Kerala High Court
Sreeja V vs Dr. P.Satheesh on 19 May, 2020
Author: V.G.Arun
Bench: A.M.Shaffique, V.G.Arun
WA.2419, 2427 & 2440/19 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
WA.No.2419 OF 2019
JUDGMENT IN WP(C) 33208/2016(A) OF HIGH COURT OF KERALA
APPELLANT/S:
1 SREEJA V.,
AGED 30 YEARS
VERIKKOTTIL HOUSE, VEDANAMKURISSI P.O., PALAKKAD
- 679 121.
2 DR.MANJUSHA VARMA,
ASSISTANT PROFESSOR, DEPARTMENT OF HISTORY, NSS
HINDU COLLEGE, CHANGANASSERY - 686 101.
3 DR.DANYA R.,
ANUPALLAVI, CHUNGATHARA P.O., NILAMBUR - 679
334.
4 DR.SUDHEER SALAM,
ASSISTANT PROFESSOR, FILM STUDIES, TUNJATHU
EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O.,
TIRUR, MALAPPURAM - 676 502.
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP (SR.)
SMT.ANUROOPA JAYADEVAN
SHRI.ASHRUTH NASER
RESPONDENT/S:
1 DR. P.SATHEESH,
AGED 40 YEARS
PALANKI HOUSE, KALICHAMPOTI, MADIKAI P.O.,
NILESHWAR VIA., KASARAGOD - 671 314.
WA.2419, 2427 & 2440/19 2
2 DR.PRIYA M.,
MACHINCHERY HOUSE, CHERUTHURUTHY P.O., THRISSUR
- 679 531.
3 DR.JITHA G.,
ROMA SKY HEIGHTS, COCHIN UNIVERSITY P.O., KOCHI
- 682 022.
4 DR.JENSON JOSEPH,
UZHATHIPARAMBIL,MANOOR SOUTH P.O., KOTTAYAM -
686 603.
5 DR.RAJESH K.,
KOTTARAT HOUSE, KANDASSANKKADAVUP.O., THRISSUR -
680 613.
6 SREEJA K.,
KOOMOCHINGAL HOUSE,MAVOOR VIA., KOZHIKODE - 673
661.
7 DR.SHAHUL AMEEN,
RUKUN PALACE 1, MUSLIM SOCIETY, NAVRANGPURA,
AHEMEDABAD, GUJARAT.
8 DR.SANTHOSH KUMAR P.K.,
DOOR NO.3, SRI SRINIVASAM, SYNDICATE BANK
COLONY, ARRIKARE, BENGALURU - 560 076.
9 RAMSHEENA C.A.,
CA MANZIL, CHELEMBRA P.O., RAMANATTUKARA,
MALAPPURAM - 673 634.
10 GEETHA G.,
MF 5/4004, VRINDAVANAN GARDENS, PATTOM PALACE,
TRIVANDRUM - 695 004.
11 TUNJATHU EZHUTHACHAN MALAYALAM UNIVERSITY,
VAKKAD P.O., TIRUR, MALAPPURAM - 676 502,
REPRESENTED BY ITS REGISTRAR.
12 K.JAYAKUMAR,
VICE-CHANCELLOR AND CHAIRMAN OF THE SELECTION
COMMITTEE, TUNJATHU EZHUTHACHAN MALAYALAM
UNIVERSITY, VAKKAD P.O., TIRUR, MALAPPURAM - 676
502.
13 DR.JAINY VARGHESE,
PUNNAKKERI HOUSE, ULAVEYPU, CHERTHALA, ALAPPUZHA
WA.2419, 2427 & 2440/19 3
- 688 524.
14 DR.K.S.HAKEEM,
RESEARCH SCHOLAR, DEPARTMENT OF SOCIOLOGY, DELHI
SCHOOL OF ECONOMICS, DELHI UNIVERSITY - 110 007.
15 DR.SREERAJ,
ASSISTANT PROFESSOR, SOCIOLOGY, TUNJATHU
EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O.,
TIRUR, MALAPPURAM - 676 502.
16 DR.SREEJA N.G.,
ASSISTANT PROFESSOR, HISTORY, TUNJATHU
EZHUTHACAHAN MALAYALAM UNIVERSITY, VAKKAD P.O.,
TIRUR, MALAPPURAM - 676 502.
17 DR.S.S.SWAPNA RANI,
ASSISTANT PROFESSOR, SOCIOLOGY, TUNJATHU
EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O.,
TIRUR, MALAPPURAM - 676 502.
18 VIDHYA R.,
ASSISTANT PROFESSOR, FILM STUDIES, TUNJATHU
EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O.,
TIRUR, MALAPPURAM - 676 502.
R12 BY ADV. SRI.GEORGE POONTHOTTAM (SR.)
R12 BY ADV. SMT.NISHA GEORGE
R14, R17 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY
R14, R17 BY ADV. SMT.N.SANTHA
R14, R17 BY ADV. SRI.V.VARGHESE
R14, R17 BY ADV. SRI.PETER JOSE CHRISTO
R14, R17 BY ADV. SRI.S.A.ANAND
R14, R17 BY ADV. SMT.K.N.REMYA
R14, R17 BY ADV. SMT.L.ANNAPOORNA
R14, R17 BY ADV. SHRI.VISHNU V.K.
