Kerala High Court
Dr.Balachandran Keezhoth vs Kannur University on 7 February, 2011
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
WEDNESDAY, THE 28TH DAY OF NOVEMBER 2012/7TH AGRAHAYANA 1934
WP(C).No. 22528 of 2011 (M)
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PETITIONER(S):
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DR.BALACHANDRAN KEEZHOTH,
AGED 46, S/O.P.KANNAN, DEEMGOOD,
RADHAVILASAM SCHOOL LANE,
PALLIKKUNNU POST, KANNUR, PIN-670 004.
BY ADVS. SRI.K.K.ASHKAR,
SMT.ASHIRA MOHAMED ASHROF,
SRI.P.K.IBRAHIM.
RESPONDENT(S):
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1. KANNUR UNIVERSITY,
KANNUR, REP. BY ITS REGISTRAR, 670 567.
2. THE SYNDICATE, KANNUR UNIVERSITY,
KANNUR, REP. BY ITS CHAIRMAN, 670567.
3. DR.ASOKAN, THE REGISTRAR,
KANNUR UNIVERSITY, KANNUR-670 567.
4. DR.JAMES PAUL,
MAZHUVANCHERIL HOUSE,
NIRMALAGIRI POST, NIRMALAGIRI-670 701.
R1 & R2 BY ADV. SRI.M.SASEENDRAN,SC, KANNUR UNIVERSITY.
BY ADV. SRI.V.A.MUHAMMED
R3 BY ADV. SRI.P.C.SASIDHARAN.
R4 BY ADV. SRI.K.V.PAVITHRAN.
BY ADV. SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 20-11-12, ALONG WITH W.P.(C)NO. 17319 OF 2011, THE
COURT ON 28-11-2012 DELIVERED THE FOLLOWING:
rs.
WP(C).No. 22528 of 2011 (M)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE NOTIFICATION DATED 07/02/2011.
EXT.P2 COPY OF THE APPLICATION DATED 21/02/2011 SUBMITTED BY
THE PETITIONER ALONG WITH LIST OF ENCLOSURES
ANNEXED THEREIN.
EXT.P3A COPY OF THE CERTIFICATE DATED 21/10/2010 AS TEACHER AND
HEAD OF THE DEPARTMENT OF MALAYALAM ISSUED BY
THE PRINCIPAL, CO-OPERATIVE ARTS AND SCIENCE COLLEGE,
MADAYI.
EXT.P3B COPY OF THE ADMINISTRATIVE EXPERIENCE CERTIFICATE
DATED 21/10/2010 IN THE RANK OF LIEUTENANT AS NCC
COMPANY COMMANDER.
EXT.P4 COPY OF THE PROCEEDINGS OF THE SELECTION COMMITTEE
(OBTAINED UNDER RIGHT TO INFORMATION ACT).
EXT.P5A COPY OF THE RESOLUTION OF THE SYNDICATE.
EXT.P5B COPY OF THE ORDER OF THE APPOINTMENT DATED 19/05/2011
(OBTAINED UNDER RIGHT TO INFORMATION ACT).
EXT.P6A COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT.
EXT.P6B COPY OF THE REPLY DATED 12/05/2011 RECEIVED BY
MR.NASEER K.M. UNDER RTI ACT.
EXT.P7 COPY OF THE CERTIFICATE DATED 12/05/2011.
EXT.P8 COPY OF THE INFORMATION OBTAINED UNDER RIGHT TO
INFORMATION ACT FROM THE PRINCIPAL, NIRMALAGIRI COLLEGE.
EXT.P9 COPY OF THE REPRESENTATION DATED 20/06/2011 MADE BY THE
KERALA PRIVATE COLLEGE TEACHERS' ASSOCIATION.
EXT.P10 COPY OF THE GUIDELINE FOLLOWED BY THE SELECTION
COMMITTEE FOR AWARD OF INDEX MARKS.
EXT.P11 COPY OF THE REPORT APPEARED IN MALAYALA MANORAMA
ON 20/05/2011.
WP(C).No. 22528 of 2011 (M)
EXT.P12 COPY OF THE LETTER DATED 19/05/2011 SEEKING TO RELIEVE
THE 3RD RESPONDENT FROM DUTY TO JOIN AS REGISTRAR
IN THE KANNUR UNIVERSITY.
EXT.P13 COPY OF THE MINUTES CONTAINING THE RESOLUTION
NO.2011.234, 2011.374.
RESPONDENT'S EXHIBITS:-
EXT.R3A COPY OF THE CURRICULUM VITAE.
EXT.R3B COPY OF THE COMMUNICATION ISSUED BY THE
ELECTION DEPARTMENT DATED 04/03/2011.
EXT.R4A COPY OF THE RELEVANT PART OF KANNUR UNIVERSITY STATUTE.
EXT.R4B COPY OF THE CERTIFICATE DATED 28/02/2011, PROVING TEACHING
EXPERIENCE, ISSUED BY THE PRINCIPAL, NIRMALAGIRI COLLEGE.
//TRUE COPY//
P.S. TO JUDGE
rs.
P.R.RAMACHANDRA MENON, J.
