Dr.Smitha Chacko vs State Of Kerala on 1 September, 2022

[Cites 15, Cited by 0]

Kerala High Court

Dr.Smitha Chacko vs State Of Kerala on 1 September, 2022

This writ appeal is directed against the judgment dated 9.12.2021 in W.P.(C) No.28283 of 2021. The appellant was the petitioner in the writ petition. The matter relates to the selection for appointment to the post of Assistant Professor in Hindi in the colleges under the fourth respondent affiliated to the Mahatma Gandhi University (the University).

2. Ext.P4 is the notification issued by the fourth respondent in connection with the selection. The vacancy notified was one. The selection was in accordance with the UGC W.A. No.287 of 2022 -: 4 :- Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 (the Regulations) issued by the University Grants Commission (UGC) in accordance with the University Grants Commission Act. In terms of the Regulations, the candidates shall be short-listed as provided for therein and the selection shall be made based on the performance of the candidates in the interview. The Regulations though state that the overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the applicants based on the weightage given to the performance of the candidate in different relevant parameters based on Tables 1, 2, 3A, 3B, 4 and 5 of Appendix II, it permits the University to adopt the selection procedure through their respective statutory bodies incorporating Tables 1, 2, 3A, 3B, 4 and 5 of Appendix II at the institutional level to be followed transparently in all the selection processes. W.A. No.287 of 2022 -: 5 :-

3. In terms of the notification, the candidates were required to submit applications in the prescribed form disclosing their credentials. The applicants were also directed to indicate the score claimed by them for the various parameters prescribed for short-listing as contained in Table 3B of Appendix II. In the tabular form prescribed for the said purpose, it was indicated that the maximum marks for the interview would be

20. It is seen that the said tabular form was later modified by the University in terms of U.O.No.2999/ACL/2021/MGU dated 30.06.2021. Even in the tabular form introduced in terms of the said order, the maximum marks to be awarded for the interview was fixed as 20. The petitioner as also the eighth respondent applied for selection pursuant to Ext.P4 notification. Ext.P5 is the application submitted by the petitioner on 30.05.2021. The petitioner was issued a communication by the fourth respondent on 16.10.2021 directing her to appear for the interview scheduled on 16.11.2021. Ext.P6 is the said communication. Later on 30.10.2021, the University issued W.A. No.287 of 2022 -: 6 :- Ext.P7 University Order raising the marks to be awarded for the interview to 50 from 20, in modification of U.O.No.2999/ACL/2021/MGU dated 30.06.2021. The split up of the marks to be awarded for the interview are also shown in Ext.P7 University Order, criterion-wise. In terms of Ext.P7, the marks to be awarded for teaching aptitude is 10, for research aptitude is 20, for domain knowledge is 10, for presentation/communication/ discussion skills is 5 and for innovative teaching skills is 5. The interview for the subject selection was conducted in accordance with Ext.P7 University Order and the eighth respondent was selected for appointment against the vacancy notified. Pursuant to the selection, the eighth respondent was appointed and she is working as Assistant Professor in Hindi in Catholicate College, Pathanamthitta under the fourth respondent.

4. The writ petition was instituted challenging Ext.P7 University Order issued by the University as also the selection and appointment of the eighth respondent made as W.A. No.287 of 2022 -: 7 :- provided for in Ext.P7 University Order. The case set out by the petitioner in the writ petition was that the requirements contained in the Regulations are mandatory; that insofar as the Regulations provide for selection solely based on the performance of the candidates in the interview, the parameters for awarding marks for the interview shall not be pre- determined; that the parameters prescribed by the University in terms of Ext.P7 University Order insofar as it relate to teaching aptitude and research aptitude are concerned are all pre- determined and that Ext.P7 University Order, and the selection and appointment of the eighth respondent based on Ext.P7 University Order are therefore bad. It was also the case of the petitioner that Ext.P7 University Order should not have been the basis for the selection as the same was one issued after the commencement of the selection process and therefore the selection should have been conducted keeping the maximum marks to be awarded for the interview as 20.

5. The learned Single Judge dismissed the writ W.A. No.287 of 2022 -: 8 :- petition at the admission stage itself taking the view that the petitioner has not challenged Ext.P7 University Order before participating in the selection process and she is therefore not entitled to challenge the selection made pursuant to Ext.P7. The petitioner is aggrieved by the said decision of the learned Single Judge and hence this appeal.

6. This Court admitted the writ appeal on 28.02.2022. An interim order was also passed on the said day in the matter making it clear that the appointment, if any, made will be subject to the result of the writ appeal.

7. Since the writ petition was dismissed at the admission stage itself, among others, respondents 4 and 5 viz, the Manager of the College as also its Principal filed a joint counter affidavit and the eighth respondent filed a separate counter affidavit. A statement was filed on behalf of the University by its Standing Counsel.

8. The stand taken by the University in the statement is that insofar as Ext.P7 Order was issued by the W.A. No.287 of 2022 -: 9 :- University prior to the interview, the Selection Committee was bound to follow the same for the selection and that Ext.P7 University Order is one issued in accordance with the Regulations.

9. The stand taken by respondents 4 and 5 in the joint counter affidavit was that the directions contained in the Regulations concerning the selection are directory and not mandatory and that Ext.P7 University Order is one that conforms to the requirements in the Regulations. More or less, the very same stand was taken by the eighth respondent in the counter affidavit filed by her.

10. Heard the learned counsel for the petitioner, the learned Standing Counsel for the University, the learned counsel for the Principal and the Manager of the College as also the learned counsel for the eighth respondent.

