Kerala High Court
Dr. Ashokan vs Dr.Balachandran Keezhoth on 18 December, 2012
Author: Manjula Chellur
Bench: Manjula Chellur, K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 30TH DAY OF JANUARY 2013/10TH MAGHA 1934
WA.No. 2281 of 2012 () IN WP(C).22528/2011
-------------------------------------------
AGAINST THE ORDER/JUDGMENT IN WP(C).22528/2011 of HIGH COURT OF KERALA
APPELLANT(S):
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DR. ASHOKAN,
REGISTRAR (TERMINATED WITH EFFECT FROM18-12-2012
AS PER UNIVERSITY ORDERDATED 18-12-2012)KANNUR UNIVERSITY,
KANNUR - 670 567.
BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.)
SMT.K.RADHAMANI AMMA
RESPONDENT(S):
--------------
1. DR.BALACHANDRAN KEEZHOTH,
AGED 46 YEARS, S/O.P.KANNAN,
DEEMGOOD, RADHAVILASAM SCHOOL LANE,
PALLIKKUNNU POST, KANNUR, PIN-670 004.
2. KANNUR UNIVERSITY,
KANNUR, REPRESENTED BY ITS REGISTRAR,
MANGATTUPARAMBA, KANNUR UNIVERSITY CAMPUS PO,
KANNUR - 670 567.
3. SYNDICATE,
KANNUR UNIVERSITY,
KANNUR, REPRESENTED BY ITS CHAIRMAN,
MANGATTUPARAMBA, KANNUR UNIVERSITY CAMPUS PO,
KANNUR-670 567.
4. DR.JAMES PAUL,
MAZHUVANCHERIL HOUSE,
NIRMALAGIRI POST,
NIRMALAGIRI-670 701.
R BY SRI.P.K.IBRAHIM
R BY SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL
R BY SRI.K.V.PAVITHRAN
R BY SRI.V.A.MUHAMMED, SC, KANNUR UNIVERSITY
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ALONG WITH WA.NO.24
OF 2013 ON 16-01-2013, THE COURT ON 30.1.2013 DELIVERED THE FOLLOWING:
WA.No. 2281 of 2012
APPENDIX
APPELLANT'S EXHIBITS:
ANNEXURE-I: COPY OF ORDER NO.AD.A2.8717/2011 DATED 18.12.2012 OF
THE VICE-CHANCELLOR.
ANNEXURE-II: COPY OF SCORE SHEET OF THE INTERVIEW HELD ON
6.4.2011.
/TRUE COPY/
PS TO JUDGE
MANJULA CHELLUR, C.J
&
K.VINOD CHANDRAN, J.
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W.A.No. 2281 of 2012
&
W.A.No. 24 of 2013
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Dated this the 30th day of January, 2013
JUDGMENT
Manjula Chellur, C.J.
Two Writ Petitions came to be filed before the learned Single Judge by the party respondents herein challenging appointment of the present appellant Dr.Ashokan to the post of Registrar of Kannur University. As could be ascertained from the pleadings before the learned Single Judge, the appointing authority, none other than the Syndicate of the University, had not formulated any norm to be followed in the interview conducted by the selection committee, therefore, awarding of index marks in the interview at the instance of the Chairman of the Selection Committee, none other than the Vice Chancellor of the University, which came to be determined on the date of interview was erroneous, according to the writ petitioners. It was further contended, the present appellant and the fourth respondent herein were not even having the requisite qualification to the post WA.2281/12 & WA.24/13 2 of Registrar, therefore, placement of the said persons in the rank list at Exhibit P4 was per se illegal and deserves to be quashed. In W.P(C).No.22528 of 2011, the petitioner sought for the following reliefs:
"i) Issue a writ of quo warranto or any other appropriate writ or direction or information directing the 3rd respondent to show under what authority he is holding the post of Registrar in the Kannur University and direct him to vacate the posts forthwith.