R14, R17 BY ADV. KUM.ABHIRAMI K. UDAY
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
18.02.2020, ALONG WITH WA.2427/2019, WA.2440/2019, THE COURT
ON 19.05.2020 DELIVERED THE FOLLOWING:
WA.2419, 2427 & 2440/19 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
WA.No.2427 OF 2019
JUDGMENT IN WP(C) 33208/2016(A) OF HIGH COURT OF KERALA
APPELLANT/S:
1 K.S.HAKIM (WRONGLY SHOWN AS DR.K.S.HAKEEM IN THE
CAUSE TITLE OF W.P.(C)NO.33208/2016),
AGED 31 YEARS
RESEARCH SCHOLAR, DEPARTMENT OF SOCIOLOGY, DELHI
SCHOOL OF ECONOMICS, DELHI UNIVERSITY, PIN-
110007 (NOW WORKING AS ASSISTANT PROFESSOR AND
HEAD, DEPARTMENT OF SOCIOLOGY, THUNCHATHU
EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O.,
TIRUR, MALAPPURAM, PIN- 676502).
2 DR.S.S.SWAPNA RANI,
ASSISTANT PROFESSOR, SOCIOLOGY, THUNCHATHU
EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O.,
TIRUR, MALAPPURAM, PIN- 676502.
BY ADVS.
SRI.S.P.ARAVINDAKSHAN PILLAY
SMT.N.SANTHA
SRI.V.VARGHESE
SRI.PETER JOSE CHRISTO
SRI.S.A.ANAND
SMT.K.N.REMYA
SMT.L.ANNAPOORNA
SHRI.VISHNU V.K.
KUM.ABHIRAMI K. UDAY
RESPONDENT/S:
1 DR.P.SATHEESH,
PALANKI HOUSE, KALICHAMPOTI, MADIKAI P.O.,
NILESHWAR VIA, KASARAGOD - 671314.
WA.2419, 2427 & 2440/19 5
2 DR.PRIYA M.,
MACHINCHERY HOUSE, CHERUTHURUTHY P.O., THRISSUR
- 679 531.
3 DR.JITHA G.,
ROMA SKY HEIGHTS, COCHIN UNIVERSITY P.O., KOCHI
- 682022.
4 DR.JENSON JOSEPH,
UZHATHIPARAMBIL, MANOOR SOUTH P.O., KOTTAYAM -
686603.
5 DR.RAJESH K.,
KOTTARAT HOUSE, KANDASSANKKADAVU P.O., THRISSUR-
680613.
6 SREEJA K.,
KOOMOCHINGAL HOUSE, MAVOOR VIA, KOZHIKODE -
673661.
7 DR.SHAHUL AMEEN,
RUKUN PALACE 1, MUSLIM SOCIETY, NAVRANGPURA,
AHEMEDABAD, GUJARAT.
8 DR. SANTHOSH KUMAR P.K.,
DOOR NO.3, SRI SRINIVASAM, SYNDICATE BANK
COLONY, ARRIKKARA, BANGALORU - 5600076.
9 RAMSHEENA C.A.,
CA MANZIL, CHELEMBRA P.O., RAMANATTUKARA,
MALAPPURAM- 673634.
10 GEETHA G.,
MF5/4004, VRINDAVAN GARDENS, PATTOM PALACE,
TRIVANDRUM-695004.
11 TUNJATHU EZHUTHACHAN MALAYALAM UNIVERSITY,
VAKKAD P.O., TIRUR, MALAPPURAM-676502,
REPRESENTED BY ITS REGISTRAR.
12 K.JAYAKUMAR,
VICE CHANCELLOR AND CHAIRMAN OF THE SELECTION
COMMITTEE, TUNJATHU EZHUTHACHAN MALAYALAM
UNIVERSITY, VAKKAD P.O., TIRUR, MALAPPURAM-
676502.
13 DR.JAINY VARGHESE,
WA.2419, 2427 & 2440/19 6
PUNNAKKERI HOUSE, ULAVEYPU, CHERTHALA,
ALAPPUZHA-688524.
14 SMT.SREEJA V.,
VERIKKOTTIL HOUSE, VEDANAMKURISSI P.O.,
PALAKKAD-679121.
15 DR. MANJUSHA VARMA,
ASSISTANT PROFESSOR, DEPARTMENT OF HISTORY, NSS
HINDU COLLEGE, CHANGANASSERY -686101.
16 DR. DANYA R.,
ANUPALLAVI, CHUNGATHARA P.O., NILAMBOOR -
679334.
17 DR. SREERAJ,
ASSISTANT PROFESSOR, SOCIOLOGY, TUNJATHU
EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O.,
TIRUR, MALAPPURAM-676502.
18 DR. SREEJA N.G.,
ASSISTANT PROFESSOR, HISTORY, TUNJATHU
EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O.,
TIRUR, MALAPPURAM-676502.
19 VIDHYA R.,
ASSISTANT PROFESSOR, FILM STUDIES, TUNJATHU
EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O.,
TIRUR, MALAPPURAM-676502.
20 DR. SUDHEER SALAM,
ASSISTANT PROFESSOR, FILM STUDIES, TUNJATHU
EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O.,
TIRUR, MALAPPURAM-676502.
R2, R6 BY ADV. SRI.ELVIN PETER P.J.
R2, R6 BY ADV. SRI.K.R.GANESH
R12 BY ADV. SRI.GEORGE POONTHOTTAM (SR.)
R12 BY ADV. SMT.NISHA GEORGE
R14-16, R20 BY ADV. SRI.K.GOPALAKRISHNA KURUP
(SR.)