11. The learned counsel for the petitioner reiterated the stand of the petitioner that Ext.P7 University Order is not one conforming to the requirements in the W.A. No.287 of 2022 -: 10 :- Regulations. The learned counsel elaborated the said stand pointing out that the scheme of the Regulations is that the parameters included in Table 3B of Appendix II are only for short-listing the candidates for the interview and the selection shall be solely based on the performance of the candidates in the interview. It was contended by the learned counsel that the instructions in Ext.P7 Order would defeat the very purpose of the interview inasmuch as it provides that 30 marks out of 50 marks earmarked for the interview shall be awarded on pre- determined criteria. It was argued by the learned counsel that the performance in the interview is fundamentally different from assessing a candidate based on "pre-determined criteria"

such as teaching experience, publications etc. According to the learned counsel, the purpose of a viva voce test is to assess the overall intellectual and personal qualities of the candidates and the said purpose will not be achieved if marks are awarded for interview on the basis of pre-determined criteria. It was also submitted by the learned counsel that in the light of the W.A. No.287 of 2022 -: 11 :- elaborate provisions contained in the Regulations, it was mandatory on the part of the Selection Committee to assess the teaching and research aptitude of the candidates at the time of interview and there was no assessment of the same at the time of interview. It was also argued by the learned counsel that in terms of the University Order issued prior to the date of selection, only 20 marks was directed to be awarded for the interview and the same was changed after the commencement of the selection process to 50 marks to the prejudice of the candidates. According to the learned counsel, it is a clear case where rules of the selection were altered during the selection process and the selection is liable to be set at naught on that ground as well. As regards the view taken by the learned Single Judge to dismiss the writ petition at the admission stage itself, it was argued by the learned counsel that participation in an interview does not prevent a candidate from challenging the illegality in the selection process and the learned Single Judge, in the circumstances, was not justified in dismissing the writ W.A. No.287 of 2022 -: 12 :- petition on that ground. The learned counsel has relied on various decisions in support of the submissions made by him, which we are not referring now as we propose to deal with the same elaborately while dealing with the arguments advanced by him.

12. The learned Standing Counsel for the University though pointed out that Ext.P7 University Order has been altered later with trivial modifications as per Annexure A1 order produced by the University in the statement filed in the appeal, he conceded that there is no change in the said order insofar it relates to the parameters prescribed for awarding marks in the interview. According to the learned Standing Counsel, Ext.P7 and Annexure A1 have been issued in strict adherence to Tables 1, 2, 3A, 3B, 4 and 5 of Appendix II to the Regulations. It was asserted by the learned Standing Counsel that the criteria mentioned in Ext.P7 are sufficient to make an assessment of the teaching and research aptitude of the candidates. Placing reliance on the decisions of the Apex Court in University of W.A. No.287 of 2022 -: 13 :- Mysore v. C.D. Govinda Rao, AIR 1965 SC 491 and in Thariq Islam v. Aligarh Muslim University, (2001) 8 SCC 546, the learned Standing Counsel contended that prescription of criteria for awarding marks in an interview for selection for appointment to teaching posts is purely an academic matter and the courts should respect the decisions taken by the academicians and experts in the field. The learned Standing Counsel has also relied on the decision of this Court in Gijo Ittoop (Dr.) v. Kerala University of Fisheries, 2018(3) KLT 1008, for the said purpose.

13. The learned counsel for the Principal of the College and the Manager of the Educational Agency supported the arguments advanced by the learned Standing Counsel for the University pointing out that the educational agencies running colleges affiliated to the University are bound by the various orders issued by the University. It was conceded by the learned counsel that the selection in the case on hand was conducted in accordance with the directions issued by the W.A. No.287 of 2022 -: 14 :- University in Ext.P7 University Order. In addition, it was also argued that the selection conducted in accordance with the stipulations in Ext.P7 cannot be said to be against the provisions in the Regulations. The learned counsel has elaborated the said submission pointing out that in terms of the Regulations, the University is free to prescribe the norms for awarding marks for the interview, having regard to the various parameters mentioned in the tables in Appendix II to the Regulations. It was also pointed out by the learned counsel that though there is an illustration in Clause 6.0 (i) of the Regulations providing that the University may assess the ability for teaching and/or research aptitude through a seminar or lecture in a classroom situation or discussion on the capacity to use the latest technology in teaching and research at the interview stage, the said clause is only illustrative and cannot be understood to be mandatory. It was also argued by the learned counsel that at any rate, the said stipulation applies only for selection for appointment in the University W.A. No.287 of 2022 -: 15 :- Departments and colleges under the Universities and not to private colleges. It was also argued by the learned counsel that the conduct of the interview in accordance with Ext.P7 University Order will not amount to changing the rule of the game after the commencement of the game. It was also argued by the learned counsel strenuously and persuasively that having participated in the selection process, the petitioner is precluded from challenging the selection. One of the decisions relied on by the learned counsel for the petitioner to bring home the contrary proposition was the decision of the Apex Court in Dr(Major)Meeta Sahai v. State of Bihar, (2019) 20 SCC 17. According to the learned counsel, the decision of the Apex Court in Meeta Sahai would apply only to cases where candidates allege misconstruction of statutory rules and the same does not apply to a case of the present nature.

14. The learned counsel for the eighth respondent supported the submissions made by the University as also the Manager and Principal of the College. In addition, it was also W.A. No.287 of 2022 -: 16 :- argued that since Ext.P7 University Order which is under challenge in the writ petition was modified in terms of Annexure A1 order, the petitioner should have challenged Annexure A1 order also, if at all any relief is to be given to the petitioner. It was also argued by the learned counsel that the petitioner has not made out a case of prejudice and as such, even assuming that there is deviation from the provisions contained in the Regulations in the matter of conducting the selection, the petitioner is not entitled to the reliefs claimed.

15. On a query from the court, the learned Standing Counsel for the UGC clarified that the stipulation in Clause 6.0(i) of the Regulations would apply not only for selection for appointment to the teaching posts in the Universities and the institutions under it, but also to private colleges affiliated to the Universities.

16. We have anxiously examined the arguments advanced by the learned counsel for the parties on either side.

17. The questions that arise for consideration in the W.A. No.287 of 2022 -: 17 :- light of the submissions made by the learned counsel for the parties are the following:

i) Is the petitioner precluded from challenging the selection merely for the reason that she has not challenged Ex.P7 University Order before participating in the interview?

ii) Is the petitioner precluded from challenging the selection merely for the reason that she has participated in the interview and failed in it?

iii) Is the selection conducted based on Ext.P7 University Order issued after the issuance of Ext.P4 notification illegal?

iv) Can Ext.P7 Order of the University be said to be one not in conformity with the Regulations?