ii) Calling upon the 3rd respondent call for the records leading to Ext.P4 and Ext.P5(a) and Ext.P5(b) and quash the same issuing a Writ of certiorari or any other appropriate writ order or direction;
iii) Declare that petitioner being raked 3rd and being fully qualified is entitled to be appointed as Registrar and issue consequential direction to the respondents 1 and 2 to appoint the petitioner as Registrar, giving all consequential benefits retrospectively from the date the 3rd respondent assumed office;
iv) Pass such other orders that this Hon'ble Court may deems fit and proper in the facts and circumstances of the case." WA.2281/12 & WA.24/13 3
In W.P(C).No.17319 of 2011 the petitioner sought for the following reliefs:
"i) Issue a writ of certiorari calling for the records leading to Ext.P4 and to quash the same.
ii) Issue a writ in the nature of declaration declaring that the 2nd respondent is not possessing the required qualification of experience for being considered for the post of Registrar in terms of the qualifications notified and therefore the selection committee ought to have rejected the application.
iii) Issue a writ declaring that the selection of the 2nd respondent as the Registrar of the 1st respondent University by the selection committee is ignoring the notified qualifications and the selection is vitiated and bad in the eye of law.
iv) Issue a writ declaring that the selection committee had followed the guideline in awarding index mark without the legal sanction to follow the same and therefore the procedure followed by the selection committee and the resultant decision are vitiated in the eye of law."
WA.2281/12 & WA.24/13 4
2. The undisputed facts are, the Kannur University had invited applications to the post of Registrar in the said University by notification at Exhibit P1 dated 7.2.2011 indicating the minimum qualification required and also certain terms and conditions. Last date for submitting the applications was 3.3.2011. Both the writ petitioners, 3rd and 4th respondents before the learned Single Judge and several others applied for the said post in the format notified by the University in question. According to the writ petitioners, the minimum qualification being First or Second Class Post Graduate Degree and 5 years teaching experience at University level and about 5 years of administrative experience in a responsible post including management of staff in a University or College or Education Department or similar Institution as the criterion, in the absence of such criterion possessed by the appellant and other respondents, there was no justification to consider their applications and further mistake was committed in selecting the appellant as the Registrar.
3. It is not in dispute, the selection committee, consisting of Vice Chancellor as the Chairman and two members constituted in terms of Statute 18 of Chapter 12 of the Kannur University First WA.2281/12 & WA.24/13 5 Statutes 1998, conducted interviews on 6.4.2011 and Exhibit P4 rank list was prepared and published. It is undisputed fact that the appellant and the fourth respondent in W.A.No.2281 of 2011 were placed at rank Nos.1 and 2 respectively, whereas the writ petitioners in both the Writ Petitions were placed at rank Nos. 3 and 4. Subsequently, the Syndicate approved the selection proceedings in the meeting held on 19.5.2011, which led to appointment of the appellant on the very same day as Registrar of the Kannur University. It seems that on the very same day the appellant joined duty also. In the absence of transparency in the selection process adopted, especially when no norms were fixed by the Syndicate, the entire process was contrary to the factual figures and opposed to law was the claim of the writ petitioners. It was further contended that the appellant did not even possess experience on administrative side and he came to be appointed as Head of the Department subsequent to the last date for submission of the applications. Similar was the situation with regard to the fourth respondent in W.A.No.2281 of 2011. However, we are not concerned with the position of the fourth respondent, who was never selected.
WA.2281/12 & WA.24/13 6
4. The stand of the appellant herein was, Writ Petitions were not maintainable, as the writ petitioners were unsuccessful in the selection process. The appellant claims, he is having requisite qualification as prescribed in the notification. It is claimed that the selection committee conducted interviews in accordance with the relevant norms and there is no abuse of any process or illegal exercise of authority, as the selection process came to be approved by the Syndicate and the Writ Petitions are filed much later in August, 2011. The appellant/third respondent in WP(C). No.2528 of 2011 also pointed out the deficits in the requisite qualifications of the writ petitioners and in the absence of challenge against the same, Writ Petitions were not maintainable.
