Kerala High Court
Dr.C.S.Suchit vs Unviersity Of Kerala on 2 February, 2010
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15330 of 2005(Y)
1. DR.C.S.SUCHIT, SREEMANGALAM,
... Petitioner
Vs
1. UNVIERSITY OF KERALA, REPRESENTED BY ITS
... Respondent
2. THE VICE CHANCELLOOR, UNIVERSITY OF
3. SMT.K.P.JAYA, LECTURER IN HINDI,
4. THE SELECTION COMMITTEE FOR THE
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent :SC,KERALA UTY.
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :02/02/2010
O R D E R
S. SIRI JAGAN, J.
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W.P.(C)No. 15330 of 2005
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Dated this the 2nd day of February, 2010
J U D G M E N T
The petitioner is challenging the selection and appointment of the 3rd respondent as Lecturer in Hindi in a vacancy reserved for Ezhava community in the University of Kerala. Ext.P1 notification dated 03.02.2003 was published inviting applications for selection to the said post. In Ext.P1 notification the last date fixed for submitting applications was 10.04.2003. By University order No.Ad.H.1/3020/99 dated 06.09.2000 the University had fixed norms for selection of teaching staff in the University as approved by the Syndicate at its meeting held on 26.08.2000. Ext.P5 is the norms so prescribed which stipulated award of marks for various components of the qualifications and additional qualifications which read as follows:
W.P.(C)No. 15330 of 2005 -2-
APPENDIX TO UO NO.Ad.H.1/3020/99 DATED 6.9.2000 NORMS FOR SELECTION OF TEACHNG STAFF IN THE UNIVERSITY (APPROVD BY THE SYNDICTE AT ITS MEETING HELD ON 26.08.2000) ............
Lecturer Total marks:100
Academic qualification
(percentage of marks secured Maximum 50
at the P.G. examination reduced to 50)
Additional Qualifications - NET - 5,
MPhil -5, MPhil + NET-7, Ph.D-10,
subject to a maximum of 10 for
candidates having NIT M.Phil and Ph.D : 10
Publications in approved journals
(2 marks for each paper - subject to a : 6
maximum of 6 marks)
Teaching experience (At the rate of
1 marks per year subject to a maximum
of 3 marks) at the University/College level : 3
Additional marks for consistent
academic excellence : 3
Participation and presentation of papers in : 3
National/International conference
Performance in the interview (while awarding : 25
marks adequate consideration should be given to co-curricular activities also)
2. An interview was conducted more than two years after the last date fixed for submitting applications, on 26.04.2005. The selection committee interviewed the candidates and awarded marks. Ext.P7 is the tabulation W.P.(C)No. 15330 of 2005 -3- sheet awarding marks to three of the candidates included in the rank list prepared. In the same, marks were awarded for various components as per Ext.P5 to all three candidates. Petitioner's grievance relates to award of marks for three components namely additional qualifications, publications in approved journals and participation and presentation of papers in National/International conference. According to the petitioner for all components prescribed in Ext.P5 norms, marks could have been awarded only for those which the candidates possessed as on the last date for submitting applications and not for those acquired subsequent to the last date for submitting applications. Petitioner's contention is that the 3rd respondent acquired the qualifications of Ph.D subsequent to the last date of submitting applications. The petitioner also obtained Ext.P9 information by resorting to proceedings under the Right to Information Act, 2005, regarding date of the publications of the 3rd respondent and the dates of seminars she attended, all of which were W.P.(C)No. 15330 of 2005 -4- subsequent to the last date for submitting applications namely 10.04.2003. The petitioner therefore contends that the 3rd respondent could not have been awarded marks for the three components in so far as the same were acquired by the 3rd respondent subsequent to the last date prescribed for submitting applications. According to the petitioner the question as to whether qualifications and additional qualifications should be considered as on which date is settled by a decision of the Supreme Court in Dipitimayee Parida v. State of Orissa and Ors. (2008) 10 SCC 687, wherein the Supreme Court has held that qualifications or extra qualifications laid down for a recruitment should ordinarily be considered on the last date of filing the applications. Therefore according to the petitioner, if the marks awarded to the 3rd respondent for the three components of qualifications acquired by the 3rd respondent after the last date for submitting applications, are excluded, the petitioner would be the first rank holder and the petitioner alone is entitled to be appointed to the post. The W.P.(C)No. 15330 of 2005 -5- counsel for the petitioner also relies on a decision of a Division Bench of this court in Asha P. v. State of Kerala 2009 (4) KHC 721 (D.B.), wherein the decision of the Supreme Court in Dipitimayee's case was followed for the proposition that question of consideration of qualification or extra qualification should be with reference to the last date for submitting applications.