18. Question (i): As noted, Ext.P4 notification for the selection was issued on 05.05.2021. The petitioner has applied for selection pursuant to the said notification on 30.05.2021. She was called upon to appear for the interview W.A. No.287 of 2022 -: 18 :- scheduled on 16.11.2021. It is in the meanwhile on 30.10.2021, Ext.P7 University Order was issued by the University. The view taken by the learned Single Judge was that it was necessary for the petitioner to challenge Ext.P7 University Order before participating in the interview. Let us first deal with the sustainability of the said view. The specific case of the petitioner is that inasmuch as the stipulation as regards the marks to be awarded for the interview prevailing at the time of issuing the notification was 20 and inasmuch as the petitioner was informed about the same by making appropriate provisions in the application form, the same should not have been altered without notice to her. As per the said order, the maximum marks to be awarded for the interview was only 20 and not 50 as provided for in Ext.P7 University Order. The relevant averment in paragraph 7 of the writ petition reads thus:

"7. Exhibit P7 that came into force during the selection process cannot be applied for selection process that is already initiated. Exhibit P5 application itself stipulated that the marks fixed for interview is only 20. In other words, the 20 marks are intended only to cover 'the performance in the W.A. No.287 of 2022 -: 19 :- interview'. Having invited applications (Exhibit P5), wherein it is specified that the marks for interview is only 20, and after issuing Exhibit P6 interview call letter on 16-10-2021, the petitioner ought to have been given prior information about Exhibit P7 and changes in the interview pattern. Petitioner was under the bona fide impression that the interview would be only for 20 marks and had prepared accordingly. Change in the interview pattern was never made known to the petitioner."

Leave alone the question as to the acceptability of the said case of the petitioner, inasmuch as such a case was set out by the petitioner in the writ petition, according to us, it is unnecessary for the petitioner to challenge Ext.P7 University Order, for the question raised was not whether Ext.P7 University Order is sustainable in law, but whether Ext.P7 Order could be made applicable for the subject selection. True, when it has come out after the interview that what was applied for the interview was Ext.P7 University Order and not the order prevailing at the time of the notification, the petitioner has raised a contention that Ext.P7 University Order is bad inasmuch as it is not one issued in conformity with the Regulations as well. Therefore, answering W.A. No.287 of 2022 -: 20 :- the question on hand, it was not obligatory for the petitioner to challenge Ext.P7 University Order before participating in the interview, for no one has a case that the petitioner was informed that the interview would be conducted in accordance with Ext.P7 University Order. On the other hand, as noted, the specific case of the petitioner was that she had not been informed that the interview would be in accordance with Ext.P7 University Order. Needless to say, the petitioner is not precluded from challenging the selection merely for the reason that she has not challenged Ex.P7 University Order before participating in the interview. The question is answered accordingly.

19. Question (ii): The principle of estoppel prevents those who participate in a selection and fail in it, from challenging the selection. The underlying object of the principle is to prevent candidates from trying another shot of consideration and to avoid an impasse wherein every disgruntled candidate having failed in the selection, challenges W.A. No.287 of 2022 -: 21 :- it in the hope of getting a second chance. But the Apex court has clarified in Dr.(Major) Meeta Sahai (supra) that a candidate who is participating in a selection process is only accepting the prescribed procedure and not the illegality in it, for the constitutional scheme is sacrosanct and its violation in any manner is impermissible. Paragraph 17 of the said judgment reads thus:

"17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process."

The decision aforesaid has been followed by this court in Razia K.I. (Dr.) v. University of Kerala, Tvm, 2022 (2) KHC 623. Paragraphs 9 and 10 of the said judgment read thus : W.A. No.287 of 2022 -: 22 :-

"9. Having considered the rival contentions, we are of the firm view that the dismissal of the writ petition on the solitary ground of participating the selection process was clearly wrong and liable to be interfered with. Simply because the appellant has participated in the selection process did not mean that the appellant had acquiesced to the illegality in the selection process. (See DR (Major) Meeta Sahai v. State of Bihar and Others [(2019) 20 SCC 17]). The petitioner essentially questioned the award of excessive marks in the interview to the 4th respondent, which the appellant could have been aware only after the selection of the 4th respondent and the same is the cause of action herein for challenging the selection process. Thus the award of marks without any basis is a matter which the appellant could have challenged and no principal of estoppel prevents the appellant from questioning the same.

10. It is trite that the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegalities committed in a selection process. It is also relevant to note that it cannot be possible for a candidate to have locus to assail an illegality or an infringement of the provisions of the Constitution that happens in a selection process unless there is participation in the same."

As explicit from the extracted paragraphs, this Court has reinforced the said proposition stating that a candidate may not W.A. No.287 of 2022 -: 23 :- have locus standi to challenge the illegality in a selection process unless he/she participates in the selection process. The argument advanced by the learned counsel for the Principal and the Manager of the college in this regard is that the decision in Dr.(Major) Meeta Sahai (supra) would apply only to cases where candidates allege misconstruction of statutory rules. We are unable to agree. Reference to misconstruction of statutory rules in the judgment is only illustrative and the dictum of the case is that a candidate who is participating in a selection process is not accepting the illegality in the selection process and he/she is free to challenge the same if there is any illegality affecting the constitutional rights of the participant. Reverting to the facts, the petitioner is challenging the selection on two grounds viz, that Ext.P7 University Order ought not have been the basis for the interview, and even if it is found that the interview could have been conducted based on the said order, the selection is bad inasmuch as Ext.P7 is not one conforming to the requirements of the Regulations. In other words, the W.A. No.287 of 2022 -: 24 :- challenge against the selection is on the ground that the procedure adopted was illegal. In the circumstances, we are of the view that the petitioner is not precluded from challenging the selection merely for the reason that she has participated in the interview and failed in it. The question is answered accordingly.