5. So far as the respondent University, it sought sustenance of the proceedings contending selection process conducted by the selection committee on 6.4.2011 being ratified by the resolution of Syndicate on 19.5.2011. Attempt was made that the appellant herein was having requisite qualification as indicated by the University. At no point of time, qualification of the writ petitioners was questioned or found fault with by the University, but decided only on assessing the merit they had and placed only at Rank WA.2281/12 & WA.24/13 7 Nos.3 and 4, whereas the third respondent appellant having better credentials was placed at Rank No.1.
6. The fourth respondent in W.A.No. 2281 of 2012 by name Dr.James Paul also filed objection statement contending that the appellant was not qualified and the selection process was invalid. According to him, the fourth respondent was the proper candidate for the said post and not the writ petitioners by virtue of having better experience than the others. The contentions raised by the writ petitioners were reiterated in the reply affidavit contending, the guidelines or norms for awarding index marks were determined by the selection committee and not by the Syndicate, therefore, there is no justification. According to them, some legitimate doubts have to be entertained with regard to convening meeting of the Syndicate on 19.5.2011 and also relieving and allowing the appellant to report for duty on the same day. With these pleadings supported by arguments of learned counsel ultimately persuaded the learned Single Judge to opine that the entire selection and appointment process adopted by the selection committee was per se illegal, therefore, selection and appointment of the third respondent appellant to the post of WA.2281/12 & WA.24/13 8 Registrar is unsustainable and accordingly, Exhibits P4, P5(a) and P5(b) were set aside. The respondent University was directed to conduct the selection afresh, confining the same to the applicants who responded to Exhibit P1 notification after getting the norms fixed by the Syndicate to conduct or proceed with the selection process by the selection committee. Three months time from the date of receipt of a copy of the judgment was granted to complete the process of selection. Aggrieved by the same, the present Writ Appeals are filed by the appellants.
7. According to learned Senior Counsel arguing for the appellants, the selection committee is required to only recommend suitability of the candidates by indicating whether a particular candidate is fit or unfit to the post of Registrar, therefore, though the selection committee is not required to indicate relative suitability of the candidates, if such a relative suitability is indicated, ultimately it is for the appointing authority to proceed with the appointment to the post of Registrar. According to him, recommendation by the selection committee is not required to be preceded by a selection on a comparative evaluation of merit and suitability of persons applied to the post WA.2281/12 & WA.24/13 9 of Registrar. The recommendation contemplated under Section 14 of the Kannur University Act, 1996 and Statute 18(1) of the Kannur University First Statutes, 1998 does not involve merit and the selection committee is not legally obliged to make any competitive or relative suitability of the persons applied for the post. Its duty is only to recommend and the literal meaning of 'recommendation' is to suggest as fit for employment and the selection committee is required to include persons fit to be chosen.
8. Learned Senior Counsel proposes alternative argument that if selection committee has evolved its own method or procedure for objective assessment of suitability of candidates to categorise them as fit or unfit, it is within the recognized and valid principle as held in the case of Union of India v. Dr.P.Rajaram (1993 Supp (2) SCC 326). Therefore, the method adopted by the selection committee cannot be held erroneous. Preparation of recommended panel is unassailable, as it does not suffer from any vitiating factor. According to learned Senior Counsel, the learned Single Judge has gone wrong in stressing upon the absence of provisions in the Act or Statute, to follow a criterion for WA.2281/12 & WA.24/13 10 judging suitability to recommend a candidate to the post of Registrar. Therefore, the learned Single Judge was wrong in opining that the Syndicate, appointing authority alone can prescribe norms and criteria for preparation of panel of candidates recommended for appointment to the post of Registrar by placing reliance on the Full Bench judgment of this Court in Kesav Mohan v. University of Kerala (2009(4) KLT 573(FB)). He further contends, categorising officers as fit or unfit requires a process and no prescribed norms are necessary as within the powers of the selection committee, it can device its own method and procedure. Norms and guidelines are required only when the selection involves comparative evaluation of merit. He further contends, only where selection process is involved, competent authority is empowered to prescribe the minimum qualifying marks as held in K.Manjusree v. State of Andhra Pradesh [(2008)3 SCC 512]. In the absence of pointing out the recommendation process invested with any extraneous or irrelevant consideration especially in the absence of bias and malafides, there was no justification for the learned Single Judge to set aside the appointment of the appellant, is the contention of WA.2281/12 & WA.24/13 11 the learned Senior Counsel. He also places reliance on A.Panduranga Rao v. State of Andhara Pradesh (1975-LAWS (SC)-9-38) and Union of India and others v. Lt.Gen.Rajendra Singh Kadyan and another [(2000)6 SCC 698] to contend, what 'selection' and 'recommendation' would mean and lastly concludes his argument placing reliance on Naraindas v. State of M.P (AIR 1974 SC 1232) at paragraph 17 to contend that the appointing authority, who is the Syndicate in the present case, was not bound by the selection committee's decision.
