the name of the greatest scholar the World has ever produced, gives scant respect to law in spite of adverse decisions by courts. As I have observed at the beginning, even the First Statutes framed by it relating to qualifications, age limit etc., of non-teaching staff leaves much to be desired. Therefore, the University would do well to make suitable amendments to the First Statutes so as to enable it to make fresh selections without any legal flaws as noticed in this judgment.
35. Accordingly, O.P.Nos. 8571/2000 and 18462/2000 and W.P(C) Nos. 25777, 26486, 28932 and 28933 of 2003 are allowed as above and the impugned selections are set aside. All consequences will follow.
36. O.P.No.12352/2002 relates to inter se dispute regarding seniority among persons selected and appointed as Section Officers pursuant to Exts. P1 and P3 in O.P.No.8571/2000. Since the selection itself has been quashed, it is not necessary for me to deal with the contentions raised in the same. Therefore, I close the said original petition.
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=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O.P.Nos. 8571 & 18462/2000, 12352/2002, W.P(C)Nos.25777, 26486, 28932 & 28933/2003@@ j =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= J U D G M E N T@@ CCCCCCCCCCCCCCC 19th July, 2005.