20. Question (iii): The fact that the maximum marks to be awarded for the interview at the time of notification was 20 is not disputed. It is after the candidates were called upon to appear for the interview that the University has modified the said prescription and a different assessment criteria and methodology was adopted in terms of Ext.P7 University Order. While the earlier order prescribes 20 marks for the interview without indicating any specific heads for awarding the same, Ext.P7 University Order not only raises the maximum marks to be awarded for the interview to 50, but also prescribes the different heads under which the said 50 marks are to be awarded. The question is whether it is permissible for W.A. No.287 of 2022 -: 25 :- the University to change the criteria for awarding marks for the interview after the commencement of the selection process. The petitioner asserts that it is not permissible for the University to change the maximum marks to be awarded for the interview in a selection process after the commencement of the selection process without informing the candidates about the change brought in. The argument advanced by the learned counsel for the petitioner in this regard is that the principle that the rules of the game cannot be altered after the commencement of the game, applies squarely to a situation of this nature.

21. While considering the applicability of the principle that the rules of the game cannot be changed after the commencement of the game to the case on hand, one has to keep in mind that unlike cases where selection is to be made based on the performance of the candidates in the written test as also in the viva voce test, the case on hand is one where the selection has been made solely based on the performance of W.A. No.287 of 2022 -: 26 :- the candidates in the interview. Similarly, while considering the said question, one has to keep in mind that in terms of the stipulations which were in force at the time of notification, the criteria on which marks would be awarded in the interview were not indicated. In the absence of any statutory prescription as to the maximum marks to be awarded for the interview and also as to the various criteria for awarding the prescribed marks, according to us, the appointing authority would be at liberty to decide the maximum marks to be awarded for the interview and evolve appropriate criteria for awarding the prescribed marks. In other words, in a case of the nature referred to above, if the appointing authority wants to fix a higher score of marks for the interview and prescribe different criteria for awarding the same, the appointing authority is free to do so, for ultimately the selection is one intended for their benefit. In a similar situation, in Yogesh Yadav v. Union of India, (2013) 14 SCC 623, the Apex Court has held that this will not amount to changing the rules of the game. Yogesh Yadav was a case W.A. No.287 of 2022 -: 27 :- where, after the written test and the interview stipulated in the notification, a decision was taken to give appointment only to those candidates who secured a particular minimum percentage of marks. A similar situation was dealt with by a Division Bench of the Punjab and Haryana High Court in Harsimranjit Kaur v. Union of India, 2015 SCC OnLine P&H 13207. That was a case where before the commencement of the interview, the Selection Committee got the criteria for selection approved from the appointing authority with a view to minimize the human intervention in adjudging the suitability and to make the selection process more objective. It was held that the same does not amount to changing the rules of the game, for all the candidates short-listed for interview would be adjudged uniformly on the subject criteria. Paragraphs 5 and 6 of the said judgment read thus:

"5. In our considered view, the prescription of marks for higher education or better experience or the knowledge in computer is an endeavour to select the most merited candidate. The Selection Committee has got the criteria approved from the Appointing Authority before the W.A. No.287 of 2022 -: 28 :- commencement of interview. Such a criteria would indeed minimize the human intervention in adjudging suitability and will make the selection process more objective.

6.It does not amount to changing the rules of game for the reason that the eligibility of the candidates has not been affected. They are still in the zone of consideration and all the short-listed candidates including the petitioner would be adjudged on uniform applicability of the subject criteria. The advantage sought to be given to a candidate with better qualification, experience or skilled knowledge in Computer is to promote the merit in a totally non-discriminatory manner. It violates no right of a candidate who lacks such higher qualification or experience".

Reverting to the facts, the Regulations give only a broader idea of the criteria and it leaves to the concerned University to precisely fix the criteria for the interview having regard to the broad criteria specified in the Regulations. In other words, in the case on hand, the University was well within its authority to fix the criteria for the interview any time before the interview, having regard to the parameters specified in Appendix II. That apart, the maximum marks prescribed by the University to be awarded in the interview in a case where the selection is solely W.A. No.287 of 2022 -: 29 :- based on their performance in the interview does not affect in any manner the rights, if any, of the participants, much less their constitutional right to equal treatment. The maximum marks to be awarded for the interview in such cases would remain to be a matter within the exclusive domain of the employer to be fixed for the purpose of finding out the best suitable candidate in the selection. If it is taken that the University is free to fix the maximum marks to be awarded in the interview and the criteria under which the said marks are to be awarded, in a case where the performance in the interview is the sole basis for the selection, the question that remains to be considered is as to whether there is any illegality in applying the modified criteria in the selection process commenced prior to the modification. As noted, the argument advanced by the learned counsel for the appellant is based on the principle that the rules of the game shall not be changed after commencement of the game. The said principle is one evolved based on the doctrine of equality adumbrated in our W.A. No.287 of 2022 -: 30 :- constitutional scheme, and same will not have any application in cases where none of the rights of the participants, much less their constitutional rights, are affected on account of the procedure which is impugned in the proceedings. Again, the petitioner has no case that any prejudice has been caused to her on account of the said change. If at all there was any prejudice, all participants in the selection process would have been subjected to the same prejudice and the petitioner cannot contend that there is infringement of any of her rights. We are fortified by the aforesaid stand also for the reason that the question whether the principle not to permit the State or its instrumentalities to tinker with the rules of recruitment after the commencement of the recruitment process in order to avoid manipulations in the recruitment process would stand in the way of conducting a more rigorous selection to protect the interests of the establishment, is referred to a larger Bench for consideration by a three Judge Bench of the Apex Court in Tej Prakash Pathak v. Rajasthan High Court, (2013) 4 SCC W.A. No.287 of 2022 -: 31 :-

540.