R14-16, R20 BY ADV. SHRI.ASHRUTH NASER
R14-16, R20 BY ADV. SRI.N.SATHEESH
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
18.02.2020, ALONG WITH WA.2419/2019, WA.2440/2019, THE COURT
ON 19.05.2020 DELIVERED THE FOLLOWING:
WA.2419, 2427 & 2440/19 7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942
WA.No.2440 OF 2019
JUDGMENT IN WP(C) 33208/2016(A) OF HIGH COURT OF KERALA
APPELLANT/S:
1 DR. JAINY VARGHESE
AGED 35 YEARS
PUNNAKKERI HOUSE,ULAVEYPU,
CHERTHALA,ALAPPUZHA-688 524.
2 DR.SREERAJ,
ASSISTANT PROFESSOR,HISTORY,
THUNCCHATU EZHUTHACHAN MALAYALAM
UNIVERSITY,VAKKAD P.O.,
TIRUR,MALAPPURAM-676 502.
3 DR.SREEJA L.G.,
ASSISTANT PROFESSOR,HISTORY,
THUNCHATU EZHUTHACHAN MALAYALAM
UNIVERSITY,VAKKAD P.O.,TIRUR,MALAPPURAM-676 502.
4 VIDYA R.,
ASSISTANT PROFESSOR,FILM STUDIES,
THUNCHATU EZHUTHACHAN MALAYALAM UNIVERSITY,
VAKKAD P.O.,TIRUR,
MALAPPURAM-676 502.
BY ADVS.
SRI.K.JAJU BABU (SR.)
SRI.VIJU ABRAHAM
SRI.ALBERT V.JOHN
SMT.ROSHNI MANUEL
SMT.VARNA MANOJ
WA.2419, 2427 & 2440/19 8
RESPONDENT/S:
1 DR. P.SATHEESH
AGED 40 YEARS,PALANKI HOUSE,KALICHAMPOTI,
MADIKAI P.O.,NILESHWAR VIA,KASARGOD-671 314.
2 DR.PRIYA M.,
MACHINCHERY HOSUE,CHERUTHURUTHY P.O.,
THRISSUR-679 531.
3 DR.JITHA G.,
ROMA SKY HEIGHTS,COCHIN UNIVERSITY P.O.,KOCHI-
682 022.
4 DR.JENSON JOSEPH,
UZHATHIPARAMBIL,MANOOR SOUTH P.O.,
KOTTAYAM-686 603.
5 DR.RAJESH K.,
KOTTARAT HOUSE,
KANDASSANKKADAVU P.O.,
THRISSUR-680 613.
6 SREEJA K.,
KOOMOCHINGAL HOUSE,MAVOOR VIA.
KOZHIKODE -673 661.
7 DR.SHAHUL AMEEN,
RUKUN PALACE 1,MUSLIM SOCIETY,
NAVRANGPURA,AHEMEDABAD,
GUJARAT-380 009.
8 DR.SANTHOSH KUMAR P.K.,
DOOR NO.3, SRI.SRINIVASAM,SYNDICATE BANK
COLONY,ARRIKARE,
BENGALURU-560 076.
9 RAMSHEENA C.A.,
CA MANZIL,CHELEMBRA P.O.,RAMANATTUKARA,
MALAPPURAM-673 634.
10 GEETHA G.,
MF 5/4004,VRINDAVAN GARDENS,
PATTOM PLACE,TRIVANDRUM-695 004.
11 THUNCHATH EZHUTHACHAN MALAYALAM UNIVERSITY,
VAKKAD P.O.,TIRUR,MALAPPURAM-676 502.
REPRESENTED BY ITS REGISTRAR.
WA.2419, 2427 & 2440/19 9
12 K.JAYAKUMAR,
VICE CHANCELLOR AND CHAIRMAN OF THE SELECTION
COMMITTEE,
THUNCHATH EZHUTHACHAN MALAYALAM
UNIVERSITY,VAKKAD P.O.,TIRUR,
MALAPPURAM-676 502.
13 SREEJA V.,
VERIKKOTTIL HOUSE,VEDANAMKURISSI P.O.,
PALAKKAD-679 121.
14 DR.MANJUSHA VARMA,
ASSISTANT PROFESSOR,DEPARTMENT OF HISTORY,NSS
HINDU COLLEGE,
CHANGANASSERY-686 101.
15 DR.K.S.HAKEEM,
RESEARCH SCHOLAR,DEPARTMENT OF SOCIOLOGY,DELHI
SCHOOL OF ECONOMICS,
DELHI UNIVERSITY-110 007.
16 DR.DANYA R.,
ANUPALLAVI,CHUNGATHARA P.O.,
NILAMBUR-679 334.
17 DR.S.S.SWAPNA RANI,
ASSISTANT PROFESSOR,SOCIOLOGY,
THUNCHATH EZHUTHACHAN MALAYALAM
UNIVERSITY,VAKKAD P.O.,TIRUR,
MALAPPURAM-676 502.
18 DR.SUDHEER SALAM,
ASSISTANT PROFESSOR,FILM STUDIES,THUNCHATH
EZHUTHACHAN MALAYALAM UNIVERSITY,VAKKAD
P.O.,TIRUR,MALAPPURAM-676 502.
R12 BY ADV. GEORGE POONTHOTTAM (SR.)
R13-14, R16, R18 BY ADV. K.GOPALAKRISHNA KURUP
(SR.)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
18.02.2020, ALONG WITH WA.2419/2019, WA.2427/2019, THE COURT
ON 19.05.2020, DELIVERED THE FOLLOWING:
WA.2419, 2427 & 2440/19 10
A.M.SHAFFIQUE
&
V.G.ARUN, JJ.
