Kerala High Court
Ajay.D.N vs Sujith S.S on 30 June, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY,THE 21ST DAY OF FEBRUARY 2017/2ND PHALGUNA, 1938
WP(C).No. 491 of 2012 (J)
--------------------------
PETITIONER(S):
------------------------
1. AJAY.D.N.,
H.NO.CP-III/446, P.O.NAREEKAMVALLY,
MANDUR (VIA), KANNUR DISTRICT.
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
2. BINU.G.,
MELA KALAVARTHA MOOLA,
THATTINAKAM, NALANCHIRA P.O, THIRUVANANTHAPURAM.
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
3. ADARSH P.H.,
'AMBADI', TC 3/349 (3),17-ALAPPURAM LANE,
MUTTADA, THIRUVANANTHAPURAM,
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
4. LINI D.L.,
LATHA BHAVAN, NEAR ATHIKADUKAVU,
ERAVIPURAM P.O, KOLLAM.
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
5. KAVITHA.V.,
T.C 18/427(1), THETIBHAGAM, AMBEDKKAR LANE,
ARANADA P.O, THIRUVANANTHAPURAM,
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
6. SINDHU P.S.,
KRISHNALAYAM, KANNIPURAM, NEYYATTINKARA P.O.,
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
7. SARITHA J.N.,
'GOKUL', VALIYAKADA, CHIRATINKIL,
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
8. ABHILASH.S.,
SHINU MANZIL, MAHATMA NAGAR - 96, VADAKKEVILA P.O,
KOLLAM. (GRADE -II ASSISTANT, KERALA UNIVERSITY).
9. SAJUMAL T.S.,
LIDAN'S, T.K.M.C P.O, KARIKODE, KOLLAM.
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
2/-
-2-
WPC.NO.491/2012
10. RAJANIKATH.V.,
'UTHRAM', NEAR HEALTH CENTRE,
CHANNEL ROAD, VENGANOOR P.O, THIRUVANANTHAPURAM,
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
11. MEERA D.N.,
PAURNAMY, PULIMATH P.O, THIRUVANANTHAPURAM.
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
12. JAYA SUDHA R.P.,
T.C 28/266(1), 'PRANAVAM', KAITHAMUKKU,
OTTUKAL STREET, THIRUVANANTHAPURAM.
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
13. ELSY JOSEPH,
PINAKKATTU HOUSE, MELUKAVU P.O, MELUKAVU,
KANJIRAM KAVALA, KOTTAYAM.
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
14. DIVYA G.S.,
KAIYALAM HOUSE, VANCHIYOOR, THIRUVANANTHAPURAM.
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
15. INDU.V.G.,
'ARCHANA',T.C 3/1626, KESAVADASAPURAM,
PATTOM P.O, THIRUVANANTHAPURAM.
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
16. LEENA JOHN,
ARADHANA, PUTHUVAKKAL, KATTAKODE P.O, KATTALADA.
(GRADE -II ASSISTANT, KERALA UNIVERSITY).
17. RANJINI R.,
KRISHNAN VILAKOM, T.C 2/8, ULLOOR,
MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM.
(GRADE -II ASSISTANT, KERALA UNIVERSITY)
BY SRI.K.GOPALAKRISHNA KURUP,SENIOR ADVOCATE
ADVS. SMT.K.DEEPA (PAYYANUR)
SRI.S.MANU
RESPONDENT(S):
---------------------------
1. SUJITH S.S.,
THRIVENI,NELLANADU, VENJARAMOODU,
NEDUMANGAD,THIRUVANANTHAPURAM- 695 541.
2. DR.M.K.RAMANCHANDRAN NAIR,
VICE CHANCELLOR,UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM -695 034.
3/-
-3-
WP(C).NO.491/2012
3. PROF. K.A.HASHIM,
REGISTRAR, UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM-695 034.
4. DR.V.JAYAPRAKASH,
PRO-VICE CHANCELLOR,UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM-695 034.
5. ANWAR ALI AHAMMED,
ANAZ NIVAS, KIZHAKKEKKARA, MOOVATTUPUZHA,
ERNAKULAM DISTRICT -686 661.
6. NISHIMOL L.I.,
MOHANDAS,PUTHENTHOPPU P.O,
UNIVERSITY OF KERALA, THIRUVANANTHAPURAM-695 034.