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W.P.(c) Nos.17319 & 22528 of 2011
- - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 28th day of November , 2012
JUDGMENT
Selection and appointment of 'Registrar' in the respondent University is under challenge in both these cases. As pointed out by the learned counsel appearing for the parties concerned, the pleadings and proceedings are complete in all respects in W.P.(C)No.22528/2011 and hence reference is made to the parties, pleadings and records as referred to in W.P.(C)No.22528/2011, unless otherwise mentioned separately.
2. The main dispute raised by the petitioner is that, the appointing authority, who is none other than the Syndicate had not formulated any norms for awarding the 'index marks' in the interview, which came to be fixed on the date of interview by the Chairman of the Selection Committee and this is alien to the law declared by a Full Bench of this Court in Keshav Mohan v. University of Kerala ( 2009 (4) KLT 573 ( F.B.). It is also the contention of the petitioner that, the third and fourth respondents herein are not having the requisite W.P.(C)Nos.17319 & 22528 OF 2011 2 qualification as notified by Ext.P1 and hence placement of the said respondents above the peitioner in Ext.P4 rank list as Rank Nos. 1 and 2 respectively, finally leading to the selection and appointment of the third respondent to the post in question, is per se wrong and illegal in all respects.
3. The first respondent/University, as per Ext.P1 notification dated 7.2.2011 invited applications for appointment to the post of 'Registrar'. The minimum qualification prescribed was First or Second Class Post Graduate Degree and five years teaching experience at University level and about five years of administrative experience in a responsible post including management of staff in a University or College or Education Department or similar institution. The last date for submitting the application was on 3/3/2011.
4. Pursuant to Ext.P1 notification, the petitioner, who is having a Post Graduate Degree in M.A.(Malayalam) with first rank, M.Phil and Ph.D., working as Associate Professor in C.A.S. College, Madayi, Payangadi and having the requisite experience as notified in Ext.P1, submitted Ext.P2 application. The administrative experience, W.P.(C)Nos.17319 & 22528 OF 2011 3 which is insisted vide Ext.P1 was sought to be substantiated on the basis of Ext.P3(a) and P3(b), being the Head of the Department of Malayalam and also by virtue of his being an officer in the rank of Lieutenant, as the NCC Company Commander in the concerned college. After considering the credentials of all the applicants who attended the interview on 6.4.2011, the Selection Committee consisting of Vice-Chancellor, Pro-Vice Chancellor ( as expert) and two members of the Syndicate, constituted by the University in terms of Statute 18 of Chapter I2 of 'The Kannur University First Statutes 1998', prepared and published Ext.P4 rank list, wherein the petitioner was placed at Rank No.3, while the respondents 3 and 4 were placed above the petitioner at Rank Nos. 1 and 2 respectively. The above selection proceedings were approved by the Syndicate on 19.05.2011 leading to the appointment of the third respondent ordered on the same date i.e. on 19.5.2011, as borne by Ext.P5(a) and (b) proceedings and the third respondent joined duty on that day itself.
5. According to the petitioner, the course and proceedings pursued by the University are not transparent and not liable to be W.P.(C)Nos.17319 & 22528 OF 2011 4 sustained, being contrary to the actual facts, figures and law. The petitioner, before approaching this Court, sought to procure the necessary materials in support of his claim, which revealed that the third respondent was not holding any administrative position in The Nehru Arts and Science College, where he was working, as borne by Exts.P6(a) and P6(b). Similarly, by virtue of Ext.P7, it has been let known that the third respondent did not have any administrative experience in the management of staff in any University, College, Education Department or similar institution. The alleged administrative experience possessed by the fourth respondent is sought to be rebutted with reference to Ext.P8 information furnished by the Principal of Nirmalagiri College, where the fourth respondent was employed as the Head of the Department (Hindi), to the effect that the experience gained by him as the Co-ordinator of Fine Arts in the college was not reckonable as it was never an administrative post and that there was no employee under his supervision. Based on the above materials, the petitioner seeks to challenge the selection proceedings, also praying for a writ of quo warranto, to show under what authority W.P.(C)Nos.17319 & 22528 OF 2011 5 the third respondent is holding the post of Registrar in the first respondent University and to direct him to vacate the post.
6. The third respondent has filed a counter affidavit contending that the writ petition itself is not maintainable as it is no more open to the petitioner to challenge the selection, after losing the game. It is stated that the third respondent is having all the requisite qualifications and experience as prescribed and further that the interview and selection has been conducted by the Selection Committee in accordance with the relevant norms. The selection proceedings pursued by the Selection Committee were approved by the Syndicate in its next meeting held on 19.05.2011, whereas the writ petition has been filed only on 18.08.2011 and hence it is belated and without bonafides. It is also contended that the alleged administrative experience possessed by the petitioner as NCC Company Commander is not liable to be reckoned as it is not an administrative post. Similarly, functioning as the Head of the Department of a subject also cannot support the case of the petitioner, as it is not a managerial post having supervisory control over the staff of the college; as the W.P.(C)Nos.17319 & 22528 OF 2011 6 appointing authority is none other than the Management and the controlling authority is the Principal.