-----------------------------------------------
W.A.Nos.2419, 2427 and 2440 of 2019
-----------------------------------------------
Dated this the 19th day of May, 2019
JUDGMENT
Arun, J.
These writ appeals are filed by respondents 3 to 12 in the writ petition. The writ petition was filed by respondents 1 to 10 in these writ appeals challenging the procedure for selection and appointment to the post of Assistant Professor adopted by the Thunchath Ezhuthachan Malayalam University ('the University', for short). The prayer in the writ petition was to quash Exhibit P9 rank list and the appointment of respondents 3 to 12.
2. The brief facts, as narrated in the writ petition, are as under:
The University issued Exhibit P1 notification dated 22.7.2016, inviting applications from eligible candidates for appointment to various posts, including 10 posts of Assistant Professors. The petitioners had applied for the notified post of Assistant Professors and had attended the interview conducted from 3.10.2016 to 6.10.2016. The petitioners were not included in the ranked list published on 9.10.2016 and thereupon the writ petition was filed, WA.2419, 2427 & 2440/19 11 challenging the selection procedure and the consequent appointment of respondents 3 to 12.
3. The challenge against the selection and appointment is based on the violation of the procedure for selection prescribed in the UGC (Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (for short, the UGC Regulations, 2010). The alleged violations are;
(i) The Academic Performance Indicator (API) scores of the candidates was not considered for assessing their merit.
(ii) The constitution of the Selection Committee was contrary to the stipulations .
(iii) The prescribed number of experts were not included in the Selection Committees.
(iv) The persons included in the Selection
Committees were either not experts in the
concerned subjects or did not have the requisite qualification to be a member of the Selection Committee
(v) The experts in the Selection Committee were not WA.2419, 2427 & 2440/19 12 nominated from among the panel of names approved by the Executive Committee. It was alleged that the constitution of Selection Committees and the selection itself was bad since the University had not framed the regulations prescribing the qualifications of teachers, as has been mandated under the Thunchath Ezhuthachan Malayalam University Act, 2013 (Act No.24 of 2013).
In addition, allegation of malafides and bias was also raised.
4. In elaboration of the challenge, it was contended that even though clause 5.1.1(a)(2) of the UGC Regulations, 2010 require nomination of three experts in the concerned subject by the Vice- Chancellor, from out of the panel of names approved by the relevant statutory body of the University, neither was the panel approved by the Executive Committee, nor were the persons nominated by the Vice Chancellor experts in the concerned subjects. It was contended that Clause 5.1.1(b) was violated by the absence of two outside subject experts among the four members required to constitute the quorum for a selection committee. Specific instances of lack of expertise of the members included in the selection committee was pointed out. With respect WA.2419, 2427 & 2440/19 13 to the inclusion of one T. P. Kunhikannan, as a member in all the Selection Committees, it was alleged that he did not have Ph.D in any subject and that he was instrumental in making appointments on extraneous considerations and for favoring the near and dear of himself and the Vice Chancellor.
5. Relying on clause 6.0.1 it was contended that analysis of the merits and credentials of the applicants ought to have been on the basis of his/her performance on a scoring system proforma, based on the API Scores provided at Table-I to IX of Appendix-III to the UGC Regulations, 2010. It was alleged that even though intimations were issued to the writ petitioners in accordance with the UGC Regulations,2010 requiring production of their API scores, the selection committees did not accept the API scores or even advert to the same for assessing the comparative merit of the candidates. In support of this contention, Exhibit P13 score sheet, with respect to the selection of Assistant Professors in Environmental Studies was produced.
6. Section 49 of the University Act was relied on to contend that the qualification of teachers of the University was to be prescribed by framing regulations. It was contended that the Academic Council not having framed the regulations, no selection could be conducted.
WA.2419, 2427 & 2440/19 14
7. Exhibit P10 interim order in W.P(C).No.41752 of 2018 was pressed into service to contend that there was no properly constituted Executive Committee for the University and therefore Exhibit P9 ranked list published by an incompetent Executive Committee was invalid.
8. Section 49 of the University Act was relied on to contend that the qualification of teachers of the University was to be prescribed under the regulations framed by the Academic Council. It was contended that since the regulations prescribing qualifications for teachers was not framed by the University, the selection procedure, based on the qualifications prescribed under the UGC Regulations, 2010 is illegal.
9. Refuting the allegations and countering the contentions the University submitted that the selection committee was constituted from a panel of persons approved by the Executive Committee and consisted of the requisite number of experts. That, as stipulated by the UGC Regulations, 2010 the candidates were evaluated on academic and research accomplishment(50%), domain knowledge (30%) and performance in the interview (20%), using structured score sheets. The ranked list prepared by the selection committee and approved by the executive committee was published in the University's website on 7.10.2016. That, WA.2419, 2427 & 2440/19 15 candidates included in the rank list were appointed on 13.10.2016 based on their rank and reservation position, as evidenced by Exhibits R1(d) to R1(m) proceedings. The API scores of candidates were considered as a parameter to assess academic achievements and teaching skills of candidates. The challenge against the expertise of the persons included in the selection committee was sought to be repelled by pointing out that experts were included in the panel considering their vast knowledge and experience and not merely based on academic excellence. According to the University, the procedure for selection was conducted with utmost care and diligence and was bereft of any procedural lapse.