22. The learned counsel for the petitioner relied on the decision of the Apex Court in K.Manjusree v. State of A.P., (2008) 3 SCC 512, in support of the proposition that the selection is vitiated on account of the introduction of Ext.P7 norms after the commencement of the selection process. Manjusree (supra) is a case where the question was whether, in the absence of any prescription in the rules governing the appointment as regards the minimum marks for the interview, a minimum cut off mark for interview could be prescribed after completion of the selection process. The said question was answered by the Apex Court holding that introduction of the requirement of minimum marks for interview after the entire selection process consisting of written examination and interview was completed, would amount to changing the rules of the game after the game was played and that the same is impermissible. The said decision also has no application to the facts of the present case. Further, it is the dictum in the said W.A. No.287 of 2022 -: 32 :- case that was doubted and referred to the larger Bench by the Apex Court in Tej Prakash Pathak.

23. Another decision cited by the learned counsel for the petitioner is the decision of the Apex Court in Bishnu Biswas v. Union of India, (2014) 5 SCC 774. Bishnu Biswas is a case where the rule provided for 50 marks for the written test and 20 marks for the interview. The marks for the interview was altered after the commencement of the selection process to 50. The change brought about enabled persons who secured low marks in the written examination to come out successful in the selection process by securing more marks in the interview. The rule was applied in the said case. The said judgment, according to us, has no application to the facts of the present case. That apart, in Srinivas K. Gouda v. Karnataka Institute of Medical Sciences, (2022) 1 SCC 49, the Apex Court did not accept the argument based on the decision in Bishnu Biswas that bifurcation of marks in the interview under different heads after the commencement of the selection W.A. No.287 of 2022 -: 33 :- process would amount to changing the rules of the game after the process had begun.

24. In short, we are of the view that the selection conducted based on Ext.P7 University Order issued after the notification was not illegal. The question is answered accordingly.

25. Question (iv): The fact that the University is one which is receiving grants from the University Grants Commission (the UGC) is not in dispute. As such, the selection impugned in the writ petition was one to be conducted in accordance with the provisions contained in the Regulations. There is no dispute to this fact as well. Regulation 1.3 of the Regulations provides that if any University contravenes the provisions therein, the UGC may withhold from the University the grants proposed to be made out of the fund of the UGC. The relevant provision reads thus:

"If any university contravenes the provisions of these Regulations, the Commission after taking into consideration the cause, if any, shown by the University for such failure or W.A. No.287 of 2022 -: 34 :- contravention, may withhold from the University, the grants proposed to be made out of the Fund of the Commission."

The extracted provision would show beyond doubt that the requirements in the Regulations, unless otherwise provided for, are mandatory in nature.

26. As noted, as far as the selection for appointment to the post of Assistant Professor is concerned, the provision in the Regulations is that the applicants shall be short- listed based on their academic score specified in Table 3B of Appendix II and the selection shall be solely based on the performance of the candidates in the interview. The said stipulation contained in Clause 4.1 reads thus:

"Note: The Academic score as specified in Appendix II (Table 3A) for Universities, and Appendix II (Table 3B) for Colleges, shall be considered for short-listing of the candidates for interview only, and the selections shall be based only on the performance in the interview."

Table 3B dealing with the criteria for short-listing the candidates for interview reads thus:

Table: 3 B Criteria for Short-listing of candidates for Interview for the Post of W.A. No.287 of 2022 -: 35 :- Assistant Professors in Colleges S. Academic Record Score N. 1 Graduation 80% & Above 60% to less 55% to 45% to less = 21 than 80% = 19 less than than 55% 60% =16 =10 2 Post-Graduation 80% & Above 60% to less 55% (50% in case of = 25 80% = 23 SC/ST/OBC (non-

creamy layer)/PWD) to less than 60% = 20 3 M.Phil. 60% & above 55% to less than 60% = 05 = 07 4 Ph.D. 25 5 NET with JRF 10 NET 8 SLET/SET 5 6 Research 6 Publications (2 marks for each research publications published in Peer-

Reviewed or UGC-

listed Journals) 7 Teaching/Post 10 Doctoral Experience (2 marks for one year each)# 8 Awards International/National '03 Level (Awards given by International Organisations/ Government of India recognised National Level Bodies) State-Level (Awards '02 given by the State Government) # However, if the period of teaching/post-doctoral experience is less than one year then the marks shall be reduced proportionately. W.A. No.287 of 2022 -: 36 :- The Regulations categorically provide that the selection procedure and the assessment criteria and methodology for selection shall be as specified in the Regulations. The relevant portion reads thus:

"The constitution of the Selection Committees and Selection Procedure as well as the Assessment Criteria and Methodology for the above cadres, either through direct recruitment or through Career Advancement Scheme, shall be in accordance with these Regulations."

The Regulations permit the universities concerned to adopt a selection procedure through their respective statutory bodies incorporating Appendix II, Tables 1, 2, 3A, 3B, 4 and 5 at the institutional level. Clause 6.0 of the Regulations dealing with the same reads thus:

"6.0 SELECTION PROCEDURE:

I. The overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the applicants based on the weightage given to the performance of the candidate in different relevant parameters and his/her performance on a grading system proforma, based on Appendix II, Tables 1, 2, 3A, 3B, 4, and 5.

W.A. No.287 of 2022 -: 37 :-

In order to make the system more credible, universities may assess the ability for teaching and/or research aptitude through a seminar or lecture in a classroom situation or discussion on the capacity to use the latest technology in teaching and research at the interview stage. These procedures can be followed for both the direct recruitment and the CAS promotions, wherever selection committees are prescribed in these Regulations.

II. The universities shall adopt these Regulations for selection committees and selection procedure through their respective statutory bodies incorporating Appendix II. Table 1, 2, 3A, 3B, 4, and 5 at the institutional level for University Departments and their Constituent colleges/ affiliated colleges (Government/Government- aided/Autonomous/ Private Colleges) to be followed transparently in all the selection processes. The universities may devise their own self-assessment-cum- performance appraisal forms for teachers in strict adherence to the Appendix II, Table 1, 2, 3A, 3B, 4, and 5 specified in these Regulations."

It is in the light of the provisions aforesaid that the University issued Ext.P7 University Order laying down the assessment criteria for selection for appointment to the post of Assistant Professor. The relevant portion of Ext.P7 University Order reads W.A. No.287 of 2022 -: 38 :- thus:

ORDER The UGC has notified the Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education,2018 vide paper read (1). Further University has implemented the said Regulations vide paper read (2).