7. VASAVAN.V.,
SECTION OFFICER,FC& D, UNIVERSITY OF KERALA,
THIRUVANANTHAPURAM- 695 034.
8. BINDU KUMARI.S.,
ASWATHY, T.C NO.9/1049 (2),SREEKARIYAM.P.O.,
THIRUVANANTHAPURAM -695 017.
9. ANU.S.NAIR,
ANUPAMA, KUMARAPURAM, MEDICAL COLLEGE P.O,
THIRUVANANTHAPURAM- 695 011.
10. UNIVERSITY OF KERALA,
REP.BY ITS REGISTRAR, THIRUVANANTHAPURAM- 695 034.
11. B.S.RAJEEV.,
MEMBER OF THE SYNDICATE,UNIVERSITY OF KERALA.
PIN- 695 034.
12. A.A.RASHEED,
MEMBER OF THE SYNDICATE,
UNIVERSITY OF KERALA-695 034.
13. K.A.ANDREWS,
MEMBER OF THE SYNDICATE,
UNIVERSITY OF KERALA- 695 034.
14. N.V.RUSSEL,
MEMBER OF THE SYNDICATE,
UNIVERSITY OF KERALA- 695 034.
15. KERALA LOK AYUKTA,
REP. BY IT'S REGISTRAR,
THIRUVANANTHAPURAM- 695 033.
4/-
-4-
WPC.NO.491/2012
16. STATE OF KERALA,
REP.BY THE SECRETARY,
HIGHER EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM -695 001.
17. THE SECRETARY,
HIGHER EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM -695 001.
R1 BY SRI.P.RAVINDRAN,SENIOR ADVOCATE
ADV. SRI.T.R.RAVI
R5 BY ADV. SRI.B.UNNIKRISHNA KAIMAL
R10 BY SRI.GEORGE POONTHOTTAM,SC,KERALA UTY.
SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
R15 BY ADV. SMT.RENU. D.P., SC, LOK AYUKTA
R16 & R17 BY ADDL.ADVOCATE GENERAL SRI.RENJITH THAMPAN
BY SR GOVERNMENT PLEADER SRI.SANTHOSH PETER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 07-12-2016, ALONG WITH WPC. NO. 499 OF 2012 AND
CONNECTED CASES, THE COURT ON 21-02-2017 DELIVERED
THE FOLLOWING:
sts
WP(C).NO.491/2012
APPENDIX
PETITIONER(S) EXHIBITS
EXT.P1 TRUE COPY OF THE COMMON JUDGMENT DATED 30-06-2009 IN
WPC NO.35426/2008 AND CONNECTED CASES.
EXT.P2 TRUE COPY OF THE REPORT DATED 10-12-2010 BY THE COMMITTEE
EXT.P3 TRUE COPY OF THE AMENDED COMPLAINT INCLUDING THE
ADDITIONAL RESPONDENTS IN COMPLAINT NO.572/2008 OF THE LOK
AYUKTA
EXT.P4 TRUE COPY OF THE REPORT MADE BY THE 15TH RESPONDENT
DATED 29-12-2011
EXT.P5 TRUE COPY OF THE DOCUMENT MARKED AS EXT.X5 BEFORE THE
15TH RESPONDENT.
EXT.P5(A) TRUE COPY OF THE DOCUMENT MARKED AS EXT.X5(A) BEFORE THE
15TH RESPONDENT.
EXT.P5(B) TRUE COPY OF THE DOCUMENT MARKED AS EXT.X5(B) BEFORE THE
15TH RESPONDENT
EXT.P6 TRUE COPY OF THE DEPOSITION OF RW-19
EXT.P7 TRUE COPY OF THE DEPOSITION OF RW 20
EXT.P8 TRUE COPY OF THE REPORT RELIED ON BY THE HIGH POWER
COMMITTEE AS ANNEXURE 13
EXT.P8(A) TRUE COPY OF THE REPORT RELIED ON BY THE HIGH POWER
COMMITTEE AS ANNEXURE 14
RESPONDENTS' EXHIBITS:
EXT.R1(A) TRUE COPY OF THE RANK LIST OF ASSISTANTS RANK POSITION
BEFORE AND AFTER INTERVIEW AND DETAILS OF MARKS SCORED.