9. As against this, learned counsel appearing for the first respondent contends, when Exhibit P1 notification prescribes a minimum qualification, that alone has to be taken into consideration. The very procedure of prescribing norms is only to maintain transparency and clarity so as to select the most suitable person. According to them, in the absence of such transparency, the entire course adopted by the selection committee by changing or making the rules of the game after notification at Exhibit P1 is unsustainable and the judgment of the learned Single Judge deserves to be sustained.
10. Learned Standing Counsel for the University contends, WA.2281/12 & WA.24/13 12 the selection process has to be in accordance with the norms prescribed and in the absence of norms prescribed, the selection process is vitiated and in the present case, the Syndicate had not fixed any norm.
11. Learned counsel Sri.George Poonthottam appearing for the first respondent in W.A.No.24 of 2013 places reliance on paragraphs 32 and 39 of the Keshav Mohan's case (Supra) and contends that the judgment of the learned Single Judge deserves to be upheld and seeks dismissal of the Writ Appeal.
12. The question that came up before a five Judges Bench of the Apex Court in Naraindas's case (Supra) was with regard to the power of the State Government to prescribe text books for schools under Article 162 of the Constitution prior to M.P. Prathamik, Middle School Tatha Madhamik Shikha (Pathya Pustakon Sambandhi) Vyavastha Adhiniyam Act (13 of 1973). It was held that in the absence of any statutory provision like Section 4(1) of the above Act, which empowered the State Government to prescribe any text book for schools. The Government could prescribe the books under its executive power under Article 162 of the Constitution. It was further held, no WA.2281/12 & WA.24/13 13 publisher could claim a right that any of his books should be accepted as text book by the State Government. Similarly, the State Government, instead of prescribing text books under Article 162 of the Constitution, does so under statutory power such as Section 4(1) of the above said Act. The result would be the same. Therefore, right of a person under Article 19(1)(g) of the Constitution is not infringed, if his books are not published. Section 4 of the above Act was held as not violative of Article 14 of the Constitution. Section 4(1) of the above Act prescribes power of the State Government to prescribe text books, which is not arbitrary or uncontrolled power. Once notification is issued by the State Government prescribing text books, where there is no prior consultation with the Education Board, it cannot be held as invalid. It was further held in this case that the object or purpose for which the power of selection given to the State Government and prescribe text books is to ensure uniformity of standard and excellence in instruction which can be achieved only if standardised text books of high quality and merit are used in the schools. Though such power could not be held as arbitrary, but it is not an unguided and unfettered power which leaves the WA.2281/12 & WA.24/13 14 Government free to select and prescribe such text books as it may wantonly or capriciously please, but it is a power which is confined and embanked within limits by the object and purpose for which it is conferred. This is only to see that the Government cannot act arbitrarily or capriciously in selection and prescription of books. If the State Government in selecting and prescribing text books does not follow this standard or criterion, the prescription of text books by the State Government can be condemned as invalid. Their Lordships also held that the power to prescribe course of instruction in language cannot be read by necessary implication in the power to prescribe course of instruction. Prescription of text books in language was outside the purview of the Board, hence it was ultra vires and had no binding effect, which would oblige the schools to use only these text books and not others. Learned counsel for the appellant relied upon this decision in order to contend that though the selection committee had sent the names of candidates to be appointed to the post of Registrar of the University, it was still open to the Syndicate to refuse the same, if no proper procedure was adopted. The learned counsel also relies upon