7. With regard to the basis for selection, it is stated in paragraph 11 of the counter affidavit of the 3rd respondent that, the allegation that the Syndicate had not fixed any criteria for awarding marks by the Selection Committee is absolutely incorrect, as the Syndicate had issued definite guidelines in the matter of awarding marks and that the same is not under challenge. With regard to the alleged bias and undue haste in finalising the selection proceedings by the Syndicate on 19.05.2011 and the joining of duty by the third respondent on the same day, it is stated that the meeting of the Syndicate was in the forenoon and that he was served with the appointment order 'by fax' on the same day and after completing all the formalities such as getting the relieving order from the institution, where he was working, he joined duty as the Registrar in the first respondent University in the afternoon and that there is nothing illegal, improper or irregular in it.
8. The first respondent/University has filed a counter W.P.(C)Nos.17319 & 22528 OF 2011 7 affidavit, seeking to sustain the proceedings particularly, the selection conducted by the Selection Committee on 6.4.2011, the ratification of the proceedings and appointment of the third respondent as per the resolution of the Syndicate on 19.05.2011 and that the third respondent is having all the requisite qualification as desired by the University. It is also stated that the meeting of the Syndicate was not conducted in the afternoon as alleged by the petitioner, but in the forenoon itself; that copy of the appointment order was faxed to the institution, where the third respondent was working on the same day, pursuant to which he got relieved from the said institution and joined the service of the first respondent University in the afternoon of 19.5.2011 itself. It is stated that the Selection Committee was satisfied that the selected candidate was very much having the requisite administrative experience and that the information procured by way of Exts.P6(a), P6(b) and P7 is not correct and of no significance or consequence. It is stated in paragraph 12 of the counter affidavit that, the University has never contended that the petitioner is not qualified; but that on assessing the merit, he could be placed only at Rank No.3, whereas the third respondent, by W.P.(C)Nos.17319 & 22528 OF 2011 8 virtue of better credentials, was placed at Rank No. 1 and was appointed.
9. The fourth respondent has filed a counter affidavit stating that, the third respondent is not duly qualified and that the selection is invalid for the reasons stated in the writ petition. But the claim of the petitioner to be appointed in that place is sought to be rebutted, pointing out that it was the fourth respondent, who should have been selected and appointed in place of the third respondent. Referring to the administrative experience gained by the fourth respondent as the Head of the Department and also by virtue of the duties and responsibilities of the Head of the Department as contemplated in The Kannur University First Statutes [ Ext.R4(a)], coupled with Ext.R4(b) teaching experience, it is contended that the fourth respondent satisfies all the requirements and ought to have been selected to the post in question.
10. The petitioner has filed separate reply affidavits in response to the counter affidavit filed by the first respondent University and that of the third respondent/selected candidate. Along with the reply to the counter affidavit of the first respondent, the petitioner has W.P.(C)Nos.17319 & 22528 OF 2011 9 produced some additional documents, as Exts.P10 to P13. Referring to Ext.P10, the petitioner contends that the guidelines for awarding index marks by the Selection Committee were fixed by the second respondent and not by the Syndicate and that too, on the date of interview i.e. on 6.4.2011. Referring to Ext.P11 Newspaper report, it is stated that the Syndicate of the University could not convene the meeting in the forenoon of 19.5.2011 and it was only in the afternoon, that the selection proceedings were ratified, issuing appointment order on the same day, leading to the relieving of the third respondent from his institution, which is situated nearly 65 Kms. away from the premises of the first respondent University. Referring to Exts.P12 and P13, it is contended that the third respondent had submitted an application for relieving him from the institution in which he was serving much in advance and the proceedings of the Syndicate were subsequently added on, in place of the dotted lines. It is stated that a Fitness Certificate has been obtained from a Primary Health Centre, which is situated about 20 Kms. away and that the PHC would normally function only till 1:00 p.m. It is alleged that there was no chance to W.P.(C)Nos.17319 & 22528 OF 2011 10 have completed all these proceedings within so short time and that the proceedings are manipulated. Referring to Ext.P13, it is contended that the approval of appointment of the Registrar was made by the Syndicate as per Resolution 'No.2011.234' and that it was after the approval of the appointment, that fixation of the criteria as to awarding of index marks by the Selection Committee (ordered by the second respondent and adopted by the Selection Committee) was ratified as per Resolution ' No. 2011.374'.
11. Sri.P.K.Ibrahim, the learned counsel appearing for the petitioner in W.P.(C)No.22528/2011 submits that, the selection proceedings have been finalised in a clandestine manner, leading to appointment of an unqualified hand, that too, without any authority for the Selection Committee to have awarded marks, fixing the norms on the date of interview (as fixed by the second respondent - Chairman of the selection committee). The specific averments raised by the petitioner as to the absence of qualification of the third and fourth respondents and the merit and credentials of the petitioner were asserted much, submitting that, the third and fourth respondents are not W.P.(C)Nos.17319 & 22528 OF 2011 11 having the prescribed administrative experience as contemplated under Ext.P1 notification. It is also pointed out that, the first respondent University is silent in its counter affidavit as to the norms, if any fixed by the Syndicate, which on the other hand came to be fixed by the second respondent/Vice-Chancellor, who is having no authority to fix the same even subject to ratification by the Syndicate. It is also stated that, the power and authority of the second respondent being the Vice- Chancellor of the University, if at all any, can only be by virtue of the emergency clause under Section 11(1) of the Kannur University Act and in the case of the selection proceedings held on 6.4.2011, there was no emergency at all, as Ext.P1 notification was issued as early as on 7.2.2011. As such, it cannot be considered that the Vice- Chancellor/second respondent was exercising any power as delegated by the Syndicate of the University, who is the appointing authority. The selection is sought to be set aside in view of the categoric declaration of law by the Full Bench of this Court in Keshav Mohan v. University of Kerala ( 2009(4) KLT 573 ( F.B.) holding that the Selection Committee does not have any power to fix the norms for W.P.(C)Nos.17319 & 22528 OF 2011 12 awarding the index marks.