3. Respondents 2 & 3 have filed separate counter affidavits disputing the contentions of the petitioner. The 3rd respondent would contend that only the essential qualifications stipulated in the notification inviting applications need be as on the last date for submitting applications. As far as extra qualifications are concerned the same need be acquired only as on the date of selection. The counsel for the 3rd respondent relies on the following decisions: (1996) 6 SCC 282 (Secy. (Health) Department of Health and F.W. And another v. Dr. Anita Puri and Others, (1997) 4 SCC 18 Ashok Kumar Sharma And Others v. Chander Shekhar And Another W.P.(C)No. 15330 of 2005 -6- (1999) 2 SCC 193 Utkal University v. Dr. Nrusingha Charan Sarangi And Others, (2009) 5 SCC 1 Andhra Pradesh Public Service Commission v. Baloji Badhavath And Others. The counsel for the 3rd respondent submits that the decision in Dipitimayee's case can be easily distinguished, in so far as in that case additional qualifications were also stipulated in the notification inviting the applications itself and therefore the same cannot be relied upon for the proposition that the additional qualification should be as on the last date for submitting applications.
4. I have considered the rival contentions in detail. At the out set I must note that the facts as stated by the petitioner are not disputed by the 3rd respondent. The 3rd respondent acquired the additional qualifications only after the last date for submitting applications, as is evident from Ext.P9. Therefore the only question to be decided in this case is as to whether the qualifications in respect of the three components named above are also to be as on the last W.P.(C)No. 15330 of 2005 -7- date prescribed for submitting applications. In Dipitimayee's case (supra) the Single Judge of the High Court that High Court from whose decision the appeal before the Supreme Court arose, held thus, as extracted in paragraph 8 of the Supreme Court judgment:
"8. Contending that the Selection Committee had no jurisdiction to award 3 marks to the applicant, the respondent filed a writ petition before the High Court of Orissa. The said writ petition was allowed by a learned Single Judge of the said Court by a judgment and order dated 30-3-2005, opining:
"A candidate who acquired the prescribed qualifications or extra qualification subsequent to such prescribed date cannot be considered at all. Admittedly, on the date of publication of the notification and the date fixed for submission of application the petitioner was not married though she got married subsequently. The authorities awarded three marks in her favour. In view of the ratio of the Supreme Court judgment in Ashok Kumar Sharma, the petitioner is not entitled to the said three marks and only the eligibility and the qualifications possessed by Opposite Party 5 on the date prescribed in the notification is to be taken into consideration. In view of the clear position of law, I find that the authorities acted illegally and with material irregularity in awarding extra three marks to Opposite Party 5. If the aforesaid three marks were deducted from 58% then Opposite Party 5 would secure 55% marks whereas the petitioner would secure 57.8% marks. This aspect was not kept in mind by the Collector. Therefore, I have no hesitation to set aside the order passed by the Collector and direct the petitioner be engaged as an Anganwadi worker in the centre in question, if there is no other impediment."
As indicated hereinbefore, on an intra-court appeal preferred thereagainst by the appellant, the Division Bench passed the impugned judgment dismissing the same" W.P.(C)No. 15330 of 2005 -8-
After quoting the same with approval, the Supreme Court laid down the law thus, in paragraph 16 of the judgment:
"16. Even otherwise, ordinarily the qualification or extra qualification laid down for the recruitment should be considered as on the last date for filing of the application. This has been so held in Rekha Chaturvedi v. University of Rajasthan stating: (SCC p.175, para 10) "10. The contention that the required qualifications of the candidates should be examined with reference to the date of selection and not with reference to the last date for making applications has only to be stated to be rejected. The date of selection is invariably uncertain. In the absence of knowledge of such date the candidates who apply for the posts would be unable to state whether they are qualified for the posts in question or not, if they are yet to acquire the qualifications. Unless the advertisement mentions a fixed date with reference to which the qualifications are to be judged, whether the said date is of selection or otherwise, it would not be possible for the candidates who do not possess the requisite qualifications in praesenti even to make applications for the posts. The uncertainty of the date may also lead to a contrary consequence viz. even those candidates who do not have the qualifications in praesenti and are likely to acquire them at an uncertain future date, may apply for the posts thus swelling the number of applications. But a still worse consequence may follow, in that it may leave open a scope for malpractice. The date of selection may be so fixed or manipulated as to entertain some applicants and reject others, arbitrarily. Hence, in the absence of a fixed date indicated in the advertisement/notification inviting applications with reference to which the requisite qualifications should be judged, the only certain date for the scrutiny of the qualifications will be the last date for making the applications. We have, therefore, no hesitation in holding that when the Selection Committee in the present case, as argued by Shri. Manoj Swarup, took into consideration the requisite qualifications as on the date of selection rather than on the last date of preferring applications, it acted with patent illegality, and on this ground itself the selections in question are liable to be quashed."
