Kerala High Court
Nazeema P.K vs Abidha Beegum V.S on 7 July, 2016
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 3RD DAY OF APRIL 2017/13TH CHAITHRA, 1939
R.P.No. 908 of 2016 IN WP(C).37735/2015 (N)
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AGAINST THE JUDGMENT IN W.P(C) 27735/2015 of HIGH COURT OF KERALA
DATED 07-07-2016.
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REVIEW PETITIONER(S)/ 9TH RESPONDENT:-
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NAZEEMA P.K.,
ASSISTANT PROFESSOR, ALIGARH MUSLIM UNIVERSITY,
MALAPPURAM CENTRE, CHERUKARA POST, CHELAMALA,
PERINTHALMANNA, MALAPPURAM 679 340.
BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.)
SRI.SAJU JOHN.
RESPONDENT(S)/ PETITIONER, RESPONDENTS 1 TO 8, 10 T0 12:-
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1. ABIDHA BEEGUM V.S.
ASSISTANT PROFESSOR, DEPARTMENT OF LAW,
ALIGARH MUSLIM UNIVERSITY, MALAPPURAM CENTRE,
CHERUKARA POST, CHELAMALA, PERINTHALMANNA,
MALAPPURAM-679 340.
2. ALIGARH MUSLIM UNIVERSITY,
REPRESENTED BY ITS REGISTRAR, ALIGARH MUSLIM UNIVERSITY,
ALIGARH, U.P.-202002.
3. THE REGISTRAR,
ALIGARH MUSLIM UNIVERSITY,
ALIGARH, U.P.-202002.
4. THE VICE CHANCELLOR,
ALIGARH MUSLIM UNIVERSITY,
ALIGARH, U.P.-202002.
5. THE DIRECTOR,
ALIGARH MUSLIM UNIVERSITY, MALAPPURAM CENTRE,
CHERUKARA POST, CHELAMALA, PERINTHALMANNA,
MALAPPURAM-679 340.
R.P.No.908 of 2016 IN - 2 -
W.P(C).37735/2015 (N).
6. H.ABDUL AZEEZ,
DIRECTOR, ALIGARH MUSLIM UNIVERSITY, MALAPPURAM CENTRE,
CHERUKARA POST, CHELAMALA, PERINTHALMANNA,
MALAPPURAM-679 340.
7. FAISAL AHMED KHAN,
ASSISTANT PROFESSOR, ALIGARH MUSLIM UNIVERSITY,
MALAPPURAM CENTRE, CHERUKARA POST, CHELAMALA,
PERINTHALMANNA, MALAPPURAM-679 340.
8. GALIB NASHTAR,
ASSISTANT PROFESSOR, ALIGARH MUSLIM UNIVERSITY,
MALAPPURAM CENTRE, CHERUKARA POST, CHELAMALA,
PERINTHALMANNA, MALAPPURAM-679 340.
9. SHANAWAS AHMED MALIK,
ASSISTANT PROFESSOR, ALIGARH MUSLIM UNIVERSITY,
MALAPPURAM CENTRE, CHERUKARA POST, CHELAMALA,
PERINTHALMANNA, MALAPPURAM-679 340.
10. AUSAF AHMED MALIK,
ASSISTANT PROFESSOR, ALIGARH MUSLIM UNIVERSITY,
MALAPPURAM CENTRE, CHERUKARA POST, CHELAMALA,
PERINTHALMANNA, MALAPPURAM-679 340.
11. MUHAMMED ABU SAHID,
ASSISTANT PROFESSOR, ALIGARH MUSLIM UNIVERSITY,
MALAPPURAM CENTRE, CHERUKARA POST, CHELAMALA,
PERINTHALMANNA, MALAPPURAM-679 340.
12. AAMIR YOUSUF WAGAY,
ASSISTANT PROFESSOR, ALIGARH MUSLIM UNIVERSITY,
MALAPPURAM CENTRE, CHERUKARA POST, CHELAMALA,
PERINTHALMANNA, MALAPPURAM-679 340.
R1 BY ADV. SRI.KALEESWARAM RAJ
R2 TO R4 BY ADV. SMT.K.A.SANJEETHA
R BY ADV. SRI.K.R.MICHAEL
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
03-04-2017, ALONG WITH R.P.NO.810/2016, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:-
R.P.No.908 of 2016 IN
W.P(C).37735/2015 (N).
APPENDIX
REVIEW PETITIONER(S)' ANNEXURES:-
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ANNEXURE-I COPY OF THE LIST OF CANDIDATES.