12. The learned counsel for the petitioner in W.P.(C) No.17319/2011 virtually supports the contentions raised by the petitioner in W.P.(C)No.22528/2011 and seeks to place reliance on the very same decision rendered by the Full Bench in 2009(4) KLT 573 ( F.B.) ( cited supra). The learned counsel further submits that, selection to the post in question was the subject matter of challenge in W.P.(C)No.9259/2011, wherein Ext.P5 interim order was passed by this Court on 1.4.2011 in the following manner:
" Admit. Urgent notice.
Learned counsel for the petitioners prayed that all further action pursuant to Ext.P5 notification may be kept in abeyance till the writ petition is heard. For filling up the post of register, notifications have been issued. The question to be considered is whether the qualification prescribed by the UGC as modified by the Syndicate by Ext.P9 will govern or the qualification prescribed in the ordinance will govern. The said question has been considered in various decisions of this Court. The W.P.(C)Nos.17319 & 22528 OF 2011 13 matter requires deeper examination.
If the University is proceeding to make the appointment, it is made clear that the appointment will be subject to further orders to be passed in the writ petition and the same will be indicated in the appointment order also."
The learned counsel further submits that, the above interim order was never looked into or given effect to by the University, when the proceedings were finalised leading to the appointment of the concerned respondent as the Registrar, simultaneously asserting that the selected candidate is not a qualified candidate having the requisite experience as notified.
13. Sri.P.C.Sasidharan, the learned counsel for the third respondent/selected candidate, made submissions in terms of the contents of the counter affidavit as to the alleged possession of the requisite qualification and experience as notified vide Ext.P1 and as to the lesser merits of the petitioner and the fourth respondent. The learned counsel submits with reference to the contents of the additional counter affidavit stated as filed by the third respondent, that the W.P.(C)Nos.17319 & 22528 OF 2011 14 decision rendered by the Full Bench in Keshav Mohan v. University of Kerala ( 2009(4) KLT 573 ( F.B.) stands stayed by the Supreme Court in the SLP preferred against the said verdict and hence the same cannot be applied to the case in hand. The learned counsel also submits that, by virtue of the law declared by the Apex Court in Dhananjay Malik v. State of Uttaranchal ( 2008(2) KLT 969(SC) and also in view of the decisions rendered by the Supreme Court in National Institute of Mental Health and Neuro Sciences v. Dr.K.Kalyana Raman and others ( 1992 Supp. (2) Supreme Court Cases 481), University of Cochin, rep. By its Registrar, University of Cochin v. N.S.Kanjoonjamma and others ( 1997(4) SCC 426) and Chandra Prakash Tiwari and others v. Shakuntala Shukla and others ( 2002 (6) SCC 127), the petitioner is virtually estopped from challenging the selection for having participated in the selection process and lost the game. With regard to the challenge raised by the petitioner in W.P.(C) No.17319/2011, the learned counsel for the selected candidate submits that, the said writ petitioner does not have even the 'locus standi' to file the writ petition, as he is not a person who has been included in the W.P.(C)Nos.17319 & 22528 OF 2011 15 rank list and that there is no challenge against the rank list or the guidelines, which came to be issued on 6.4.2011. The learned counsel also refers to the necessity to implead all the persons in the party array with reference to the law declared in Siraj v. High Court of Kerala ( 2006(2) KLT 923(SC).
14. The learned counsel representing the fourth respondent concedes that he has not challenged the selection and appointment of the third respondent. But according to the fourth respondent, the third respondent does not have the requisite qualification, particularly the administrative experience as notified in Ext.P1, whereas the fourth respondent is having all the requisite qualifications and is already placed above the petitioner and hence is liable to be appointed in place of the third respondent.
15. After hearing both the sides, this Court finds that the crucial question to be considered is, whether the selection proceedings finalised by the first respondent leading to the selection and appointment of the third respondent is in conformity with the statutory requirements and the binding judicial precedents in respect of the W.P.(C)Nos.17319 & 22528 OF 2011 16 relevant matters. The question remaining to be considered is as to whether the third respondent/selected candidate is having all the requisite qualifications/experience as notified by the University vide Ext.P1.
