Kerala High Court
Faizal P vs The Kannur University on 5 November, 2019
Bench: A.M.Shaffique, T.V.Anilkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941
WA.No.1823 OF 2019
AGAINST THE JUDGMENT IN WP(C) 24955/2017(T) OF HIGH COURT OF
KERALA dt 6.3.2019
APPELLANT/PETITIONER IN THE WP(C):
FAIZAL P.,
AGED 37 YEARS
S/O. P. MAYAN, LECTURER ON CONTRACT BASIS,
SCHOOL OF HEALTH SCIENCES, KANNUR UNIVERSITY,
RESIDING AT ROSEBED, CHADALAPPUZHA ROAD,
KODIYOOR P.O., THALASSERY, KANNUR-670642.
BY ADVS.
SRI.D.KISHORE
SMT.MINI GOPINATH
SMT.MEERA GOPINATH
SRI.R.MURALEEKRISHNAN (MALAKKARA)
SRI.P.RAVINDRAN (SR.)
RESPONDENTS/RESPONDENTS IN THE WP(c):
1 THE KANNUR UNIVERSITY,
REPRESENTED BY ITS REGISTRAR, CIVIL STATION,
KANNUR P.O., KANNUR-670002.
2 THE VICE-CHANCELLOR,
KANNUR UNIVERSITY, CIVIL STATION, KANNUR P.O.,
KANNUR-670002.
WA Nos.1823 & 1904/19
-:2:-
3 DR. ARUN B.,
USHUS, MITHIRMALA P.O.,
THIRUVANANTHAPURAM-695610.
4 VINOD B.,
RESHMI, KARIKODE, TKM COLLEGE P.O.,
KOLLAM-691005.
5 SUNEESH K.,
ANJALI NIVAS, KELOTH, PAYYANNOOR P.O.,
KANNUR-670307.
6 DR. PRAVEEN E.P.,
MALATHI NIVAS, PARIPPAYI, CHANGALAYI P.O.,
KANNUR-670631.
R1 BY SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY
R2 BY ADV. SRI.M.SASINDRAN (BY ORDER)
R3 BY ADV. SRI.ELVIN PETER P.J.
R3 BY ADV. SRI.K.R.GANESH
R3 BY ADV. SMT.N.R.REESHA
R3 BY ADV. SMT.S.LALITHA
R6 BY ADV. SRI.S.MUHAMMED HANEEF(BY ORDER)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
11.10.2019, ALONG WITH WA.1904/2019, THE COURT ON 5.11.2019
DELIVERED THE FOLLOWING:
WA Nos.1823 & 1904/19
-:3:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR
TUESDAY, THE 05TH DAY OF NOVEMBER 2019 / 14TH KARTHIKA, 1941
WA.No.1904 OF 2019
AGAINST THE JUDGMENT IN WP(C) 2018/2017(B) OF HIGH COURT
OF KERALA DATED 6.3.2019
APPELLANT/PETITIONER IN THE WP(C):
DR.PRAVEEN.E.P.,
AGED 39 YEARS
MALATHI NIVAS, PARIPPAYI, CHANGALAYI P.O.,
KANNUR- 670631.
BY ADVS.
SRI.S.MUHAMMED HANEEFF
SRI.M.H.ASIF ALI
RESPONDENTS/RESPONDENTS IN THE WP(c):
1 KANNUR UNIVERSITY,
REPRESENTED BY ITS REGISTRAR, CIVIL STATION,
KANNUR P.O., KANNUR- 670002.
2 THE VICE-CHANCELLOR,
KANNUR UNIVERSITY, CIVIL STATION, KANNUR P.O.,
KANNUR- 670002.
3 DR.ARUN.B.,
USHUS, MITHIRMALA P.O.,
THIRUVANANTHAPURAM- 695610.
4 VINOD.B.,
RESHMI, KARIKODE, TKM COLLEGE P.O.,
KOLLAM- 691005.