ANNEXURE-II COPY OF THE CHART SHOWING THE SCORE COMPONENT OF THE
FIRST 19 CANDIDATES.
RESPONDENT(S)' ANNEXURES:-
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K. Vinod Chandran, J
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R.P.Nos.908 of 2016 & 810 of 2016 in
W.P.(C).No.37735 of 2015-N
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Dated this the 03rd day of April, 2017
ORDER
The review petitions are filed by the 9th respondent and the University. At first, the contention of the 9th respondent in R.P.No.908 of 2016, would be dealt with; which is supported by the University also, the petitioner in R.P.No.810 of 2016.
2. The learned Senior Counsel appearing for the 9th respondent would take me through Exhibit P10, the notification issued by the University and Exhibit P11, the application form containing the instructions to candidates to explain the manner in which the selection is to be done. It is the contention of the 9th respondent that there was no stipulation in Exhibit P10 that a candidate should have 2 [two] years of experience in the University. Exhibit P11 under the Note, grants the Vice-Chancellor discretion to call for more number of candidates in excess of 1:5 ratio and also persons who had at least two academic years of work experience at the University, which are separately specified and are quite distinct from each other. The RP.Nos.908/2016 & - 2 - 810/2016.
discretion exercised, according to the 9th respondent, was one evidenced from the third bullet in the Note, which reads as under:
"The number of candidates called for interview will preferably be five per vacant post. This number may vary at the discretion of the Vice-Chancellor".
3. The University also supports the case of the 9th respondent and produces the files again before this Court, which was once perused by this Court at the time of judgment. Based on letter No.MPMC/1114/4A/2015 dated 02.12.2015 it is contended that the discretion exercised was only with respect to increasing the number of candidates called for the interview and not of calling persons who had two years service in the University. It is pertinent that the University in their review does not have such a case and merely supports the plea of the 9th respondent which, coming from the 9th respondent can only be a surmise or conjecture. The University having no such plea it could be discarded at the outset; but this Court owes a duty to set the record straight.
4. The letter available in the files is not that produced as Exhibit P12; though the contents is the same. The endorsement of the RP.Nos.908/2016 & - 3 - 810/2016.
Officiating Vice-Chancellor is also seen from the letter in the files. The Director by the said letter had recommended 4 candidates. It is seen from Exhibit P12 itself; the contents of which is similar to that found in the files, that the 4 candidates were recommended since they were working in the University and had the necessary qualification. It is evident that the Director had issued the letter only since the said candidates were not shortlisted. That they were not shortlisted is beyond pale of doubt and hence the exercise of discretion was necessitated if they were to be considered for selection.
5. This Court on looking at the fore cited extract; under the Note to Ext P11 and the recommendation made, is not able to persuade itself that the discretion was one exercised in expanding the shortlist to include more number of candidates. Admittedly there were 15 candidates shortlisted for the interview for selection of three Assistant Professors; which is in accordance with the norms. The shortlisting of candidates done is available in Annexure-I, produced along with R.P.No.908 of 2016 appended to affidavit dated 01.04.2017. The 9th respondent was not included in the 15 candidates. She was at Serial No.19. It is also admitted by the RP.Nos.908/2016 & - 4 - 810/2016.
University that Serial Nos.16 and 17 were called for the interview, exercising the discretion to expand the shortlist. At that point, there was no discretion exercised by the Vice-Chancellor to extend the shortlist, to 19.
6. The candidates who were recommended by the Director, as eligible to be called for the interview at Exhibit P12 were - Ausaf Ahmad Malik (Respondent No.10), who was at Serial No.24 in the shortlist, Mohammed Abu Shahid (Respondent No.11), who was at Serial No.21, Naseema P.K. (Respondent No.9) who was at Serial No.19 and and Aamir Yousuf Wagay (Respondent No.12), who was at Serial No.33. In calling for candidates excluded from the interview, by the shortlisting, those who were at Serial No.19, 21 24 and 33 alone were recommended and the Vice-Chancellor decided to include the first three. None of the other candidates between Serial Nos.18 to 33 were so invited and there is no reason for discarding some and choosing few; if it were a mere enlargement of number. The discretion exercised by the Vice-Chancellor, in calling for respondents 9 to 11, cannot be said to be one intended at a mere increase in the number of shortlisted candidates.
RP.Nos.908/2016 & - 5 -
810/2016.
7. The discretion exercised very evidently, even going by the hand-written endorsement made, is with respect to the candidates who are in the second year of service. In the letter seen from the files, the Vice-Chancellor has indicated Serial Nos.1, 2 and 3 at Exhibit P12 to be having 1= years experience; in pen. Serial No. 4 fell short of even that. The endorsement again in ink, reads as under:
"Ser. 1, 2 & 3 are in their second year of service. As per past procedure we may issue them call letters. This will be applicable to Centres only".