Lt.Gen.Rajendra WA.2281/12 & WA.24/13 15 Singh Kadyan's case (Supra) to contend what exactly is the selection process. According to him, in order to understand whether a post is a selection post or not, one has to look at the criterion prescribed for such selection process of the said post. One of the criterion to arrive at a conclusion is whether it involves a comparative assessment of the officers, which would conclude the fact that the element of selection is involved. Such criterion would fall into three categories, namely, seniority-cum-fitness, seniority-cum-merit and merit-cum-suitability with due regard to seniority. Therefore, wherever suitability has to be assessed, necessarily, it involves assessment of comparative merit of all eligible candidates to select the post out of that. According to learned counsel for the appellant, this is the method adopted by the selection committee, but, however, according to learned Senior Counsel, the method adopted by the selection committee is only a procedure for objective assessment of suitability whether they are fit or unfit.
13. So far as the facts of the present case are concerned, Annexure A1 along with the details of the list of candidates necessarily has to be looked into. Annexure A2 is the list of WA.2281/12 & WA.24/13 16 candidates. This document clearly indicates, there were 12 candidates, who were interviewed to the post of Registrar on 6.4.2011 at 10.30 am by the selection committee headed by the Chairman, who is none other than the Vice-Chancellor of Kannur University. The process of selection or interview clearly indicates some marks were given for different heads like additional educational qualification above Post Graduation, teaching experience, administrative experience, awards, recognitions and provable experience in related areas, presentation of papers/books in seminars (national and international level), refresher/orientation courses attended at Academic Staff College/UGC sponsored programmes and lastly, participation in training/special training in courses in academic-administration at various institutions. In all, totally 100 index marks was prescribed, which includes 25 marks for oral interview. This awarding of marks for various items at the oral interview was never indicated at Exhibit P1 notification. It is also not in dispute that only on 6.4.2011 this criterion was adopted fixing norms by the Vice- Chancellor, who is none other than the Chairman of the selection committee. Apparently, appointment could not be made by this WA.2281/12 & WA.24/13 17 selection committee. Admittedly, appointing authority is the Syndicate and not the selection committee. Guidelines at Exhibit P10 were issued on 6.4.2011 on the date of interview. It further says, said guidelines were subject to ratification by the Syndicate. The very fact that guidelines deserve to be ratified by the Syndicate indicates that the Syndicate had nothing to do with the said guidelines. Therefore, the learned Single Judge was justified in coming to the conclusion that only the appellant herein all along was contending that Syndicate had formulated clear guidelines in the process of selection and said guidelines not being challenged by the writ petitioners would go to the root of the matter. One has to see whether these guidelines are formulated in accordance with the procedure contemplated, who has formulated and whether the person or the committee, which formulated these guidelines, had authority to formulate such guidelines. It is also pertinent to mention, the guidelines were not even formulated by the selection committee, but the Chairman of the selection committee formulated these guidelines. It is nothing but his individual perception. There was no ratification of these norms by the Syndicate before selection process was conducted. WA.2281/12 & WA.24/13 18 There is nothing on record to show and it is also not the case of the University that Syndicate had authorised the Vice-Chancellor or delegated its power in this regard to fix guidelines or norms for awarding index marks in the interview. Powers of the second respondent Vice-Chancellor if at all had to be spelt out from Section 11(1) of the Kannur University Act, 1996, it reads as under:
"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 be, report the action taken by him to that authority for such action as it may consider necessary."