WA Nos.1823 & 1904/19
-:4:-
5 SUNEESH K.,
ANJALI NIVAS, KELOTH, PAYYANNOOR P.O.,
KANNUR- 670307.
6 FAIZAL P.,
ROSEBED, CHADALAPPUZHA ROAD, KODIYOOR P.O.,
THALASSERY, KANNUR- 670642.
R1 BY SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY
R3 BY ADV. SRI.ELVIN PETER P.J.
R3 BY ADV. SRI.K.R.GANESH
R3 BY ADV. SMT.N.R.REESHA
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
11.10.2019, ALONG WITH WA.1823/2019, THE COURT ON 5.11.2019
DELIVERED THE FOLLOWING:
WA Nos.1823 & 1904/19
-:5:-
JUDGMENT
Dated this the 5th day of November 2019 Shaffique, J.
Writ petitioners in W.P.(C) Nos.24955/2017 and 2018/2017 respectively ar e the appellants in W.A.Nos. 1823 and 1904 of 2019. Since the issues arising in these appeals are identical, they are being disposed of by a common judgment.
2. The appellants challenge the orders dated 06/03/2019 passed by the learned Single Judge of this Court in the above writ petitions, refusing to quash the select list by which the 3 rd respondent in the writ petitions was selected and appointed to the post of Assistant Professor in the school of Health Sciences under the 1st respondent University.
3. Appellants applied to the post of Lecturer (later re- designated as Assistant Professor) in the school of Health Science, pursuant to Ext.P1 notification dated 17/06/2010 issued by the 1st respondent University, inviting applications from eligible candidates possessing qualifications prescribed by UGC norms. The norms inter alia provided that the candidates must WA Nos.1823 & 1904/19 -:6:- have cleared National Eligibility Test (NET) conducted by UGC, CSIR or similar test accredited by the UGC. However, those candidates having Ph.D. degree in the subject concerned, were exempted from NET qualification.
4. The selection committee which conducted interview of the eligible candidates awarded 69 marks to the 3 rd respondent and ranked him first in the list. The appellant in WA No.1823/2019 was awarded 53 marks and placed in rank No.04. The appellant in W.A.No.1904/2019 secured 64 marks and was ranked 03. The respondents 4, 5 and 6 secured 65, 59 and 64 marks and were placed in Rank Nos.2, 4 and 3 respectively. The 3rd respondent, being the first rank holder, was appointed to the post on 13/12/2015.
5. The contention of the appellants in the respective writ petitions is that the marks awarded in the selection are against the norms and consequently the appointment of the 3 rd respondent to the post is illegal and liable to be set aside. It is contended that there were no definite and clear criteria fixed by the University for awarding marks to the candidates and the selection committee acted arbitrarily and awarded marks to the 3rd respondent in a whimsical manner. The parameters followed WA Nos.1823 & 1904/19 -:7:- for awarding marks were very vague and that too were not scrupulously followed by the selection committee. It is contended that the appellants were denied eligible marks, whereas the 3 rd respondent was awarded marks which he was not entitled under the norms. The 3rd respondent filed counter and sought to sustain the selection and his appointment on the basis of contentions raised therein.
6. The learned Single Judge after having heard the parties was satisfied that there occurred some discrepancies in the process of awarding marks due to non observance of criteria fixed by the 1st respondent in Ext.P4(a). Nevertheless, the learned Judge refused to interfere with the selection and appointment of the 3rd respondent holding that, even if the discrepancies were taken into account, they were not sufficient to affect the rank secured by him. The writ petitions were dismissed on the ground of delay also taking the view that the petitioners, if aggrieved, ought to have approached the Court at an early date immediately after the selection came to their notice.
7. The learned counsel for the appellants repeated the same contentions, which were urged in the writ petitions while WA Nos.1823 & 1904/19 -:8:- the learned counsel for the 3 rd respondent sought to sustain the impugned orders contending that distribution of marks was in consonance with criteria prescribed in Ext.P4(a).