10. The party respondents submitted that they were appointed after a due process of selection. It was contended that after having participated in the selection process without demur, the petitioners cannot turn around and challenge the selection, on their being unsuccessful.
11. The learned Single Judge, relying on clause 5.1.1(a) of the UGC Regulations 2010, upheld the challenge against the constitution of the selection committee. It was found that when the regulations prescribed essential qualifications for the candidates, the subject experts should also be persons with such qualifications. With reference to Section 49(c) of the University WA.2419, 2427 & 2440/19 16 Act providing for framing of regulations prescribing the qualification of teachers, it was found that without framing selection of teachers should not have been conducted. The contention of the University that the teachers and other faculties were appointed on the basis of the First Statutes was found to be without force of law and the constitution of the interview board was held to be in total violation of the UGC Regulations, 2010 and the University Act, 2013. It was found that, neither the University nor the party respondents had convincingly and satisfactorily disputed the contention advanced by the petitioners that the specifications contained under Regulation 6.0.2 as well as Appendix III thereunder was not adopted. The contention of the petitioners of split up figure in accordance with Appendix III not being provided in the score sheet and only total score being provided, was accepted. The challenge against the competence of the petitioners to question the selection process after having participated in it was repelled on the reasoning that the entire selection process being in total violation of the UGC Regulations and the University Act, 2013, dismissal of the writ petition will amount to perpetuation of an illegality. Based on the findings, the learned Single Judge set aside the selection of respondents 3 to 12, while refusing to quash the entire selection for want of all the WA.2419, 2427 & 2440/19 17 affected persons in the party array.
12. Heard learned Senior Counsel Sri.K.Gopalakrishna Kurup and Sri.Jaju Babu, and learned counsel Sri.S.P.Aravindakshan Pillai, appearing for the appellants, Sri.M.P.Sreekrishnan and Sri.Elvin Peter appearing for the party respondents, Sri.P.C.Sasidharan, learned Standing Counsel for the University and Senior Counsel Sri.George Poonthottom appearing for the former Vice Chancellor, who has been impleaded in his personal capacity.
13. Assailing the findings in the impugned judgment, the learned counsel for the appellants contended that inasmuch as Ext. P1 notification did not provide for reckoning of API scores as a criterion for selection, the non-reckoning of the API scores of candidates was of no avail. It is pointed out that, under Appendix- III Table-II(c) to the UGC Regulations, 2010 there is no stipulation for reckoning of API scores as a criterion for recruitment of Assistant Professors, whereas in the case of Associate Professor and Professor, consolidated API scores requirement of 300 and 400 points respectively, is prescribed. It is contended that having participated in the selection pursuant to Ext. P1 and having failed to challenge the notification on the ground of absence of stipulation for reckoning API scores, the contention that non- reckoning of API scores as a criterion for selection has rendered WA.2419, 2427 & 2440/19 18 the selection invalid, ought to have been rejected.
14. Challenging the finding that in the absence of regulations prescribing the qualifications there could have been no selection and constitution of selection committees it is contended that, qualification for appointment as Assistant Professor having been prescribed by the UGC, the University was bound to follow such qualification, irrespective of whether regulations adopting the qualifications was framed or not. In support of the contention, reliance is placed on the decision of the Full Bench in Radhakrishna Pillai. (Dr) v. Travancore Devaswom Board. (2016 (2) KLT 245].
15. The finding of the subject experts not having sufficient qualifications in terms of the UGC Regulations, 2010 is challenged on the premise that there is no such stipulation in the Regulations and that such requirement is mandated only in the case of academicians representing SC/ST/OBC/minority/women/differently abled categories included in selection committees before which candidates belonging to the above mentioned categories were to appear for interview.
16. The finding in the impugned judgment that many members of the committees were not experts and didn't have the required qualifications or, as in the case of Sri.T.P.Kunhikkannan, WA.2419, 2427 & 2440/19 19 had vested interest, is assailed on the ground that the court should not have entertained such a challenge without the persons against whom aspersions are cast being made parties to the lis. In support of this contention, reliance is placed on the decision of the Honourable Supreme Court and of this Court in Ashok Kumar Yadav v. State of Haryana 1984 (4) SCC 417.
17. It is contended that there is no challenge against selection of experts, without which the learned Single Judge could not have held their selection to be illegal. It is the contention of the learned counsel that experts were nominated to the selection committees based on the recommendation of the Executive Committee, which fact was clearly stated in the counter affidavit and therefore the finding to the contrary in the impugned judgment is factually incorrect. Reference is made to paragraph 5 of the counter affidavit wherein it is stated that applicants to the post of Assistant Professors in various subjects were called for interview before the selection committee approved by the Executive Committee. It is submitted that the Executive Committee had, as per resolution No.16/13 dated 23.9.2016, approved the panel of members and the Vice Chancellor had, in terms of such approval, issued order No.481/2016/VC dated 28.9.2016, constituted the Selection Committees. Proceedings in WA.2419, 2427 & 2440/19 20 this regard is handed over across the bar, much to the chagrin of the learned counsel for the respondents.
18. As regards the prayers in the writ petition, the contention is that, in spite of the appointment orders being produced, no challenge was raised against those orders and the petitioners were satisfied with the omnibus prayer to set aside the entire selection. It is submitted that the writ petition is only an experimental litigation, which would be evident from the fact that there is no pleading of the petitioners being more qualified or meritorious than the selected candidates. It is pointed out that all the petitioners are employed, some of them in the University itself and that direction to terminate the appellants from service based on the unsubstantiated allegations in the writ petition is a travesty of justice.