16. In support of the prayers sought for in the writ petition, it is seen that the petitioner has raised a specific ground ( 'Ground G') that, the criteria for awarding of marks were formulated only after the date of application and it did not have the approval of the Syndicate. This specific averment/ground has been sought to be rebutted by the third respondent/selected candidate in paragraph 11 of his counter affidavit, stating that the Syndicate of the University had issued definite guidelines in the matter of awarding of marks and that the same is not under challenge. But, coming to the version of the first respondent/University, they have not stated anything in this regard in their counter affidavit . There is no case for the University that the Syndicate of the University had prescribed guidelines for awarding 'index marks' by the Selection Committee to have been followed by the Selection Committee for the interview held on 06-04-2011. W.P.(C)Nos.17319 & 22528 OF 2011 17
17. The petitioner, as per the reply affidavit dated 3.4.2012 filed in response to the counter affidavit of the first respondent, has reiterated that the Syndicate had not made any criteria for awarding marks by the Selection Committee ( paragraph 3). Simultaneously, the petitioner has produced a true copy of the guidelines followed by the Selection Committee for awarding index marks, as Ext.P10. Going by the contents of Ext.P10, it is seen that the said guidelines came to be issued only by the second respondent/Vice-Chancellor, that too on 06.04.2011, ie on the date of interview. Ext.P10 makes a mention that the said guidelines are subject to ratification by the Syndicate. Absence of any specific plea as to the guidelines fixed by the Syndicate, if any, in the counter affidavit filed by the first respondent/University shows it point blank that the petitioner's contention that no guidelines were fixed by the Syndicate/Appointing Authority for awarding marks for the selection to the post of Registrar, is correct. As such, the version of the third respondent in paragraph 11 of his counter affidavit that the Syndicate had formulated clear guidelines in this regard and that the said guidelines have not been challenged by the petitioner is wrong and W.P.(C)Nos.17319 & 22528 OF 2011 18 unfounded. In the absence of any guidelines issued by the Syndicate, no need, necessity or occasion arises for the petitioner to have it challenged.
18. Coming to the correctness and sustainability of Ext.P10 and the authority of the second respondent/Vice-Chancellor to have issued guidelines for fixing the index marks, there appears no doubt for the issuing authority i.e. the Vice-Chancellor that he could not have fixed the same on his own, which made it to be stated in Ext.P10 that, it is subject to ratification by the Syndicate. Apart from the issue whether the second respondent/Vice-Chancellor could have issued such guidelines, it is also to be noted that, there is no case for the respondents that the selection was conducted after getting the ratification of the norms by the Syndicate. The norms were admittedly fixed by the second respondent/Vice-Chancellor on 6.4..2011 and the same is stated as followed by the Selection Committee in the interview held on the same date i.e. on 6.4.2011 itself. Whether it is liable to be sustained is the question ?
19. Going by the pleadings and proceedings, there is no case W.P.(C)Nos.17319 & 22528 OF 2011 19 for the University that the Syndicate had authorised the second respondent/Vice-Chancellor or delegated the power in this regard, to have fixed the guidelines for awarding the index marks. Then the question is whether the power of the second respondent/Vice- Chancellor, if at all any, could be traced/connected to the power provided to meet the emergency situations as contemplated under Section 11(1) of The Kannur University Act, 1996. The said provision reads as follows :
"S.11. Powers and duties of the Vice Chancellor
1) If at any time, except when the Syndicate or the Academic Council is in session, the Vice-Chancellor is satisfied that emergency has arisen requiring him to take immediate action involving the exercise of any power vested in the Syndicate or the Academic Council by or under this Act, the Vice-Chancellor may take such action as he deems fit and shall, at the next session of the Syndicate or the Academic Council, as the case may W.P.(C)Nos.17319 & 22528 OF 2011 20 be, report the action taken by him to that authority for such action as it may consider necessary."
Section 11(1) of the 'Act' as above confers upon the second respondent/Vice-Chancellor only limited power to step into the shoes of the Syndicate so as to meet the need of the hour. It has been made clear by this Court as per the decision reported in Dr.Leelakrishnan v. Cochin University (1997(1)KLT 281) that invocation of the emergency powers by the Vice-Chancellor shall only be in exceptional circumstances. The question is whether such a situation was in existence, when the second respondent/Vice-Chancellor took the decision on 6.4.2011 i.e. on the date of interview ?
20. It is to be noted that the statute does not confer any power or authority upon the Vice-Chancellor to fix the norms for selection to the post of Registrar, for which the appointing authority is none other than the Syndicate. This being the position, it cannot be said that the second respondent/Vice-Chancellor was unaware of the absence of power or as to the necessity to have fixed the relevant norms by the W.P.(C)Nos.17319 & 22528 OF 2011 21 Syndicate/Appointing Authority. Ext.P1 notification inviting application for filling up the post of Registrar was issued as early as on 7.2.2011 and appropriate steps ought to have been taken to see that the norms were got fixed by the Syndicate on time. The interview took place only two months thereafter i.e. on 6.4.2011 and it was only on that day, that the second respondent/Vice-Chancellor chose to fix the norms on his own, of course subject to ratification by the Syndicate. From the sequence of events, it is clear that no situation warranting exercise of power invoking the emergency clause under Section 11(1) of the 'Act' did exist on 6.4.2011, more so, when the Syndicate, who approved the course and events chose to meet and approve the same only about 'six weeks' thereafter i.e. on 19.5.2011, as borne by Ext.P5
(a)/P13.