8. We heard the learned counsel appearing on both sides.
9. Ext.P2(b) score list obtained by one of the candidates from the 1st respondent under the provisions of Right to Information Act, 2005 shows marks awarded to each of them by the selection committee. It is extracted as hereunder:
"KANNUR UNIVERSITY Name of the Qualific Publications Teaching/ Add. The candidate ation research certificates experience of degree/ Diplomas/ Certificates/ Awards Percent NET NET Papers Papers 3 marks for 3 for Interview Total age of with with presented published each Degree 2 Total M.Phi PHD in National in completed for Marks l. 15 Interna- referred experience Diploma 4 obtaine Marks marks tional journals for d in PG Seminars on marks/ Certificate Exam (1 mark/ post 2 for 60% paper) Max 40 Max 15 Max 25 Max 5 Max 15 Max 100
1.JISHA 20 - - - 01 06 - 15 42 2SAVIJA 20 - - - 00 03 - 15 38 MUNDAKAD
3. FAIZAL 20 - - - 04 09 - 20 53
4.POORNIMA R 20 - - - - 09 - 18 47 VARMA
5. VINODB.S. 25 05 10 - 03 00 - 22 65
6. BHAVYA VINOD 25 - - - 00 00 - 15 40
7.SUNEESH.K 25 - - - 05 09 - 20 59
8. PRAVEEN E.P. 20 - 10 - 12 03 - 19 64
9. RAJAN I 20 05 - - 00 03 - 14 42
10. ANURANJINI.C. 20 - - - 03 03 - 15 41
11. SHYNI K.T. 20 - - - 00 03 - 14 37
12. ARUN .B 20 - 15 - - 15 - 19 69 WA Nos.1823 & 1904/19 -:9:-
10. The criteria adopted by the committee for awarding marks under specified heads shown in the score list and the copy of report obtained from the University under the provisions of the Right to Information Act as to compliance of norms could be borne out from Ext.P4(a). The relevant portion of Ext.P4(a) is extracted below:
"1. xxx xxx xxx
2. xxx xxx xxx
3. xxx xxx xxx
4. xxx xxx xxx
5. xxx xxx xxx
6. xxx xxx xxx
7. xxx xxx xxx
8. A total of 100 marks were fixed for the interview. Of that, the criteria fixed for the distribution is as stated:
Qualification Max.40 marks (i) PG exam 60% + 20 (ii) NET with M.Phil 5 (iii) NET with Ph.D. 15 Publication Max 15 marks (i) Paper presentation in 1 mark/ national/International paper seminar WA Nos.1823 & 1904/19 -:10:- (ii) Paper presented in ref. 2 marks/ journal paper Teaching/Resear Max 15 marks ch Exp.
3 marks for each completed year of experience Additional Max 5 marks relevant degree/diploma/ certificate/ awards Degree-3; Diploma 2;certificate 1: and Award 2 Interview Max 25 marks
9. Of the 5 persons included in the rank list, the mark distribution is seen done as detailed in annexure I attached.
10. In the case of ranked candidates, the following points may be noted.
1 Dr.Arun B.- The candidate does not possess NET. But he is seen given max.marks i.e., 15 for NET with Ph.D. He is seen awarded the maximum of 15 marks for teaching/research experience. The candidate has experience at Pariyaram Medical College only. It may be noted that experience under Government/Aided/Central Government sponsored Higher Education Institutes is to be considered while reckoning teaching/research experience. Pariyaram Medical College does not come under this criterion. No evidence is seen in the file regarding reckoning of experience at Pariyaram Medical College. He has been awarded 19 marks in the interview out of 25 taking his total score to 69 and to being ranked I. WA Nos.1823 & 1904/19 -:11:- 2 Vinod B.S.- The maximum marks that can be awarded for PG in the qualification category is fixed as 20 whereas the candidate is seen awarded 25 marks. Further the candidate is seen awarded the max.of 5 marks in the category of NET with M.Phil and 10 marks in the category of Net with Ph.D.(out of 15). But the candidate possess only NET and has neither M.Phil nor Ph.D. But the overall score in the category of qualification is seen limited within the max.of 40 marks. 3 marks is seen awarded for papers published though he has not furnished any proof regarding the same. In the file, except a remark from his guide. He has scored 22 marks out of 25 in the interview and taken his total score to 65 placing him in the 2 nd rank. He is eligible for PG weightage and interview marks only.