14. Reading of sub-section (1) of section 11 of the Kannur University Act, it confers only limited powers on the Vice-Chancellor to step into shoes of the Syndicate so as to meet the emergency WA.2281/12 & WA.24/13 19 situation. It is well settled that emergency powers of the Vice Chancellor could be exercised only in exceptional circumstances and not otherwise. Was there a situation, which could be termed as exceptional circumstances warranting such decision on the part of the Vice-Chancellor to fix norms at the last minute? It is not in dispute that the Statute does not prescribe any power or authority upon the Vice-Chancellor to declare the norms for selection to the post of Registrar, as it is the power conferred on the Syndicate, who is the appointing authority. The Vice- Chancellor all along was well aware of the limited power he had under sub-section (1) of section 11 of the Kannur University Act and was also aware of the said power to be exercised by the appointing authority, i.e., the Syndicate.
15. Notification inviting applications to the post of Registrar came to be issued as early as on 7.2.2011 under Exhibit P1. Except minimum qualification, no other norms were indicated at Exhibit P1. The application form and the relevant instructions do not indicate issuance of any such norms, after the game of selection commenced, i.e., after issuance of notification at Exhibit P1. The interview came to be conducted much later, almost two WA.2281/12 & WA.24/13 20 months after the notification at Exhibit P1. If the Vice-Chancellor felt, in order to assess suitability of the candidates for recommending to the post of Registrar as fit or unfit, he ought to have sought fixation of such norms much earlier. There is yet another deficit, if the columns in the application or the instructions did not indicate that separate marks would be awarded for additional educational qualification above Post Graduation and also towards presentation of papers or books in seminars (national and international) as well as refresher orientation course at academic staff college etc. how the candidates were expected to bring such certificates or documents in proof of such qualification at the time of interview? The norms are fixed on 6.4.2011 without approval of Syndicate without giving an opportunity to the candidates, who appeared for interview to produce such documents to secure good marks, which are known as index marks to know the suitability of the candidates. It was nothing, but arbitrary exercise of power on the part of the Vice-Chancellor to come out with such index marks at the last minute. It is relevant to refer to the case of Keshav Mohan' case (Supra). In the above decision, a Full Bench of this WA.2281/12 & WA.24/13 21 Court 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. This was with regard to the post of Controller of Examinations of University of Kerala. It was further held that in the absence of any statutory provisions to the contrary, no such inherent jurisdiction or authority vests with the selection committee to evolve its own norms for conducting the selection. As a matter of fact, paragraphs 32 and 39 of the decision reported in Antony P.A. v. Krishnadas M.N (ILR 2007(1) Ker. 244) are relevant, which read as under:
"32. The further contention is that there shall be sanction for the posts. The provision relied on in this regard is Section 7(xxi) which provides that University shall have the powers "to create the administrative and other posts with prior approval of the Government and to appoint persons to such posts". That 20 incumbents were working on deputation in the category of Section Officer is an admitted fact. As is revealed by Ext.R-2A, Government had replied to the University that in the light of sanction of sufficient fund from Government and WA.2281/12 & WA.24/13 22 University Grants Commission as grant in aid for meeting the salary expenditure of different posts including 20 posts of Section Officers no ex post facto sanction was required; because tacit sanction was already available. When Government had thus communicated the University that sanction was not required; it means that Government had by allotting sufficient funds had sanctioned those posts. That sanction is sufficient to take that, the posts were existing for making appointments.
xxx xxx xxx
39. It is an admitted fact that candidates like respondent No.8 in Writ Petition No.25777/03 with Diploma in Social Service were awarded marks for additional qualification. It is not demonstrated before us by the counsel for the University how the Diploma in Social Service will add to the functional ability of a directly recruited Section Officer. If a diplomate in Social Service can be awarded marks for additional qualification; necessarily, a B.Ed. degree holder can also be awarded additional marks. At least the petitioners in Writ Petition Nos.28932/03 and 25777/03 were left out without being awarded marks for additional qualification of B.Ed. It is pointed out that the WA.2281/12 & WA.24/13 23 first appellant in W.A.No.1604/05 has only a certificate in type writing and he had been given additional marks for that qualification. Therefore the exclusion of B.Ed. candidates from being awarded marks for their additional qualification was unjustified, even going by the guidelines admittedly adopted by the selection committee. This has also vitiated the process of selection; as some of the candidates has been discriminated in not awarding such marks for the additional qualification."