Clause 4.1 of the UGC REGULATIONS read as (1) above stipulates that "The Academic score as specified in Appendix II (Table 3A) for Universities, and Appendix II (Table 38) for Colleges, shall be considered for short-listing of the candidates for interview only, and the selections shall be based only on the performance in the interview."University had already issued guidelines and academic score sheet for the purpose of selecting meritorious candidates to the post of Assistant Professor in University Academic Schools/Departments and Affiliated Colleges in accordance with the UGC Regulations 2018 vide paper read as (3),(4) and (5).

However, it has come to the notice that the UGC Regulations stipulates academic score sheet only for the purpose of short listing of the candidates (both open & reservation posts) for interview only, and the selection shall be based only on the performance of the candidate in the interview. W.A. No.287 of 2022 -: 39 :-

1. Separate academic score sheets have already been approved and issued for the purpose of shortlisting candidates to both University academic Departments /Schools and affiliated Colleges. However, the total score i.e. 100 may be considered only for short listing of candidates.

2. In the case of University academic departments /Schools, The applicants shall be shortlisted for the interview based on the Academic Score detailed above. Fifteen (15) candidates may be shortlisted category wise (open or reserved) for each vacant post of Assistant Professor. For every additional vacant post in the same category ten (10) more candidates per vacancy may be added to this list. While setting the cut off score in this manner, if there are more candidates with same academic score that equals this cut off score, all such candidates shall also be included in the list of shortlisted candidates for interview.

3. If the total number of eligible candidates is less than 15 for 'open' or 'reserved' post, all those candidates belonging to that category may be shortlisted for interview.

4. All the eligible candidates short listed as per the above criteria may be called for interview.

5. In the case of affiliated colleges, the number of candidates to be short listed for interview may be decided by the college concerned. It is suggested that W.A. No.287 of 2022 -: 40 :- the college may adopt the procedure formulated for the selection of assistant professors in University academic Departments/Schools as detailed above. However, while short listing candidates for interview a minimum of 10 candidates may be short listed for each post and the maximum number may be decided by the college concerned. If the number of applicants is less than 10, all eligible applicants may be called for interview." The Maximum marks fixed for the interview shall be Fifty (50) and the split up of marks to be awarded in the interview may be based on the following components as envisaged in the UGC regulations:

Teaching Aptitude Teaching Experience-1 mark per year of teaching experience (in the case of teaching experience in guest/contract/temporary 5 positions, service shall be counted only after acquiring minimum qualifications stipulated by the UGC for the post of assistant professor*) a. Proficiency in ICT enabled teaching practices as evident from e-

content developed and published in a UGC Information Network (UGC INFONET)/EMMRC/Consortium for Educational Communication (CEC) Website @ 2.5 marks per module of the e- 5 content. Innovative teaching practices as evident from new technologies/programmes like MOOC programmes uploaded in SWAYAM platform of UGC/participation of LMS/CMS for Universities and other higher education institutions/Virtual laboratory-remote laboratory development etc @ 2.5 marks per programme/content/virtual laboratory Sub Total 10 Research Aptitude All subjects except Languages Languages W.A. No.287 of 2022 -: 41 :- Research Publications Research publications in UGC with impact factor CARE-listed Journals-Sole author above 5.00 @ 2 marks @ 2 marks per paper per paper** Research Publications Research publications in UGC 12 10 with impact factor CARE- listed Journals with above 2.00@1 mark per multiple authors @ 1 mark per paper** paper for first author/ corresponding authors and 0.5 marks for other authors Publications with impact Research publications in Other factor below 2.00 in recognized journals@ 0.5 mark Clarivate's Web of per paper Science/Scopus indexed/UGC CARE-

       b.   listed   Journals@   0.5
            mark per paper**
            Papers    published    in         Papers        published       in 2
            proceedings (with ISSN            proceedings (with ISSN No.) of
            No.)                   of         International/National Seminars/
            International/National    2       Conferences       funded     by
            Seminars/Conferences              UGC/CSIR/DRDO/DBT/DST/ICAR/
            funded                 by         ICSSR and similar organizations/
            UGC/CSIR/DRDO/DBT/DS              Departments @ 0.5 marks per
            T/ICAR/ICSSR                      paper
            and               similar
            organizations/
            Departments     @     0.5
            marks per paper
            International Patents @           International Patents @ 3 marks 3
            3 marks per patent Post 3         per     patent/Post     Doctoral
            Doctoral Fellowships @            Fellowships @ 1.5 marks for
            1.5 marks for each year           each year
            Books/Chapters         in         Books/Chapters      in     edited
            edited books/ Invited             books/invited      key       note
            key                  note         address/plenary talk in the
            address/plenary talk in           relevant area @1 mark per
            the relevant area @1 3            book/ chapters in edited books / 5
            mark per book/ chapters           0.5 mark per invited key note
            in edited books /0.5              address/plenary       talk      in
            mark per invited key              International        Conference/
            note     address/plenary          Institutes      of       National
            talk  in    International         International reputation***
            Conference/Institutes of
            National/ International
            reputation***
            Sub Total                                                            20
 W.A. No.287 of 2022                       -: 42 :-




             Domain Knowledge
       c.

Interaction on domain knowledge with the selection committee 10 members Sub Total 10 Presentation /Communication/Discussion Skills 5 Innovative Teaching skills (Knowledge in using innovative 5 d.

teaching techniques) Sub Total 10 Total (a+b+c+d) 50 *Certificate in proof of teaching experience should be in specified format issued by the Manager of the institution affiliated to any of the Universities accompanied by documentary evidences such as appointment as examiner by the University **Impact factor as indexed by Clarivate's Web of Science/Scopus only may be considered. ***Books of national/international publishers with ISBN number may only be considered. Key note address/plenary talk in International conference/symposia funded by agencies like UGC/CSIR/DRDO/ICAR/ICSSR/DST/DBT/State agencies may only be considered

6. Existing norms and rules may be followed for the appointment after the completion of the selection process based on the above criteria in the case of University academic Departments/Schools.