21. With regard to the question whether the Selection Committee by itself could fix the norms for selection to the post of Controller of Examination of the University of Kerala, had come up for consideration before a Full Bench of this Court in Keshav Mohan v. University of Kerala as reported in 2009(4) KLT 573 (F.B.). The W.P.(C)Nos.17319 & 22528 OF 2011 22 factual position therein was that the Selection Committee consisting of the Vice-Chancellor and two other Syndicate Members, constituted in terms of Clause 25 of the Kerala University First Statute 1977 had fixed the norms for selection. The Controller of Examination was to be appointed by the Syndicate, on the recommendation of the Selection Committee ( as in the case of appointment of Registrar involved in the present case). The University First Statutes did not specify anything as to the norms to be adopted by the Selection Committee and no guidelines were formulated by the Syndicate as well, in this regard. It was in the said circumstance, that the norms were evolved by the Selection Committee itself in the course of conducting the selection, which came to be challenged before this Court. On doubting the correctness of the decision reported in Antony P.A. v. Krishnadas M.N. (ILR 2007(1) Ker.244) (in view of the law declared by the Apex Court in Dr.Krushna Chandra Sahu and Ors. v. State of Orissa (1995(6) SCC 1)), the matter was referred to Division Bench and subsequently, it came to be referred to the Full Bench.
22. The following questions appear to be the major points W.P.(C)Nos.17319 & 22528 OF 2011 23 raised before the Full Bench :
(1) When the norms governing selection are not laid down either in the statutory provisions or administrative instructions, Selection Committee if has power to evolve its own norms for conducting selection ?
(ii) Whether Selection Committee which has been statutorily constituted has no jurisdiction to either relax or vary the norms ?
(iii) If statute which provides for constitution of Selection Committee does not provide for norms for selection, is it open to appointing authority to lay down instructions and guidelines providing for such norms ?
(iv) Is the decision in ILR 2007 (1) Ker. 244 correctly decided ?
After considering the rival contentions, the Full Bench held that the Selection Committee did not have any power to lay down its own norms to conduct the selection, which was exclusively vested with the Syndicate/Appointing Authority. It was observed by the Bench that, in the absence of any statutory provisions to the contrary, the Selection W.P.(C)Nos.17319 & 22528 OF 2011 24 Committee did not have any such inherent jurisdiction or authority to evolve the norms for conducting the selection and that any selection conducted without authority or jurisdiction would stand vitiated. The decision reported in Antony P.A. v. Krishnadas M.N. (ILR 2007 (1) Ker. 244) was overruled and held that, if the statute, which provides for constitution of the Selection Committee does not provide for the norms to be followed by the Selection Committee, it is open for the Appointing Authority ( here, the Syndicate) to lay down the norms/guidelines for the selection and that the Selection Committee will be bound to follow the same. The conclusions are given in paragraph 39, which is extracted below :
"39. Since we have undertaken an elaborate discussion, we consider it appropriate to encapsulate our conclusions :
(1) The selection committee, which has been statutorily constituted, should follow the norms for assessing the merit of rival candidates, if such norms are laid down in the statute. The Selection Committee has no jurisdiction or authority to either W.P.(C)Nos.17319 & 22528 OF 2011 25 relax any of the norms or vary the same.
(2) If the statute which provides for the constitution of the Selection Committee does not provide for the norms for the selection committee, then it is open to the appointing authority to lay down instructions and guidelines providing for such norms.
In such a case, the Selection Committee is bound to follow such administrative instructions in conducting selection.
(3) In cases where the norms governing the selection are not laid down either in the statutory provisions or in administrative instructions, the Selection Committee constituted to conduct selection would not have any inherent jurisdiction or authority to evolve its own norms for conducting the selection. If it evolves its own norms, then its action will be without authority and jurisdiction and selection would be vitiated.
(4) The dictum laid in Antony P.A. v.
Krishnadas M.N.( ILR 2007(1) Ker. 244), which upholds the contrary position does not lay down the W.P.(C)Nos.17319 & 22528 OF 2011 26 correct law and it is hereby overruled."
23. Admittedly, in the instant case, there is no statutory provision with regard to the norms to be followed for allotting index marks by the Selection Committee. It is also a fact that no such guidelines had ever been issued by the Syndicate as on the date of selection, ie on 6.4.2011. If the Selection Committee by virtue of the law declared by the Full Bench did not have the power to prescribe its own norms for selection, how one of the members of the Selection Committee, namely the Chairman, merely by virtue of his being the Vice-Chancellor of the University could stipulate such norms, remains to be a matter of mystery. To say the least, the course and proceedings pursued by the Vice-Chancellor/Selection Committee/University are per se wrong and illegal and contrary to the law declared by the Full Bench of this Court as aforesaid.
