Dr.Venu G.Nair vs Dr.Abhilash.S on 9 December, 2024

[Cites 11, Cited by 0]

Kerala High Court

Dr.Venu G.Nair vs Dr.Abhilash.S on 9 December, 2024

The petitioner filed W.P.(C) No.11281 of 2016 challenging the process of selection to the post of Assistant Professor in Meteorology in the Department of Atmospheric Sciences in the Cochin University of Science and Technology (CUSAT). The writ petition was allowed by judgment dated 26.11.2018. The 1st respondent in the writ petition filed W.A.No.151 of 2019, the 2nd respondent filed W.A.No.139 of 2019 and the 3rd respondent filed W.A.No.6 of 2019. Those appeals were allowed as per a common judgment dated 05.02.2020.

2. The petitioner filed SLP(C) Nos.9809-9811 of 2020 challenging the said judgment. The Apex Court dismissed those special leave petitions as per the order dated 07.09.2020. Thereafter, the petitioner has filed these revision 2024:KER:93082 8 R.P.No.567 of 2021 in W.A.No.139 of 2019, R.P.No.568 of 2021 in W.A.No.151 of 2019 & R.P.No.572 of 2021 in W.A.No.6 of 2019 petitions invoking the provisions of Section 114 and Order XVII, Rule 1 of the Code of Civil Procedure, 1908 (Code).

3. The essential contentions raised by the petitioner are the following:

(i) Out of the total of 100 points, 50 points were allocated for "Academic Record and Research Performance", 30 points for "Assessment of Domain Knowledge and Teaching Skills" and 20 points for "Interview". In Performance Based Appraisal System (PBAS), 15 points intended for "Teaching Skills" were added to "Interview stage", whereby the instructions in UGC Regulations, 2010 were violated. This question was not properly addressed in the appeal judgment.

(ii) The petitioner has 4½ years of teaching experience;

whereas the candidates placed at rank Nos.1 and 2 did not have teaching experience of a single day. But, they were given more marks than the petitioner, and the challenge to the same was not properly considered in the appellate judgment.

(iii) Even the Standing Counsel for the UGC supported the plea against adding 15 points allocated to teaching skills with interview, but the same was ignored by the Division Bench, which again is an error.

(iv) M.Tech. qualification was equated to M.Sc. and that resulted in the petitioner losing 4½ marks, but the Division Bench shut it eyes to the petitioner's plea in 2024:KER:93082 9 R.P.No.567 of 2021 in W.A.No.139 of 2019, R.P.No.568 of 2021 in W.A.No.151 of 2019 & R.P.No.572 of 2021 in W.A.No.6 of 2019 that respect.

(v) The proposition that UGC Regulations are mandatory, which was reinforced by Annexure-V was given a go-bye by the Division Bench when it held valid the decision for detaching 15 marks intended for Teaching Skills and attaching the same to Interview stage which again is an error crept in the judgment of the Division Bench.

4. Heard the learned counsel for the petitioner, learned Standing Counsel for the CUSAT and the learned counsel for the UGC.

5. Annexure-II is the order dated 07.09.2020 by which the Apex Court dismissed SLP(C) Nos.9809-9811 of 2020. In the light of the law laid down by the Apex Court in Kunhayammed v. State of Kerala [(2000) 6 SCC 359] and Khoday Distilleries Ltd. (Now known as Khoday India Limited) v. Sri Mahadeshwara Sahakara Sakkare Karkhane Ltd., Kollegal [(2019) 4 SCC 376] the dismissal of the SLPs in limine does not bar this petition for review.

6. The learned counsel for the petitioner urges that the Division Bench did not properly deliberate upon the 2024:KER:93082 10 R.P.No.567 of 2021 in W.A.No.139 of 2019, R.P.No.568 of 2021 in W.A.No.151 of 2019 & R.P.No.572 of 2021 in W.A.No.6 of 2019 mooted question whether adding 15 marks intended for "teaching skills" to the "interview" stage amounted to violation of UGC Regulations. The view taken by the Division Bench is that the decision to assess teaching skills separately and allocating 15 points by splitting the 30 points intended for "domain knowledge and teaching skills" was taken by the Syndicate of the University and not by the Selection Committee. And, while making assessment of teaching skills separately by a sub committee constituted for that purpose, did not amount to attaching the said 15 points to "interview" stage. The contention that when the UGC Regulations specifically insisted to consider "domain knowledge and teaching skills" as a block and make assessment in that regard cumulatively, the Division Bench should not have taken such a view. It is pointed out that entrusting the responsibility of assessment of teaching skills with a sub committee resulted in a subjective assessment, that too without the aid of modern techniques, and that vitiated the whole process. Such a procedure is said to be violative of the stipulations in the 2024:KER:93082 11 R.P.No.567 of 2021 in W.A.No.139 of 2019, R.P.No.568 of 2021 in W.A.No.151 of 2019 & R.P.No.572 of 2021 in W.A.No.6 of 2019 UGC Regulations as well. Whether the plea of the petitioner that those inadequacies and errors in the appeal judgment would be sufficient reason for a review has to be considered in the light of the law on the point.