16. In order to apply the principle in Lt.Gen.Rajendra Singh Kadyan's case (Supra), we are not faced with a situation where promotion to the post of Registrar is before us. The post has to be filled up from direct recruitment process. Therefore, question of merit-cum-suitability with a due regard to seniority as prescribed in the case of promotion to All India Services, which requires assessment of comparative merit of eligible candidates cannot be relied upon.
17. Learned Senior Counsel arguing for the appellant relied upon Union of India v. Dr.P.Rajaram (1993 Supp (2) SCC 326) to understand the expression 'suitability'. Paragraphs 52 and 53 are relevant, which read as under:
WA.2281/12 & WA.24/13 24
"52. From the above two paragraphs it is clear that if there is to be an assessment the principle of selection is involved. On the contrary, if it were merely a seniority-cum- fitness there is no need to associate the Union Public Service Commission as pointed out in Paragraph 2.3 of the guidelines. All these lead only to one conclusion that these are selection posts. Having arrived at this conclusion then the question would be what exactly is the meaning of the word "suitability". That is dealt with apart from Rule 4, sub-rule (10), clause (iii), also under guidelines in paragraph 6.1.2. The Departmental Promotion Committee is to devise its own method and procedure for objective assessment of suitability of candidates. It is noteworthy in paragraph 6.3.1 that the procedure for the preparation of the panel for promotion by the Departmental Promotion Committee is delineated. Clause (ii) is very important and we extract the same:
"In respect of all posts which are in the level of Rs. 3700-5000 and above, the benchmark grade should be 'Very Good'. However, officers who are graded as 'Outstanding' would rank en bloc senior to those who are graded as 'Very Good' and placed in the select panel accordingly up to the number of vacancies, officers with same grading maintaining WA.2281/12 & WA.24/13 25 their inter se seniority in the feeder post."
53. In contradistinction to this when we look at paragraph 7 of the guidelines, which deals with non-selection method, that dispenses with the requirement to make a comparative assessment of the records. In such a case what is required is to categorise the officers as fit or not yet fit for promotion on the basis of the assessment of the record of service. In so far as we are concerned with selection this paragraph does not have any application whatever. Thus, therefore, the word "suitability" in Rule 4(10)(iii) having regard to the nature of the post and grade, could only mean suitability for the purposes of being selected to the said post."
18. We are afraid, the situation in those cases was entirely different from the situation in the present case. In that case, there has to be assessment of suitability in order to consider to high ranking post in the high timescale by promotion. The facts of the present case is entirely different from the above case. They also refer to Ramesh Kumar v. High Court of Delhi (2010-LAWS (SC)-2-44) at paragraph 13, which read as under:
WA.2281/12 & WA.24/13 26 "(13) Thus, law on the issue can be summarised to the effect that in case the statutory rules prescribe a particular mode of selection, it has to be given strict adherence accordingly. In case, no procedure is prescribed by the rules and there is no other impediment in law, the competent authority while laying down the norms for selection may prescribe for the tests and further specify the minimum Bench Marks for written test as well as for viva-voce."
19. No one can have any second opinion so far as the above position. In the present case, no procedure is prescribed by the Statute so far as norms for selection to the post of Registrar. Then the question is whether the Vice Chancellor, as the Chairman of the selection committee, has competency to evolve procedure. We have already explained the legal position as well as the factual situation how adoption of such method would put other candidates to disadvantageous position, who did not have the knowledge of allocation of marks under various heads as indicated at Annexure A2. A candidate participating in an interview knowing fully well the Rules may have some hindrance or obstacle to turn back; being unsuccessful in the interview, to question the selection process, but in the absence of clear WA.2281/12 & WA.24/13 27 indication of norms can such principle apply to the present candidates. The answer would be definitely negative. After participating in the process of selection knowing fully well that the educational qualification required was clearly indicated or the norms required were notified are quite different from the candidates, who did not have any idea of awarding marks in the interview. Apparently, the norms adopted in the interview was never within the knowledge of the writ petitioners, as the Syndicate had not fixed the norms for selection. Surprisingly, when the University categorically says, no such norms are fixed by the Syndicate, the appellant, who is the selected candidate, took a definite stand, such norms were fixed by the Syndicate or such norms were ratified on 19.5.2011 by the Syndicate. Yes, they were ratified, but much later than the date of interview on 6.4.2011. It is apparent on the record that the norms came to be fixed for the first time on 6.4.2011, on the date of interview or selection. In these circumstances, no fault lies with the writ petitioners knocking at the doors of this Court.