3 Praveen E.P.- The candidate does not possess NET/M.Phil or Ph.D. But he is seen awarded 10 marks in the slot of NET with Ph.D. In the category of qualification. He is seen awarded 12 marks for papers published, but there is no proof to substantiate his claim in the file. 3 marks have been granted for the research experience of 5 years at AIIMS and granted 19 marks in the interview taking his total marks to 64 and placing in the 3 rd place.
4 Suneesh K- The candidate is seen awarded 25 marks for his PG qualification under the category of qualification while fixing the same as 20. Also 5 marks is seen awarded for paper presentation without any proof to substantiate the claim. Further 9 marks is seen given for research/teaching experience whereas he has only 3 months experience in the department. Experience in self financing institutions are not considered. In the interview a maximum of 20 marks is seen awarded taking the total marks to 59 and placing him in the 4 th position.
5 Faizal P- The candidate does not possess NET/JRF/M.Phil nor Ph.D.20 marks is seen published work of 4 authors in an international journal and 9 marks for the 4 years of teaching experience. He was awarded 20 marks in the interview taking his total score to 53 and placing him in the 5th position in the rank list.
11. WP(C) No.2018/2017 has been filed by Dr.Praveen E.P., WA Nos.1823 & 1904/19 -:12:- who was awarded 64 marks. WP(C) No.24955/2017 is filed by Faisal P., who had been awarded 53 marks. Arun B, the 3 rd respondent has 69 marks, Vinod B., the 4 th respondent has 65 marks and Suneesh K., who is the 5th respondent has 59 marks. Faisal P., is given 20 marks out of 25, for the basic qualification of Post graduation, 4 marks for publication, 9 marks towards 3 years teaching experience and 20 marks during interview. Other than pointing out certain infirmities while awarding the marks, according to him, he has 4 years teaching experience for which he should have been given 12 marks and only 3 year teaching experience has been taken into account and only 9 marks had been awarded. Even if the said mark is awarded, he would only get 57 marks, much less than the other candidates referred above.
12. Dr.Praveen is awarded 20 marks for Post graduation, 10 marks for NET with Ph.D, 12 marks for publication, 3 marks for teaching experience and 19 marks for interview. He does not have M.Phil or Ph.D. For NET qualification, he is awarded 10 marks. Ext.P4(a) would indicate that he does not possess either NET/M.Phil or Ph.D. However, he is awarded 10 marks in the column NET with Ph.D. If that is reduced, his total mark will only WA Nos.1823 & 1904/19 -:13:- come to 54. Even otherwise, he cannot stake a claim over and above Dr.Arun B, the 3rd respondent.