In the said decision, the norms for selection prescribed W.P.(C)No. 15330 of 2005 -9- additional three marks, if a person is married. The candidate who was selected was not married as on the last date of submitting applications. She married subsequently. Despite the same, she was given three marks which was under challenge in that case. The Supreme Court affirmed the view of the High Court that the same could not have been validly done. I am not satisfied with the contention of the counsel for the 3rd respondent that in Dipitimayee's case (supra) additional marks were also stipulated in the notification inviting applications itself. The counsel for the 3rd respondent relies on the paragraphs 3 & 4 of the judgment which reads thus:
"3. The State of Orissa in terms of the Integrated Child Development Scheme of the Central Government issued an advertisement for appointment of Anganwadi workers. A check- list laying down guidelines for selection of Anganwadi Workers was also issued. The constitution of the Committee as also the marks to be allotted on different items wee specified therein.
4. A Circular Letter dated 7-10-1998 was furthermore issued by the WECD Department of the Government of Orissa for selection of Anganwadi workers laying down minimum educational qualifications and as also other criteria therefor; the relevant clause whereof reads as under: W.P.(C)No. 15330 of 2005 -10-
5. I am not satisfied that from the same it can be concluded that the additional qualifications were also stipulated in the notification inviting applications itself. The same does not indicate that the guidelines were part of the notification itself. Even otherwise, the Supreme Court has categorically held that ordinarily the qualification or extra qualification laid down for the recruitment should be considered as on the last date for filing of the application. I am of the opinion that said law is laid down on very sound principles of law as is evident from the decision itself. From the decisions quoted from Rekha Chaturvedi vs. University of Rajasthan therein, it is clear that one of the reasons for laying down that law was to avoid the scope for malpractice. The Supreme Court held that unless there is a specific date for the qualifications to be considered for selection the date of selection may be so fixed or manipulated as to entertain some applicants and reject others. Exactly that situation directly arose in this case. As is clear from Ext.P9 all the papers published by the 3rd W.P.(C)No. 15330 of 2005 -11- respondent were subsequent to the last date fixed for submitting applications. She attended seminars only a few months prior to the date of selection and more than = years after the last date for submitting applications. In this connection it also may be noted that there was two years' difference between the last date fixed for submitting applications and the date of interview. I am not suggesting that there was any malpractice as such in this case. I am only noting that unless a specific date is stipulated for considering the qualifications acquired by the candidates, there is likelihood of malpractice being committed. When law is laid down, the same must be good for all possible situations and should be applied uniformly in all similar factual situations irrespective of whether the situation, to avoid which the law is laid down is present in a particular case or not. Further in a selection the date as on which the comparative merits of the candidates have to be determined should also be certain. That shall not vary depending on the actual date of selection, which is not decided in advance W.P.(C)No. 15330 of 2005 -12- and may be postponed, perhaps for years, as in this case, failing which there would be uncertainty. Therefore I am of the opinion that as laid down by the Supreme Court, the qualifications and extra qualifications considered by the selection committee for assessing comparative merits also should be as on the last date for submitting applications. Clearly, since the difference in marks between the petitioner and the 3rd respondent was only 0.29, if the marks given to the 3rd respondent for the three components acquired by her subsequent to the last date for submitting applications are excluded, the petitioner is entitled to get the first rank in the selection. In the above circumstances, I am satisfied that the petitioner is entitled to succeed in this writ petition. Consequently Ext.P6 minutes of the meeting of the syndicate on 12.05.2005, by which the selection of the 3rd respondent was approved is here by quashed, and her appointment is also quashed. The respondents 1, 2 & 4 are directed to reassign marks of the candidates as per the above findings and appoint the 1st rank holder. Orders in W.P.(C)No. 15330 of 2005 -13- this regard shall be passed as expeditiously as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment.
The writ petition is allowed as above.
S. SIRI JAGAN JUDGE shg/