7. Following procedures shall be followed by the educational agency in the case of affiliated colleges:

i. Individual scoring sheets may be obtained from each member of the Selection Committee for marking scores of each short listed candidate (duly signed by the member) which may be consolidated to arrive at the final score. The final score sheet may be prepared and signed by all the members of the Selection Committee.

ii. Rank lists based on the scores obtained in the interview W.A. No.287 of 2022 -: 43 :- as detailed above may be published in the website of the institution concerned within one week after the completion of the interview process.

iii. The academic score sheets of all the eligible candidates and the interview score sheets of the short listed candidates duly signed by the Selection Committee members may be forwarded to the University along with the rank list and proceedings of the selection committee within one month after the publication of rank list.

iv. The entire process of interview may be recorded and the certified digital copies of the audio-video footage may be submitted to the University along with the proposal for approval of the initial appointment.

8. The score sheets stipulated in UGC Regulations on minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 as Appendix II - Table 3A (Universities) and 3B(Colleges) may be used for screening and calculation of academic score.

9. The above guidelines / regulations may be implemented w.e.f. 1st November 2021.

Hon. Vice Chancellor exercising the powers of the Academic Council conferred under section 10 (17) of the W.A. No.287 of 2022 -: 44 :- Mahatma Gandhi University Act, 1985 has approved the minutes of the Standing Committee of the Academic Council vide paper read as (6).

The orders read as (3), (4) and (5) hereby stands modified.

Orders are issued accordingly."

The dispute essentially is as to whether the assessment criteria adopted by the University in terms of Ext.P7 University Order are in conformity with the requirements in the Regulations and it is in this context the question aforesaid is framed.

27. As rightly pointed out by the learned counsel for the petitioner, performance of a candidate in an interview is fundamentally different from assessing him/her based on a pre- determined criteria. The reason being that while a written examination assesses the knowledge of the candidate and his intellectual ability, a viva voce test seeks to assess his overall intellectual and personal qualities. While written examination has certain distinct advantages over the viva voce test, there are yet no written test which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, co- W.A. No.287 of 2022 -: 45 :- operativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decisions, ability to lead, intellectual and moral integrity etc. This position has been explained by the Apex Court in Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417. Paragraph 24 of the said judgment reads thus:

"24. It is now admitted on all hands that while a written examination assesses the candidate's knowledge and intellectual ability, a viva voce test seeks to assess a candidate's overall intellectual and personal qualities. While a written examination has certain distinct advantages over the viva voce test, there are yet no written tests which can evaluate a candidate's initiative, alertness, resourcefulness, dependableness, cooperativeness, capacity for clear and logical presentation, effectiveness in discussion, effectiveness in meeting and dealing with others, adaptability, judgment, ability to make decision, ability to lead, intellectual and moral integrity. Some of these qualities can be evaluated, perhaps with some degree of error, by viva voce test, much depending on the constitution of the interview board."

The position aforesaid has been reiterated by the Apex Court in Taniya Malik v. High Court of Delhi (2018) 14 SCC 129, in W.A. No.287 of 2022 -: 46 :- the context of selection to the post of Munsiff Magistrate, making it clear that in case a candidate fails in an interview, it cannot be said that he is suitable for the job.

28. Reverting to the facts, as already noticed, in terms of Ext.P7 University Order, the maximum marks provided for teaching aptitude is ten, of which five marks is for teaching experience and five marks for proficiency in ICT (Information and Communication Technology) enabled teaching practices. As far as teaching experience is concerned, Ext.P7 provides that a candidate is entitled to one mark each per year of teaching subject to a maximum of five marks. In other words, if a candidate has five years of teaching experience, he is bound to be awarded the maximum marks. Similarly, as far as the proficiency in ICT enabled teaching practices is concerned, Ext.P7 provides that if a candidate has to his credit any e- content module developed and published indicating his proficiency in ICT enabled teaching practices, he is entitled to get two and half marks for each module, subject to a maximum W.A. No.287 of 2022 -: 47 :- mark of five. In other words, if a candidate has two e-content modules to his credit, he is bound to be awarded the maximum marks. In other words, out of ten marks earmarked for assessing the teaching aptitude, a candidate need not have to perform in the interview and even if a candidate is able to demonstrate that he has a better teaching aptitude when compared to other candidates participating in the selection, no marks can be awarded to him on that ground. As far as research aptitude is concerned, Ext.P7 provides that marks would be awarded only for the research publications already made by the candidates. Different marks are also provided for different types of publications. In other words, a candidate who has the requisite number of publications is sure to get the maximum marks earmarked, in order to be assessed. Here again there is absolutely no role for the performance of the candidates and even if a candidate is able to demonstrate that he has a better research aptitude when compared to the other candidates participating in the selection, there is no provision in W.A. No.287 of 2022 -: 48 :- Ext.P7 University Order for awarding marks to him on that ground. In other words, as rightly pointed out by the learned counsel for the petitioner, ten marks out of 50 earmarked for assessing the teaching aptitude of the candidates and 20 marks out of 50 earmarked for assessing the research aptitude of the candidates are directed to be given solely based on the experience of the candidates and the publications made by them, and not based on their performance in the interview.