13. The first contention is regarding marks given for NET with M.Phil and NET with Ph.D. The selection and appointment to the post of Lecturer in Health Sciences is notified as per notification dated 17/6/2010. The qualifications prescribed are good academic record with 55% marks or an equivalent at Master's Degree level in the relevant subject from an Indian University or an equivalent Degree from a foreign University approved by AIU. That apart, the candidate should have cleared NET conducted by the UGC, CSIR or similar test accredited by UGC. Note to the qualification criteria further indicates that candidates having Ph.D degree in the subject are exempted from NET. The minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and measure for the maintenance of standards in higher education are prescribed by UGC. According to the 3 rd respondent, NET in the subject Health Sciences is not being conducted. One of the contention urged by the petitioners is that when 15 marks had been prescribed for NET with Ph.D., and 10 marks is awarded to certain candidates who have only NET qualification, for having Ph.D., WA Nos.1823 & 1904/19 -:14:- only 5 marks could be awarded. Such a reasoning, according to us, is absolutely erroneous. First of all, it is for the Selection Committee to prescribe marks to ensure transparency. In fact, for the basic qualification, the total marks is prescribed as 40, which is segregated between Post graduation, NET with M.Phil and NET with Ph.D. NET is an essential qualification and therefore, the additional marks which had been prescribed for NET with M.Phil is 5 marks and it is indicated that NET with Ph.D would be 15 marks. It is pointed out that neither Vinod B.S. or Praveen E.P who had been awarded 10 marks each for NET with Ph.D does not possess Ph.D. If NET with M.Phil is given 5 marks, NET alone will not get any marks and therefore, the indication was to give marks either for having M.Phil or Ph.D, especially when NET is exempted for Ph.D. It is rather clear that a person having Ph.D is exempted from NET qualification which is a higher qualification and a person holding Ph.D should be awarded more marks. Therefore, there is nothing wrong in the Committee awarding 15 marks for the 3rd respondent for acquiring Ph.D. None of the other candidates have Ph.D and therefore the Selection Committee did not commit any error in granting better marks to the 3 rd respondent.
WA Nos.1823 & 1904/19 -:15:-
14. Now coming to teaching experience, which is another disqualification found in Ext.P4(a) as far as the 3 rd respondent is concerned, it is relevant to note that along with the counter affidavit filed in WP(C) No. 2018/2017, he had submitted Ext.R3(g), a certificate dated 26/7/2011 from the Academy of Medical Sciences, Pariyaram. It s certified that the 3 rd respondent has been appointed as Lecturer in the department of Micro Biology w.e.f. 28/4/2003 and he is holding the post of Lecturer (Sr.Grade) in the same department from 28/4/2009 and was continuing. This teaching experience had been reckoned by the Selection Committee. Ext.R3(e) would further indicate that 3 rd respondent was serving in the Government Medical College, Palakkad from 22/3/2014 to 29/12/2015. He resigned from the said job to undertake the employment in the present establishment. Therefore, the award of 15 marks to the 3rd respondent as teaching experience cannot be found to be unjustifiable. In Ext.P4(a), it is stated that the teaching experience is not from a Government/Aided/Central Government Sponsored Higher Education Institute and teaching experience in Pariyaram Medical College does not come under the criteria. In fact, there is no such restriction imposed in the qualification WA Nos.1823 & 1904/19 -:16:- criteria. Even if it is not a Governmental institution, still the experience as a teacher has to be counted while a selection Committee decides on the teaching experience as such and therefore, there was nothing wrong in the Committee giving 15 marks towards teaching experience of the 3 rd respondent. In fact, once we decide that the 3rd respondent had the requisite marks, nothing further survives to be decided. Of course, the petitioner has a contention that the marks awarded to Sri.Vinod B.S., Dr.Praveen E.P., and Sri.Suneesh K.,are also irregular. In so far as we have already found that the 3rd respondent has obtained the highest mark and there is nothing wrong in awarding the said marks to him, there is no reason to consider whether the award of the marks to the other candidates are justified or not. Even otherwise, none of the petitioners can have a march over the 3 rd respondent.
15. In the circumstances, we are of the view that the petitioners have not succeeded in establishing that the Selection Committee had committed any error in recommending appointment of the 3rd respondent to the post of Assistant Professor.
WA Nos.1823 & 1904/19 -:17:- In the result, we do not find any reason to interfere with the judgment of the learned Single Judge. Writ appeals are dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
T.V.ANILKUMAR
Rp True Copy JUDGE
PS to Judge