20. The learned Senior Counsel alternatively contends that the words "to recommend" would include, to indicate suitability or WA.2281/12 & WA.24/13 28 non suitability of a particular candidate, therefore, if the selection committee had evolved a process, to know the suitability, it cannot be found fault with. In the absence of any norms indicated at Exhibit P1, whether there was any disadvantage to the candidates, who appeared for the interview, is already discussed above. Annexure A2 indicates the relative suitability, which was placed before the Syndicate. Apparently, the appellant got the first position and the fourth respondent was placed at second position. The basis for relative suitability was categorised into several heads, under which marks were awarded. This was not at all within the knowledge of all the candidates. The credentials to be produced as per the instructions would refer with reference to minimum qualification and not other documents, which were not even required to be submitted by the candidate. All the candidates were not aware of the requirement or awarding of marks under different heads as indicated at Annexure A2. The relative suitability alone was the criteria adopted, i.e., who secured highest marks.
21. One of the heads of securing marks was with regard to experience apart from educational qualification. The documents WA.2281/12 & WA.24/13 29 produced before the Court at Exhibits P6, P6(a) and P7 are to determine the experience secured by the appellant herein. It would go to show, only with effect from 1.4.2011 he was functioning as the Head of the Department of Economics a week prior to the interview. If Exhibit P1 reflects experience of administrative side in a responsible post including management of staff in a University or College or Education Department or similar institution, he had five days experience as on the date of interview in the place of five years experience. This clearly go to show the required experience was not at all possessed by the appellant herein. If the selection process involves awarding eligible marks based on different trades or qualification possessed by a candidate, these norms have to be spelt out either in a Statute and if no such norms are spelt out in the Statute, this has to be fixed by the Syndicate/appointing authority. In the absence of such process adopted by the appointing authority, the procedure adopted by the selection committee fixing norms to be followed by the selection committee as per the guidelines of the Chairman of the selection committee on the date of interview, which were not ratified prior to interview by the Syndicate has to WA.2281/12 & WA.24/13 30 be definitely opined as per se wrong and unsustainable. It is also pertinent to mention that subsequent to 6.4.2011, only on 19.5.2011 the norms came to be ratified after approval of selection of the appellant to the post of Registrar, as the resolution for appointment of the Registrar and the ratification of the norms would indicate, first appointment of the appellant was ratified as the Registrar of the University and later the norms chosen by the Vice-Chancellor were ratified. This would go to show that there was no application of mind while approving the selection and appointment of the third respondent.
In the above circumstances, we are of the view that the leaned Single Judge was justified in setting aside the appointment of the appellant to the post of Registrar of the Kannur University as unsustainable. The learned Single Judge was justified in setting aside Exhibits P4, P5(a) and P5(b). The learned Single Judge was also justified in saying, the selection to the post of Registrar has to be conducted afresh, confining the same to the applicants who responded to Exhibit P1 notification, after getting the norms for awarding index marks in the interview prescribed by the Syndicate and letting the same known to the selection committee WA.2281/12 & WA.24/13 31 well in advance. We find no good ground to interfere with the judgment of the learned Single Judge and accordingly, the Writ Appeals are dismissed.
MANJULA CHELLUR, CHIEF JUSTICE K.VINOD CHANDRAN, JUDGE vgs