24. True, there is a case by the third respondent that the decision rendered by the Full Bench ( cited supra) has not become final as the matter is pending consideration before the Supreme Court and that there is an interim order of stay as well. But pendency of the matter W.P.(C)Nos.17319 & 22528 OF 2011 27 before the Supreme Court or the interim stay granted in the concerned case does not nullify or deface the verdict passed by the Full Bench of this Court and a Single Bench of this Court is always bound by the decision rendered by the Division Bench or the Full Bench as the case may be, unless it is set aside by the Apex Court. This is the law declared by the Division Bench of this Court in Abdu Rahiman v. District Collector, Malappuram (2009(4) KLT 485).
25. With regard to the plea of the third respondent that the petitioner was sitting on the fence and that the writ petition was filed only in August 2011, whereas the selection and appointment was finalised in May 2011, it is to be seen that the selection was admittedly finalised only on 19.5.2011. It is pointed out from the part of the petitioner that, before approaching this Court, he had to collect all the relevant materials in support of his contentions, which was made possible by knocking at the doors of different persons/authorities and even by resorting to the remedy under the RTI Act. Immediately after collecting such materials, the writ petition came to be filed before this Court on 18.6.2012 i.e. well within three months from the date of W.P.(C)Nos.17319 & 22528 OF 2011 28 finalisation of the selection. This Court finds that the writ petition has been filed within reasonable time and hence the challenge raised by the third respondent on this score is repelled.
26. The third respondent has a case that the petitioner is not entitled to maintain this writ petition, having participated in the process of selection and lost the same. Reliance is sought to be placed on Dhananjay Malik v. State of Uttaranchal ( 2008(2) KLT 969(SC) and some other decisions rendered by the Supreme Court ( cited already) . The crux of the submission is that, having unsuccessfully participated in the process of selection without any demur, the candidates are estopped from challenging the selection criterion. The factual position in respect of the case in Dhananjay Malik v. State of Uttaranchal (2008(2) KLT 969(SC) was that, an advertisement was issued on 24.6.2002 by the employer/State for selection and appointment to the post of Physical Education Teachers ( L.T.Grade). The requisite qualification indicated in the advertisement was B.P.E. or Graduate with Diploma in Physical Education. The unsuccessful candidates in the interview challenged the selection on various W.P.(C)Nos.17319 & 22528 OF 2011 29 grounds. One among the grounds was that the advertisement and selection were not in accordance with the Rules ( U.P. Subordinate Educational ( Trained Graduates Grade) Service Rules, 1983). The verdict passed by the learned Single Judge dismissing the writ petitions was set aside and the appeals were allowed, which came to be challenged before the Supreme Court. The Apex Court observed that, the writ petitioners participated in the process of selection knowing fully well that the educational qualification required was clearly indicated in the advertisement itself as 'B.P.E'. or 'Graduate with Diploma in Physical Education'. Having unsuccessfully participated in the process of selection without any demur, it was held that they are estopped from challenging the selection criterion, contending inter alia, that the advertisement and selection with regard to the requisite educational qualification was contrary to the Rules.
27. Coming to the instant case, it is to be noted that the challenge raised by the petitioner is not with regard to any declared fact as to the process of selection at the time of advertisement or even at the time of interview. It was never within the knowledge of the W.P.(C)Nos.17319 & 22528 OF 2011 30 petitioner that the Syndicate had not fixed the norms for selection for awarding the marks for selecting the Registrar. The third respondent/selected candidate was of the idea that such guidelines were specifically prescribed by the Syndicate ( as contended in paragraph 11 of the counter affidavit). But there is no such claim for the University, that the Syndicate had fixed the norms in this regard as on the date of selection. It has been brought to light as per Ext.P10 that, the norms came to be fixed for the first time by the second respondent/Vice- Chancellor on 6.4.2011 i.e. on the date of interview/selection and as such, it can never be presumed that the petitioner had participated in the selection held on 6.4.2011 with the knowledge that the Syndicate had not issued the necessary guidelines. As such, the decision cited by the third respondent in Dhananjay Malik v. State of Uttaranchal (2008 (2) KLT 969(SC) does not come to the rescue of the third respondent to non-suit the petitioner, merely for the reason that he had participated in the selection and hence cannot challenge it any further.
28. The learned counsel for the third respondent submits that, there is absolutely no basis for sustaining the first relief for issuance of W.P.(C)Nos.17319 & 22528 OF 2011 31 a 'writ of quo warranto', as the third respondent has been appointed by the respondent University, pursuant to the selection process conducted by the duly constituted Selection Committee, in terms of the relevant provisions of The Kannur University First Statutes and that the petitioner has assumed the office, pursuant to Ext.P6 appointment order and hence no writ of quo warranto will lie . But it is also to be noted that the petitioner is challenging the selection by way of Ext.P4, P5(a) and P5(b) and has sought to have the same quashed by issuing a writ of certiorari and has questioned the authority of the Selection Committee as to the awarding of marks without the approval of the Syndicate as on the date of selection, as raised in 'Ground G' and elsewhere. The crucial question to be considered is, whether the course and proceedings pursued by the second respondent/Vice-Chancellor and the Selection Committee can be sustained; which cannot but be answered in the 'negative', in view of the law declared by the Full Bench of this Court as per the decision cited supra.