8. Very evidently the discretion exercised was to call the existing temporary employees of the University, who were in their second year of service, which by no stretch of imagination can be said to be an exercise of discretion to increase the number of shortlisted candidates. At the risk of repetition, it has to be noticed that in any event the shortlist was increased by the Vice-Chancellor exercising discretion, including Serial Nos.16 and 17. The discretion exercised in the case of the other three was obviously one, conferred to call for experienced employees of the University itself. The three candidates who were not shortlisted but called for the interview; were found to be RP.Nos.908/2016 & - 6 - 810/2016.
not having the necessary experience in the University, by this Court; which alone would enable the Vice-Chancellor to exercise discretion as is seen from Exhibit P11. This Court does not find any reason to revisit the said finding or differ from the earlier opinion expressed. The argument raised of the nature of discretion exercised; though has a sheen of legalese, lacks in authenticity, coming from a candidate who would not be privy to the mind of the Vice-Chancellor. The University though supports the argument, does not have such a case in its review.
9. The next contention of the 9th respondent is that, what prevented the 9th respondent from being shortlisted is the prescription of age as seen from Exhibit P11 at "Category:II Age". But for the said stipulation she would have been shortlisted is the argument. The learned Senior Counsel refers to the affidavit now filed dated 01.04.2017 and the Chart at Annexure-II prepared by the 9th respondent without the aforesaid age stipulation being taken for shortlisting. Here it is pertinent that the 9th respondent had never challenged the shortlisting. The 9th respondent had also applied as per Exhibit P11 without any challenge to the factoring of age in the RP.Nos.908/2016 & - 7 - 810/2016.
shortlisting. If the 9th respondent had any objection with respect to the age stipulation as found in the Screening Form; which was at Appendix B of the application, then necessarily the same should have been taken up, before making an application.
10. It is the contention of the 9th respondent that since she was called for the interview, there was no requirement to challenge the stipulation. It is also requested by the learned Senior Counsel that the 9th respondent may be given an opportunity to challenge the stipulation, since the 9th respondent was also not aware of the fact that her shortlisting was denied for reason of the age factor. The contention that since the 9th respondent had been called for the interview, there was no challenge raised cannot be accepted. First the challenge cannot be made when the candidate is not shortlisted for reason of a stipulation, the candidate was aware of at the time of application. Further, in the writ petition the challenge was to the appointment of the 9th respondent on the ground of her not being entitled to be shortlisted. The 9th respondent also had not been issued with an interview summons. The 9th respondent despite that did not choose to challenge that stipulation. The Vice Chancellor had allowed RP.Nos.908/2016 & - 8 - 810/2016.
the respondents 9 to 11 to be participated only on 05.12.2015 for an interview happening on the 8th of that month. It cannot also be reasonably assumed that the 9th respondent was not aware that she was not shortlisted.
11. Be that as it may, the candidate having applied under a stipulation cannot challenge it on her being found ineligible by that stipulation. A challenge made to a stipulation after subjecting to it first and later finding it to be prejudicial; would anyway fail for reason of the individual candidate having willingly submitted to the selection procedure. Yet again the stipulation on age is one assigning marks to a candidate; based on a formula by which his/her age is compared with the eldest and youngest candidate applying for the post. This is a reasonable stipulation ensuring the right aged candidate among those applying being selected; balancing experience with sufficient period of future service in the University. A reasonable norm, it is trite, would not be interfered with on it causing prejudice to some or even for grounds of there being possible, a more reasonable one.
12. This Court does not find any reason to review the judgment at the instance of the 9th respondent. Hence, R.P.No.908 of RP.Nos.908/2016 & - 9 - 810/2016.
2016 is found to be devoid of merit. The grounds raised of an error on the face of record is a mere monotone without substantiation.
13. The University's contention in their review petition is that what has been recorded by this Court in paragraphs 23 and 24, that the shortlisting was done on the basis of Clauses 'a' and 'b' of Table II(c) of Appendix-III of Exhibit P15 notification is not correct especially going by the specific contentions taken in the counter affidavit. It is significant that the said finding was on the admission made by the Learned Standing Counsel appearing for the University. This Court is constrained to observe that the review has been filed by the same Standing Counsel, wherein Ground-D is taken, which reads as under:
"D. The statement in Paragraph 24 of the judgment that (a) and (b) of the Appendix III Table 2(c), which are the criteria for short listing candidates, have to be added to the marks received at interview, is not correct. As per the rules, the marks awarded for short listing cannot be considered in the final selection".