29. As indicated in Table 3B of Appendix II, candidates are required to be awarded scores for their teaching experience as also research publications. As noted, it is categorically stated in the Regulations that the score secured by candidates for the different criteria made mention of in Table 3B shall be reckoned only for short-listing and not for selection by providing that the selection shall be solely based on the performance of the candidates in the interview. In other words, the scheme of the Regulations is that as far as the post of Assistant Professor is concerned, teaching experience and W.A. No.287 of 2022 -: 49 :- research publications shall not be the basis of the selection and the same shall only be the basis of short-listing the candidates for selection and such selection shall be based on the performance of the candidate in the interview. Be that as it may, Clause 6.0 of the Regulations which is extracted in paragraph 26 above clarifies that in order to make the system more credible, universities may assess the ability for teaching and/or research aptitude through a seminar or lecture in a classroom situation or discussion on the capacity to use the latest technology in teaching and research at the interview stage. The contemplation of the Regulations for the purpose of assessing the teaching ability/aptitude as also the research aptitude is therefore that it shall be assessed at the stage of interview through a seminar or lecturer in a class room situation or discussion on the capacity to use latest technology in teaching and research. True, the expression used in Clause 6.0 in the context of the procedure to be adopted for assessing the teaching ability and research aptitude is "may". The same W.A. No.287 of 2022 -: 50 :- would certainly lead to the inference that the provision therein is illustrative and the Universities may adopt different methodologies and procedures similar to that for the purpose of assessing the teaching ability and research aptitude of the candidates. It is all the more so as we find that the University is empowered to formulate appropriate criteria for assessing the teaching ability and the research aptitude, to choose the best among the candidates for appointment to the post of Assistant Professor. It is not necessary to delve deep into the various procedures and methodologies that could be deployed by the Universities for the purpose of assessing the teaching ability and research aptitude of the applicants for appointment to the post of Assistant Professor, for the question before us is only as to whether the same could be assessed based on pre- determined criteria. In the light of the discussion aforesaid, we are of the view that assessment of teaching ability and the research aptitude based on pre-determined criteria is not permissible in terms of the Regulations, that too, by adopting W.A. No.287 of 2022 -: 51 :- some of the parameters made mention of in Table 3B of Appendix II to the Regulations.

30. One of the contentions raised by the learned Standing Counsel for the University is that prescription of criteria for awarding marks in an interview for selection for appointment to teaching posts is purely an academic matter and the courts should respect the decision taken by the academicians and experts in this field. There cannot be any doubt to the said proposition. As far as the present case is concerned, the question is as to whether the criteria fixed for assessment of the performance of the candidates in the interview is in conformity with the UGC Regulations. Insofar as the University does not dispute the fact that the selection in the case on hand was one to be made in accordance with UGC Regulations, the proposition aforesaid, according to us, has no application to the facts of the case. True, in Gijo Ittoop (Dr.), it was observed by this Court that the courts shall not enter into arenas which are reserved exclusively for academic experts and W.A. No.287 of 2022 -: 52 :- bodies and shall not substitute its wisdom for that of the wisdom of the experts. We do not think that the decision in the said case would preclude this court from examining the question aforesaid on the facts of the present case.

31. One of the contentions raised by the Principal and the Manager of the College is that the manner of assessment of teaching ability and research aptitude as indicated in Clause 6.0 (i) of the Regulations does not apply to selection for appointment to teaching posts in affiliated colleges. As noted, it has been clarified by the learned counsel for the UGC that the said stipulation would apply equally to the selection for appointment of teaching posts in affiliated colleges also. We do not find any reason to take a different stand on this point.

32. The contention raised by the learned counsel for the eighth respondent is that since Ext.P7 University Order which is under challenge in the writ petition was modified in terms of Annexure A1 order, the petitioner should have W.A. No.287 of 2022 -: 53 :- challenged Annexure A1 order as well. No change, whatsoever, was brought about in Annexure A1 order insofar as it relates to the assessment criteria for awarding marks in the interview. On a query from the court, it was conceded by the learned standing counsel for the University that Annexure A1 order was issued only for the purpose of correcting a few clerical errors in Ext.P7 order. In other words, it is not a case where the directions contained in Ext.P7 University Order were altered in Annexure A1 order. As noted, the question in the case is as to whether the selection conducted based on the criteria fixed in terms of Ext.P7 order is sustainable in law. In so far as the selection was attacked on the ground that the criteria were unsustainable in law, it was not necessary for the petitioner to raise a challenge against Ext.P7 order, as the sustainability of the said ground can be examined even otherwise. In the said view of the matter, we do not think that it is necessary for the petitioner to challenge Annexure A1 order. Another contention raised by the learned counsel for the eighth respondent is that W.A. No.287 of 2022 -: 54 :- the petitioner has not made out a case of prejudice. We are unable to agree. Insofar it was found that Ext.P7 University Order is not one issued in conformity with the Regulations, the petitioner is certainly put to prejudice inasmuch as the possibility of the petitioner securing more marks in the assessment of teaching ability and research aptitude in the interview, had the norms been in accordance with the Regulations, cannot be ruled out.

33. Needless to say, Ext.P7 University Order, to the extent it provides for assessment of teaching ability and research aptitude based on pre-determined criteria, is contrary to the Regulations. The question is answered accordingly.

In the result, the appeal is allowed, the impugned judgment is set aside and the writ petition is disposed of setting aside Ext.P7 University Order as also the selection of the eighth respondent made based on Ext.P7 for appointment to the post of Assistant Professor. There will be a direction to the second respondent University to formulate norms afresh for awarding W.A. No.287 of 2022 -: 55 :- marks for interview for selection for appointment to the post of Assistant Professor, having regard to the provisions contained in the Regulations as also the findings and observations made in this judgment. This shall be done within one month. There will also be a direction to the fourth respondent to conduct the interview of the candidates short-listed pursuant to Ext.P4 notification afresh, based on the revised norms directed to be issued in terms of this judgment, within a month thereafter.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.S.SUDHA, JUDGE.



Mn
 W.A. No.287 of 2022             -: 56 :-




                      APPENDIX OF WA 287/2022

PETITIONER ANNEXURES
Annexure A1       TRUE COPY OF THE RELEVANT PAGE OF
                  STATEMENT   SHOWING   THE  DETAILS    OF
                  CANDIDATES FOR SELECTION TO THE POST OF
                  ASSISTANT PROCESSOR IN HINDI IN MOC
                  COLLEGES.
Annexure R2(1)    THE TRUE COPY OF THE UNIVERSITY ORDER
                  NO.5796/ACL/2021/MGU DATED 01.11.2021
ANNEXURE R4(A)    TRUE COPY OF THE CONSOLIDATED STATEMENT
                  SHOWING THE DETAILS OF THE CANDIDATES
                  FOR THE SELECTION TO THE POST OF
                  ASSITANT PROFESSOR IN MOC COLLEGES.

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