29. Coming to the question with regard to the lack of necessary qualification for the third and fourth respondents, the stand of the W.P.(C)Nos.17319 & 22528 OF 2011 32 University as revealed from their counter affidavit is that, the administrative experience stated as possessed by the selected candidate is enough. But, the more relevant question is, whether the third respondent is having the requisite qualification/experience as notified in Ext.P1. The factual position brought to light as per Ext.P6, P6(a) and P7 in respect of the alleged/claimed experience of the third respondent, stands more against the claim of the third respondent. Ext.P7 Experience Certificate produced by the third respondent showing that the third respondent was functioning as the Head of the Department of Economics, is only with effect from 1.4.2011 i.e after the last date fixed for submitting applications as given in Ext.P1 notification and hence it cannot be of any use for the present selection.
30. Both the petitioner as well as the 4th respondent claim administrative experience, by virtue of their being the Department Heads. The term 'Head of Department' stands defined under Section 2
(g) of The Kannur University First Statutes, 1998; which reads as follows :
" S.2(g) 'Head of Department' means the officer W.P.(C)Nos.17319 & 22528 OF 2011 33 in charge of Department responsible for its administration including its day-to-day working."
The duties and responsibilities of 'Head of the Department' are discernible from the very same set of Statutes ( relevant portion of which has been produced as part of Ext.R4(a)); which reads as follows :
"(b) Duties and responsibilities of Head of the Department - (1) He/she shall function as per the directives issued from time to time by the Principal consistent with the provisions of the Statutes/Ordinances/Regulations.
(2) It shall be his/her duty to ensure the efficient functioning of the department by assigning and supervising work for the teachers and non-teaching staff of the department.
(3) It shall be the duty of the Head of the Department to send a daily report of the work adjustment done, giving suitable substitutions to teachers who are on leave, to the Principal at the beginning of the morning session.
(4) The Head of Department shall maintain W.P.(C)Nos.17319 & 22528 OF 2011 34 the work register and other relevant records concerning the department as per the assignment aforesaid and shall be accountable to the Principal.
(5) It shall be the duty of the Head of the Department to recommend applications for leave submitted by the teaching and non-teaching staff of the department to the Principal forthwith.
(6) It shall be the duty of the Head of the Department to ensure the conduct of terminal examinations, test papers/assignment as scheduled by the University/Principal/Staff Council, and he shall be responsible for the maintenance of all relevant records.
(7) There shall be an annual stock verification as per rules and it shall be conducted during the midsummer vacation and appropriate instruction shall be issued by the Principal and necessary follow-up action shall be taken by the Head of the Department.
(8) It shall be the duty of the Head of the Department to forward an objective assessment of the work and conduct of the staff of his W.P.(C)Nos.17319 & 22528 OF 2011 35 department to the Principal by the last working day of the academic year."
. What are the traits which are to be assessed in the process of interview and upto what level; are matters to be fixed before the process of selection; enabling the Selection Committee to award eligible marks based on such different traits. These norms have to be fixed by the Syndicate/ Appointing Authority, as the University Statutes do not prescribe any such norms.
31. In the instant case, a strange procedure has been followed, whereby one of the members of the Selection Committee i.e. the Chairman of the Committee/Vice-Chancellor, chose to fix the norms to be followed by the Selection Committee on the date of interview, which came to be ratified by the Syndicate much after the selection, on 19.5.2011 and based on the appointment order issued on the same day, the third respondent joined duty on that day itself. It is also seen from Ext.P13 that selection and appointment of the third respondent as the Registrar of the University was approved by the Syndicate as Resolution 'No.2011.234' of the 52th meeting held on 19/05/2011, while W.P.(C)Nos.17319 & 22528 OF 2011 36 the guidelines as to the norms for awarding index marks were fixed by the Vice-Chancellor on 6.4.2011 ( the date of selection) as disclosed from Ext.P10 and it came to be approved by the Syndicate only after approving the selection and appointment of the third respondent, vide Resolution 'No.2011.374'. The incriminating circumstances mentioned by the petitioner as to the course and events, facilitating the third respondent to be selected and to join the service as Registrar, however do not require to be examined by this Court, nor is there any necessity to examine the comparative merits as to the alleged experience possessed by the parties concerned, for the reason that, this Court has already held that the selection conducted by the University is per se wrong and unsustainable. As such, the merits of the candidates have necessarily to be considered by the Selection Committee afresh, based on pre-set norms to be prescribed by the Syndicate/ Appointing Authority and made available to the Selection Committee to be followed in the process of selection.
In the above circumstances, this Court holds that the selection and appointment of the third respondent to the post of 'Registrar' of the W.P.(C)Nos.17319 & 22528 OF 2011 37 first respondent University is not correct or sustainable. Exts.P4, P5(a) and P5(b) are accordingly set aside. The first respondent University is directed to conduct the selection afresh, confining the same to the applicants who responded to Ext.P1 notification, after getting the norms for awarding index marks in the interview fixed by the Syndicate and letting the same known to the Selection Committee well in advance. The process as above shall be completed at the earliest, at any rate within 'three' months from the date of receipt of a copy of this judgment.
Both the writ petitions are allowed. No cost.
P.R.RAMACHANDRA MENON JUDGE sv.
W.P.(C)Nos.17319 & 22528 OF 2011 38