As mentioned, this Court had recorded the admission made by the learned Standing Counsel for the University and nowhere is it stated, in the review petition, that such an admission was not made before RP.Nos.908/2016 & - 10 - 810/2016.
Court. It is also to be noticed that it was not as if the University was not aware of the day to day proceedings before this Court. The matter was heard on various days and the University was also required to clarify many aspects, on which doubts arose at the hearing. The University had filed its Counter-affidavit on 13.01.2016 and so did the party respondents later to that. The petitioner too had filed reply affidavits and the matter was heard and treated as part heard on 29.03.2016. The University had sought time to produce the files and to offer clarifications. The matter was then heard on 06.04.2016, 20.05.2016 and 01.06.2016. The University had then filed an additional counter-affidavit on 15.06.2016 and an amendment to the same, withdrawing a contention urged by an amendment application dated 18.06.2016. These affidavits were filed by the Registrar of the University and the files available at Aligarh were also produced. The University hence was posted of the day to day developments in the case. Hence, it is not as if the Standing Counsel has made the admission without the University being informed of the same.
14. The contention, however, taken by the present Standing Counsel now arguing for the respondent-University is that RP.Nos.908/2016 & - 11 - 810/2016.
Exhibit P15, University Grants Commission Regulations, did not stipulate any minimum Academic Performance Indicator (API) score and 'a', 'b' and 'c' in Column 2 as noticed by this Court were marks awarded at the interview and not for shortlisting. It is submitted that the shortlisting is done on the basis of the academic qualification, age, research publication and academic contributions; which are the criteria for shortlisting as per Exhibit P11. Further marks are granted for 'a', 'b' and 'c' at the interview, is the specific contention taken. The University submits that the UGC Regulation on Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures of Standards in Higher Education, 2010 was amended in the year 2013 and API scores are no longer significant for the expert assessment of candidates in Direct Recruitment and are employed only in the initial screening. It is also urged that a similar issue was considered by the Allahabad High Court in the decision placed as Annexure D.
15. At the time of the earlier hearing of the writ petition and even now the files with respect to the interview were/are produced before this Court and have been perused. As was recorded in the RP.Nos.908/2016 & - 12 - 810/2016.
judgment, there was nothing indicated as to the marks awarded to the respective persons who were stated to be selected, including the 9th respondent. Three persons were recommended for appointment as Assistant Professor (Law) and three persons were shown as wait-listed. This Court had found in the judgment itself that the procedure is flawed insofar as there is no transparency as to the award of marks to the various candidates. Even now the University contends that the Selection Committee awards marks in the scale of 100 divided between Academic Record and Research Performance (50%), Assessment of Domain Knowledge and Teaching Skills (30%) and Interview performance (20%); which are the 'a', 'b' and 'c' referred to in paragraph 23 of the judgment. But the University is unable to produce the marks awarded in each of the said heads to the individual candidates who were interviewed. It was in such circumstance that the learned Standing Counsel, at the time of final hearing of the writ petition admitted that 'a' and 'b' were the criteria under which the candidates were shortlisted and 'c' is the marks awarded at the interview. Even if the contrary stance now taken is accepted the University has to disclose the assessment made by the Selection RP.Nos.908/2016 & - 13 - 810/2016.
Committee.
16. The Academic Performance Indicator (API), said to be applicable only at the time of shortlisting, is also based on the Academic Record and Research Performance and Assessment of Domain Knowledge and Teaching Skills, as seen from Exhibit P11. This would take in 'a' and 'b' as seen in Exhibit P15 notification. The shortlisting is done as indicated in Ext.P11. Category 1 is Academic qualification and specific points are indicated for the grades obtained, in various levels from the High School to Doctoral level, for other academic awards like NET/GATE, JRF etc:, scholarships and unique distinctions like holding First Position at the UG and PG levels. Category III is with respect to Research, Publications and Academic Contributions again with specific points for the various achievements like published papers, articles and books, with different marks specified even for joint authorship with one or more co-authors. A comprehensive scheme of assessment is discernible from the detailed assessment procedure prescribed in Ext.P11 itself. The further specification that went into the initial screening for the purpose of shortlisting is "age", wherein the 9th respondent, Naseema P.K., has RP.Nos.908/2016 & - 14 - 810/2016.
scored 3.08 points while the petitioner, Abidha Beegum V.S., as per Annexure II was eligible to 7.10 points.