19. In addition to the grounds successfully canvassed before the learned Single Judge, the learned counsel for the respondents made the following submissions in support of the impugned judgment;
The constitution of the Selection Committee being against the mandate of Regulation 5.1.1, the fact that appointment of the selection committee members was not separately challenged will not efface the illegality. The University having admitted of having WA.2419, 2427 & 2440/19 21 considered API scores as a parameter to assess academic achievements and teaching skills of candidates during the selection process, the contention that minimum API scores is not a criteria for selection to the post of Assistant Professor is liable to be rejected. In answer to the contention that minimum API score is not prescribed in Appendix-III Table II(c) for Assistant Professors, it is argued that, even in such a case, API score was liable to be considered for weightage along with the specified eligibility qualifications. It is pointed out that some teachers of the University had earlier approached this Court challenging the power of the Executive Committee without the requisite quorum to pass resolutions regarding policy matters. The challenge was on the ground that the resolutions passed by the Executive Committee is in violation of Section 14(6) of the University Act which prescribes the minimum quorum for an Executive Committee meeting. It is pointed out that a Division Bench of this Court had found substance in the challenge and had issued Exhibit P10 interim order, restraining further appointments or policy decisions concerning the administration of the University being taken by an Executive Committee without quorum. It is the submission of the learned Counsel that even with respect to the selection process under challenge in the instant case, an Executive Committee WA.2419, 2427 & 2440/19 22 without quorum had taken the decisions.
20. It is submitted that as per Section 11(m) of the University Act, the General Council of the University is empowered to make statutes regulating the method of selection to the Executive Committee and other authorities of the University, the procedure at the meetings of the General Council, the Executive Committee and other authorities of the University and the quorum of the members required for transaction of business in any of the authorities of the University. No statute regulating the procedure at the meetings of the Executive Committee having been framed till date, the meetings of the Executive Committee would be governed by the general law regarding meetings. It is alleged that no meeting of the Executive Committee had been convened with notice to its members before taking decisions with respect to the selection of Assistant Professors and in the absence of statute prescribing the procedure for meetings, a decision taken by circulation is illegal. The learned counsel relied on the decision in Ajitha v. Mahatma Gandhi University [2001 (2) KLT 878] to contend that a Guest Lecturer of the University cannot be termed as an outside expert. The decision of the Supreme Court in Dr. Triloki Nath Singh v. Dr. Bhagawan Din Misra [(1990) 4 SCC 510] is relied on to contend that subject experts should be experts WA.2419, 2427 & 2440/19 23 in the concerned subject itself. In conclusion, the learned counsel contends that no valid ground has been made out in the appeals to unsettle the well reasoned findings in the impugned judgment.
21. The learned Standing Counsel for the University points out that the First Statutes of the University was framed by the Government only as per SRO No. 57/2020 dated 9.12.2019.
22. We have carefully considered the rival contentions, statutory provisions and the precedents.
23. Appendix-III Table-II(c) of Part III to the UGC Regulations, 2010 justifies the contention of the appellants. Even though in the Table attached to Appendix-III, a column is set apart for minimum API scores, in the case of Assistant Professors, no consolidated API score requirement is prescribed, unlike in the case of Associate Professor and Professor. A reading of Clauses 6.1.0 and 6.2.0 also make it evident that Tables-I & III of Appendix-III are applicable to the selection of Professors/Associate Professors/Assistant Professors in Universities and Colleges and Table-II(c) of Appendix- III provides norms for direct recruitment of teachers of different cadres. API score not having been prescribed as a criteria for direct recruitment to the post of Assistant Professor, the finding in the impugned judgment that the specifications contained under Clause 6.0.0, as well as the Appendix are not followed by the WA.2419, 2427 & 2440/19 24 interview board cannot be sustained.
24. The next aspect to be considered is the impact, if any, of the non-framing of regulations prescribing qualification for appointment to various teaching posts, incuding that of Assistant Professor. The fact that the stipulation and prescriptions in the UGC Regulations of 2010 are binding on the Universities is indisputable. Since the University could not have framed regulations prescribing qualifications at variance with the UGC the Regulations, 2010, the fact that the University had not framed the Regulations as provided under Section 49(c) of the University Act does not either fetter the right of the University to effect appointment in accordance with UGC Regulations, 2010 or render the appointments effected on that basis illegal. The precedence of the UGC Regulations over the University Acts and Statutes was considered and upheld by the Full Bench in Radhakrishna Pillai's case (supra). The Full Bench declared that 'irrespective of whether the University Acts enacted under Entry 25 of list III of the Statutes framed there under are amended in line with the UGC Regulations or not, in view of its adoption by the State of Kerala with effect from 18 9 2010, as per Government order dated 12 10 2010, the universities and affiliated colleges in Kerala State are bound to comply with the UGC regulations, 2010. The Full WA.2419, 2427 & 2440/19 25 Bench further held that, having regard to the law laid down in Kalyani Mathivanan, in the event of repugnancy between the UGC Regulations and the University enactments and the Statutes, the latter would be void.
25. Now we come to the question as to whether the selection was conducted in violation of the of the UGC Regulations,2010, as has been found in the impugned judgemnt. Regulation 5.1.1, which, according to the learned single judge was violated, is extracted here under.
5.1.1. Assistant Professor in the University.
(a) the selection committee for the post of assistant professor in the University shall have the following composition.