7. In Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170] the Apex Court held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of the Code.

8. In Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] the Apex Court, in the context of the power of review under Order XLVII, Rule 1 of the Code held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error that is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1 of the Code. In the exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not 2024:KER:93082 12 R.P.No.567 of 2021 in W.A.No.139 of 2019, R.P.No.568 of 2021 in W.A.No.151 of 2019 & R.P.No.572 of 2021 in W.A.No.6 of 2019 permissible for an erroneous decision to be "reheard and corrected". A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".

9. In Lily Thomas v. Union of India [(2000) 6 SCC 224] the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review.

10. In Anantha Reddy N. v. Anshu Kathuria [(2013) 15 SCC 534] the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for a review. The mistake apparent on record means that the mistake is self-evident, needs no search, and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit the rehearing of the matter on merits.

2024:KER:93082 13 R.P.No.567 of 2021 in W.A.No.139 of 2019, R.P.No.568 of 2021 in W.A.No.151 of 2019 & R.P.No.572 of 2021 in W.A.No.6 of 2019

11. The Apex Court in S.Madhusudhan Reddy v. V.Narayana Reddy and others [2022 SCC OnLine SC 1034 : 2022 (5) KLT SN 18] held that the Court's jurisdiction of review is not the same as that of an appeal. A judgment can be open to review if there is a mistake or an error apparent on the face of the record, but an error that has to be detected by a process of reasoning, cannot be described as an error apparent on the face of the record for the Court to exercise its powers of review under Order XLVII Rule 1 CPC.

12. In the judgment under review after discussing the facts and contentions of the parties concerning the assessment of teaching skills as a separate component, rendered the view as follows:

"8. xx xx When an appointment is made to the post of Assistant Professor, necessarily an evaluation of the teaching skills is very much required and for that purpose, the University felt that assessment of domain knowledge and teaching skills are required to be separately evaluated. Of course, as per the UGC Regulation, assessment of domain knowledge and teaching skills are to be given a maximum of 30 points. There is no change to it, apart from the fact that the assessment criteria has been bifurcated by the University as per the directions issued by the Syndicate."

2024:KER:93082 14 R.P.No.567 of 2021 in W.A.No.139 of 2019, R.P.No.568 of 2021 in W.A.No.151 of 2019 & R.P.No.572 of 2021 in W.A.No.6 of 2019

13. The Division Bench considered the relevant decisions also while taking such a view. There cannot, therefore, be a contention that that question was not considered. Now, the gist of the petitioner's contention is that the said view is incorrect. That is not a matter for review but a ground for appeal. Even Annexure-V, which re-empasise that the UGC Regulations are mandatory does not come to the aid of the petitioner in support of his plea for review in the above circumstances.

14. The petitioner with teaching experience was given less marks than other candidates, who did not have teaching experience. The petitioner urges that the contentions raised by him in that regard were not considered in the appeal judgement. The sub-committee awarded marks after its assessment. In Baidyanath Yadav v. Aditya Narayan Roy [(2020) 16 SCC 799] the Apex Court held that it was not for the Court to sit in judgment over the merit of the candidates and substitute its reasoning for that of the Screening Committee. A judicial review in the matter of assessment of 2024:KER:93082 15 R.P.No.567 of 2021 in W.A.No.139 of 2019, R.P.No.568 of 2021 in W.A.No.151 of 2019 & R.P.No.572 of 2021 in W.A.No.6 of 2019 comparative merits by a Screening Committee under Article 226 of the Constitution of India is held to be very limited. Therefore, the said contention, in any view of the matter, cannot be a ground for review.