17. The elaborate scheme of assessment at the first level of screening would not definitely regulate the consideration by the Selection Committee, if as submitted by the University, the criteria at 'a' & 'b', as is seen from Ext.P15, are to be again assessed. This Court has specifically found that there was absolutely no records to indicate the procedure resorted to, for selecting the candidates by the Selection Committee and the minutes or at least the marks awarded to the individual candidates. It was in that context the Court adopted the marks awarded at the shortlisting to see if there could have been any major change in the ranking of the various candidates with the interview marks. The contention that the marks awarded at the interview for 'a' 'b' & 'c" would have to be converted to 100 marks, is inconsequential, since such conversion would inure to the benefit of all. Finding that the 9th respondent was not eligible to be shortlisted, this Court had looked at the marks of the candidates at the time of shortlisting and permitted the petitioner in the writ petition to be continued, subject, however, to the claim of Faisal Ahmed Khan, who RP.Nos.908/2016 & - 15 - 810/2016.
has not appeared in the writ petition and who was not heard. Only since Faisal Ahmed Khan had not challenged the selection at all, this Court had directed the petitioner in the writ petition to be continued in the post to which the 9th respondent was appointed.
18. Annexure D was also a case in which the Selection to the faculty of the University was challenged as vitiated by nepotism. Therein the screening was at two stages called the Faculty Affairs Committee-Level-1 & Level-II (FAC-I & II). The contention taken was that the candidates who stood first at both the initial screening stages were avoided at the interview where an arbitrary exercise was made to choose candidates of their choice. The contention of the University that the API scores were applied only at the initial stage and would have no bearing on the expert assessment of candidates was accepted by the Court. The Court dismissed the plea of arbitrariness and nepotism on the well accepted proposition of; Courts desisting from interfering with an assessment made by a expert committee; substituting its subjective opinion over that of the experts. The proposition is too well heeled, for this Court to differ therefrom. But it is seen from the text, that the Minutes of the Selection Committee was RP.Nos.908/2016 & - 16 - 810/2016.
placed before the Court, but the contents is not revealed. The Court has also recorded the submission of the University that weightage score sheet was prepared by the Selection Committee at its meeting held in-camera and records of discussion or separate marks assigned for each parameter is not maintained for ensuring confidentiality. This Court is unable to persuade itself to hold that the cloak of confidentiality claimed, can lead to the assessment being shrouded in a complete mystery; especially when the appointment is made to a public office. There can be no confidentiality claimed in such matters; in providing the necessary details to a Court of law in the event of a challenge. There cannot be a fresh assessment made by the Court, of the parameters, to differ from the views of the expert committee; but that does not prevent the Courts from ensuring that the selection parameters were properly looked into and there is no arbitrary exercise in favour of one or against another. The judicial review, to the permissible limit, cannot be frustrated by destruction of the minutes or the criteria of assessment employed by the Selection Committee on claims of confidentiality. To that extent this Court finds it difficult; with utmost respect, to follow the decision placed at Annexure-D. RP.Nos.908/2016 & - 17 - 810/2016.
19. The contentions raised by the University in the review, are not substantiated by providing the allotment of marks as carried out by the Selection Committee at the interview. The procedure of the selection committee is still in the dark. In that context one cannot but fall back upon the marks awarded in the shortlisting; to assess 'a' & 'b' as found in Ext.P15. The Selection Committee also could not have differed substantially from the detailed procedure stipulated in Ext.P11, in awarding marks for the said categories since then the selection would be purely dependent on the interview, at the whim of the Committee, thus making it arbitrary, and the prescription of 20% for the interview rendered otiose. The review hence is devoid of merit and is not urged on any error on the face of the record. Effectively new contentions were urged and arguments addressed which do not come within the scope of a review as found in State of WB v. Kemal Sengupta [(2008) 8 SCC 612]. Virtually the matter was reheard, only since it seriously prejudices the 9th respondent. The review petition of the University is also devoid of merit and is rejected.
20. The learned Counsel for the petitioner in the writ petition submits that the petitioner is being paid salary; but, however, RP.Nos.908/2016 & - 18 - 810/2016.
is kept away from work and the 9th respondent is also continued. The learned Standing Counsel for the University denies such contention and submits that though the petitioner is continued, she is refusing to do work. The 9th respondent is continued pending review; but no salary is paid is the contention. In any event, the University would look into the issue and ensure that public money is not squandered by paying two persons as against one sanctioned post. The writ petitioner would be entitled to be appointed and continued under the judgment.
Review Petitions are rejected accordingly. Parties are left to suffer their respective costs.
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K.Vinod Chandran Judge.
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