1. The Vice Chancellor shall be the chairperson of the selection committee.
2. Three experts in the concerned subject nominated by the Vice Chancellor out of the panel of names approved by the relevant statutory body of the university concerned.
3. Dean of the concerned faculty, wherever applicable.
4. Head/chairperson of the Department/school. WA.2419, 2427 & 2440/19 26
5. An academician nominated by the Vice Chancellor/Chancellor, wherever applicable.
6. An academician representing SC/ST/minority/ woman/differently-abled categories to be nominated by the Vice Chancellor or acting Vice Chancellor, if any of the candidates representing these categories is the applicant and if any of the above members of the selection committee do not belong to that category.
(b) at least 4 members, including two outside subject experts shall constitute the quorum.
The fact that the experts in the concerned subject were nominated by the Vice-chancellor from the panel of names approved by the Executive Committee of the University having been established, non-compliance of regulation 5.1.1(a)(2) is no longer open for debate, except for the limited purpose of considering as to whether the persons nominated by the Vice-Chancellor were experts in the concerned subject. The learned Single Judge held the experts to be unqualified on the premise that the experts in the selection committee should be academically qualified in the concerned subject, at least as much as the candidates. It is in WA.2419, 2427 & 2440/19 27 support of this finding that the learned Counsel for the petitioners relied on the decisions in and the Dr. Triloki Nath Singh and Ajitha (supra). In Dr. Triloki Nath Singh (supra), the University of Lucknow had conducted selection to the post of reader in linguistics in the Department of Hindi. The three outside experts included in the selection committee were experts in Hindi literature and not linguistic experts. The appointment of the first rank holder pursuant to the selection was challenged by the second rank holder on the ground that the selection committee was not a legally constituted committee and hence its recommendation could not have been acted upon. The High Court set aside the selection, holding that the prospectus of the University showed that Linguistics was a separate subject of study and that the Chancellor had committed a mistake in drawing up a panel of experts in Linguistics by nominating experts from the subject 'Hindi'. Dr. Singh, the first rank holder, appealed before the Hon'ble Supreme Court. After scrutiny of the the prospectus pertaining to the subjects of Hindi and Linguistics, the Apex Court held that the courses of study showed that Hindi language and literature and Linguistics are two different and separate subjects. The admitted position that separate panel of experts was drawn for the subjects of Hindi and Linguistics was also taken note while WA.2419, 2427 & 2440/19 28 rejecting the appeal.
26. In Ajitha the selection process was assailed on the premise that though the statute mandated inclusion of two outside experts, there was only one outside expert in the selection committee as the other expert was an insider, being a Guest Lecturer in the University. The challenge was upheld, finding that the expert, who was alleged to be an insider, was drawing remuneration from the university funds for delivering lectures. It was held that, when constitution of the selection committee is proved to be not in conformity with the statute providing for the scheme, the select list drawn up by such improperly constituted committee would not have any legal efficacy.
27. In the case at hand the learned Single Judge has held that when the UGC Regulations prescribe essential qualification, that does mean that the subject experts should be persons with such qualifications and not persons who have got experience in such faculties without the qualification required to be a member in the interview board. It is not in dispute that the UGC regulations do not prescribe or mandate that the experts included in the selection committee should be persons with such qualifications as is prescribed for the prospective candidates. In this context, it is pertinent to note that unlike other universities offering regular WA.2419, 2427 & 2440/19 29 subjects of study, the curricula and the syllabus of the Thunchath Ezhuthachan Malayalam University are entirely different. The preamble to the University Act shows that the University is established for the promotion of study and research of Malayalam language and literature and Kerala culture. The objects of the University, as propounded in Section 5 of the University Act, reads as under;
(a) to formulate and implement various programs in such a way as to make proud about mother tongue and to encourage studies among Malayalees;
(b)imparting education at the postgraduate level on different areas of Malayalam literature, science, humanities, social science and technology through Malayalam medium, Malayalam language and linguistics, comparative literature, Malayalam criticism, antique, ancient record, evolution of South Indian language scripts, history of scripts, tribal language study, regional language study, the study in the categories of Poem, Short story, Novel, Study of Kerala Renaissance History, Science, Science and Technology and Social Sciences, Epigraphy, Archaeology and Museology, and Translation into and from Malayalam; WA.2419, 2427 & 2440/19 30
(c) imparting education on the various manifestations of Kerala's culture, particularly in the areas of folklore and the written and unwritten cultural heritage, performing arts, traditional architecture, folk tales, classical and contemporary music, theatre, art of engraving, study of folklore and martial arts;
(d) offering courses of study on Kerala's heritage, traditional knowledge systems, cultural anthropology and media studies with modern technical knowledge;
(e) undertaking research programs of specific area within the overall context of Kerala's culture, heritage, language and literature for making Malayalam script more adaptable to computer technology and to equip Malayalam to express advanced knowledge in science and technology;
(f) to publish in Malayalam the literary
composition regarding the culture, heritage and
language of Kerala;
(g) taking up projects for collection,
documentation, preservation and in inventorisation of cultural expressions of Kerala, including valuable manuscripts, using modern technology.
WA.2419, 2427 & 2440/19 31
28. On a holistic consideration of all relevant factors like the purpose behind establishment of the University and the objects sought to be achieved through the various courses of study, we are of the firm opinion that the selection of experts by a University like the Thunchath Ezhuthachan Malayalam University, need not be on the basis of academic qualification alone. As has been repeatedly held by the Apex Court, writ courts should be loathe to interfere in academic matters, which is best left to the experts. Dalpat Abasaheb Solunke and Ors V. Dr. B.S Mahajan and Ors. (1990 (1) SCC 305): Km. Neelima Misra V. Dr. Harinder Kaur Paintal and Ors (1990 (2) SCC 746): Madras Institute of development studies and Anr v. Dr. K. Sivasubramaniyan (2016 (1) SCC 454) being some of the decisions on the point.