15. The grievance that M.Tech. qualification should not have been equated with M.Sc. and the contention raised by the petitioner in that regard was not properly addressed in the appeal judgment cannot also be an error obligating this Court to review the judgment. No such contention was raised before the appellate court and therefore the petitioner cannot now be heard to contend that his plea in that regard was not accepted. The Division Bench, however, held that PBAS appreciation report was duly acknowledged by the petitioner and hence the entry in it based on data cannot be called in question. That takes in the present plea that M.Tech. was illegally equated with M.Sc. Viewed so, the said contention is also not available for the petitioner as a ground for review.

Accordingly, we are of the view that none of the grounds urged by the petitioner can be a reason for reviewing the 2024:KER:93082 16 R.P.No.567 of 2021 in W.A.No.139 of 2019, R.P.No.568 of 2021 in W.A.No.151 of 2019 & R.P.No.572 of 2021 in W.A.No.6 of 2019 common judgment dated 05.02.2020 in W.A.Nos.6, 139 and 151 of 2019. These petitions are therefore dismissed.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

P.G. AJITHKUMAR, JUDGE dkr 2024:KER:93082 17 R.P.No.567 of 2021 in W.A.No.139 of 2019, R.P.No.568 of 2021 in W.A.No.151 of 2019 & R.P.No.572 of 2021 in W.A.No.6 of 2019 APPENDIX OF RP 567/2021 PETITIONER ANNEXURES ANNEXURE 1 TRUE COPY OF JUDGMENT OF THE LEARNED SINGLE JUDGE DATED 26.11.2018, IN WPC NO.11281 OF 2016.

ANNEXURE II CERTIFIED COY OF THE ORDER DATED 7.9.2020 OF THE HONOURABLE SUPREME COURT IN S.L.P.NOS.9809-9811 OF 2020. ANNEXURE III TRUE COPY OF RELEVANT PAGES OF THE UGC REGULATIONS 2010 DATED 30.6.2010.

ANNEXURE IV TRUE COPY OF JUDGMENT DATED 10.5.1991 OF THE HONOURABLE SUPREME COURT REPORTED IN MUNINDRA KUMAR VS. RAJIV GOVIL (1991) 3 SCC 368.

ANNEXURE V TRUE COPY OF UGC CLARIFICATION ON FREQUENTLY ASKED QUESTIONS (FAQ) ISSUED IN SEPTEMBER 2015.

2024:KER:93082 18 R.P.No.567 of 2021 in W.A.No.139 of 2019, R.P.No.568 of 2021 in W.A.No.151 of 2019 & R.P.No.572 of 2021 in W.A.No.6 of 2019 APPENDIX OF RP 568/2021 PETITIONER ANNEXURES ANNEXURE 1 TRUE COPY OF JUDGMENT OF THE LEARNED SINGLE JUDGE DATED 26.11.2018, IN WPC NO.11281 OF 2016.

ANNEXURE II CERTIFIED COPY OF THE ORDER DATED 7.9.2020 OF THE HONOURABLE SUPREME COURT IN SLP. NOS. 9809-9811 OF 2020. ANNEXURE III TRUE COPY OF RELEVANT PAGES OF THE UGC REGULATIONS 2010, DATED 30.6.2010. ANNEXURE IV TRUE COPY OF THE JUDGMENT DATED 10.5.1991 OF THE HONOURABLE SUPREME COURT, REPORTED IN MUNINDRA KUMAR VS. RAJIV GOVIL (1991) 3 SCC 368.

ANNEXURE V TRUE COPY OF UGC CLARIFICATION ON FREQUENTLY ASKED QUESTION (FAQ) ISSUED IN SEPTEMBER 2015.

2024:KER:93082 19 R.P.No.567 of 2021 in W.A.No.139 of 2019, R.P.No.568 of 2021 in W.A.No.151 of 2019 & R.P.No.572 of 2021 in W.A.No.6 of 2019 APPENDIX OF RP 572/2021 PETITIONER ANNEXURES ANNEXURE 1 TRUE COPY OF JUDGMENT OF THE LEARNED SINGLE JUDGE DATED 26.11.2018, IN WPC NO.11281 OF 2016.

ANNEXURE IV TRUE COPY OF JUDGMENT DATED 10.5.1991 OF THE HONOURABLE SUPREME COURT REPORTED IN MUNINDRA KUMAR VS. RAJIV GOVIL (1991) 3 SCC 368.

ANNEXURE V TRUE COPY OF UGC CLARIFICATION ON FREQUENTLY ASKED QUESTIONS (FAQ) ISSUED IN SEPTEMBER 2015.

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