29. Yet another reason which prompt us to reject the challenge against the selection of experts is their non- impleadment, in spite of the qualifications and qualities of the experts being questioned. As rightly contended by the learned counsel for the appellants, without challenging the validity of the selection of experts directly, their selection cannot collaterally be questioned while challenging the appointment of the persons selected by those experts. This position has been succinctly laid down by the Hon'ble Supreme Court in Ashok Kumar Yadav v. WA.2419, 2427 & 2440/19 32 State of Haryana 1984 (4) SCC 417. Therein, certain unsuccessful candidates in the recruitment conducted by the Haryana Public Service Commission to various posts in the Haryana Civil Service (Executive) and other Allied Services approached the High Court challenging the selection process, mainly on the ground that, even after scoring high marks in the written test, they were not selected for reason of having secured very low marks in the viva-voce conducted by the members of the Haryana Public Service Commission. It was alleged that the viva- voce test was not conducted fairly and honestly, and the selections made were vitiated on account of nepotism, favouritism, casteism and political motivation. The Division Bench of the Punjab and Haryana High Court allowed the writ petition, holding that the Chairman and members of the Haryana Public Service Commission had been appointed purely on the basis of political partisanship and caste considerations and that they did not satisfy the stringent test of being men of high integrity, calibre and qualification. The Division Bench observed that the Chairman and members of the commission there were not competent to validly wield the golden scale of viva-voce test for entrance for the prestigious public service. The Division Bench further held that, candidates who had obtained high marks in the written WA.2419, 2427 & 2440/19 33 examination had been depressed by award of low marks in the viva test and candidates who had obtained low marks were pulled up by award of high marks in the viva-voce test and the entire selection process was vitiated by an 'obvious oblique motive' and tainted by nepotism, favouritism, caste considerations and political pressures. Based on these findings, the Division Bench set aside the selection and directed the Haryana Public service Commission and the State of Haryana to forthwith declare the result of candidates of all categories on the basis of written examination alone, excluding all considerations of the viva voce test. Aggrieved by the judgment, certain selected candidates approached the Hon'ble Supreme Court. On the scurrilous remarks made against the members of the Haryana Public Service Commission, the Apex Court observed that the highly disparaging observations made against the Chairman and the members of the Haryana Public Service Commission in the impugned judgment cast serious reflection on their character and integrity. The Apex Court held that the condemnatory observations were made against the Chairman and members of the Commission, without them being party respondents to the writ petitions, was clearly in violation of the principles of natural justice. On the question of whether a collateral challenge against the appointment of the WA.2419, 2427 & 2440/19 34 members of the Haryana Public Service Commission could be entertained in a writ petition challenging the selection and appointment conducted by the Commission, the Apex Court held as follows;
"Lastly, we do not think that the Division Bench of the High Court was justified in going into the question whether the Chairman and members of the Haryana Public Service Commission were appointed on account of caste considerations and political patronage or were lacking in integrity, calibre or qualification, when the validity of their appointments was not challenged in the writ petition, nor was any relief claimed for setting aside their appointments. The validity of their appointments could not be questioned collaterally while considering the challenge against the selections made by them. This view receives support from the observations of Chinnappa Reddy. J speaking on behalf of the court in G. Ranga Raju v. State of Andhra Pradesh, 1981 (3) SCR: AIR 1981 Sc 1473. There the learned Judge pointed out: 'The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party, but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation, which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private title cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise, as soon as a judge WA.2419, 2427 & 2440/19 35 pronounces judgement, a litigation may be commenced for a declaration that the judgement is void because the judge is no judge. The judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial pronouncements. We wholly endorse these observations and conclude that the principle underlying these observations must be held to be equally applicable in the present case and the title of the Chairman and members of the Haryana Public Service Commission cannot be allowed to be placed in jeopardy in a proceeding for challenging the selections made by them. This ground of attack against the vality of the selections must therefore be rejected."
30. In the light of the aforementioned authoritative pronouncement of the Hon'ble Supreme Court, the challenge against the appointment of experts in the selection committee was liable to be rejected and therefore, the finding to the contrary in the impugned judgment is hence unsustainable.
31. We also find substantial force in the contention of the appellants that having participated in the selection process without demur without challenging the notification which did not prescribe minimum API Score as an eligibility criterion for appointment as Assistant Professor, the petitioners cannot turn around and challenge the selection process conducted in terms of WA.2419, 2427 & 2440/19 36 the notification, on being unsuccessful in the selection. The legal position that a person who had consciously taken part in a selection process cannot turn around and question the metod of selection is well settled.
32. As far as the contention based on the interim order in W.P (c) No. 41752 of 2017, we find that the interim order was rendered much after the selection and appointment under challenge in the writ petition and that the context in which the interim order was passed has nothing to do with the issue agitated in the writ petition. Even otherwise the interim order in a pending writ petition cannot have any impact on the final decision in this writ appeal.
For the reasons mentioned above the writ appeals are allowed by setting aside the impugned judgments. The writ petition stands dismissed. The parties shall bear their respective costs.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
V.G.ARUN JUDGE vgs