EXT.R10(A) TRUE COPY OF THE MINUTES OF THE SYNDICATE MEETING HELD ON
19/11/2016 IN WHICH THE RESOLUTION WAS PASSED.
EXT.R10(B) TRUE COPY OF THE STATEMENT OF OBJECTIONS DATED 13/10/2011
SUBMITTED BY THE UNIVERSITY BEFORE THE UPA LOK AYUKTA.
2/-
-2-
WP(C).NO.491/2012
EXT.R10(C) TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE UNIVERSITY
ON 21/5/2008
EXT.R10(D) TRUE COPY OF THE ADDITIONAL COUNTER AFFIDAVIT FILED ON
28/5/2009
EXT.R10(E) TRUE COPY OF THE COUNTER AFFIDAVIT DATED 8/7/2008 FILED BY
THE UNIVERSITY BEFORE THE UPA LOK AYUKTA
EXT.R10(F) TRUE COPY OF THE ADDITIONAL COMMENTS DATED 4/8/2008 FILED
BY THE UNIVERSITY AGAINST THE AMENDED COMPLAINT
EXT.R10(G) TRUE COPY OF THE WRIT PETITION NUMBERED AS WPC.NO.35279 OF
2008.
EXT.R10(H) TRUE COPY OF THE STATEMENT OF OBJECTIONS DATED 23/7/2011
FILED BY THE UNIVERSITY BEFORE THE UPA LOK AYUKTA
EXT.R10(I) TRUE COPY OF THE ADDITIONAL COMMENTS DATED 3/8/2011 FILED
BY THE UNIVERSITY.
/TRUE COPY/
P.S.TO JUDGE
sts
P.V.ASHA, J.
-----------------------------------------------------
W.P(C) Nos.37082/2007-M, 11937/2011-N,
491 of 2012-J, 499/2012-J, 519/2012-L, 594/2012-Y,
619/2012-B, 681/2012-I, 748/2012-P, 753/2012-T,
836/2012-D, 918/2012-L, 986/2012-W, 987/2012-W,
1114/2012-L, 1217/2012-B, 1961/2012-U, 2074/2012-H,
2247/2012-E, 2426/2012-C, 2447/2012-E, 2554/2012-T,
2670/2012-G, 3878/2012-H, 4064/2012-G, 9362/2012-U,
11352/2013-T, 10644/2015-E, & W.P(c).No.23311of 2016-L
----------------------------------------------------------------------
Dated this the 21st day of February, 2017
JUDGMENT
All these writ petitions relate to the selection and appointment to the post of Assistants in the Kerala University and the recommendations of the Upa Lok Ayukta to cancel that selection and to initiate criminal proceedings against the Vice Chancellor, Pro-Vice Chancellor and members of Syndicate. Majority of the writ petitions are filed by the candidates who are working in the University appointed on the basis of the selection in question. Some of the writ petitions are those filed by the Vice Chancellor, the Pro-Vice Chancellor and members of syndicate separately. W.P.(C).No.37082/2007 is one challenging the selection, filed by a candidate immediately after the interview; whereas W.P.(C) No.11937/2011 is one filed years after the selection, seeking implementation of Upa Lok Ayukta's W.P(c).No.491/12 & conn.cases 2 recommendations. W.P.(C).No.10644/2015 is filed by the candidates who are already appointed, seeking promotion. W.P(c).No.23311/2016 is filed seeking appointment from the ranked list.
2. The facts in brief are that: The University of Kerala had by notification dated 3.3.2005 invited applications for selection and appointment to the post of Assistant Gr.II as and when vacancies arise, subject to approval of Government. 43358 candidates submitted their applications. 100 marks were allocated for the written test, out of which 5 marks were alloted to handwriting test. A written test was conducted on 3.7.2005. Handwriting test was conducted from 25.08.2005 to 28.08.2005. The tenure of the nominated body, which was exercising the powers of the syndicate and decided to conduct the selection, expired on 13.01.2006. The elected body of Syndicate, which took charge on 24.8.2006, constituted a selection board. In the meeting held on 5.6.2007, the selection board decided to scale down the marks to a total of 100 i.e 75 marks for written test and 25 marks for interview. Reckoning the number of vacancies as 378 as on 30.06.2007, the selection board decided to shortlist candidates equal to 5 times the number of vacancies to be called W.P(c).No.491/12 & conn.cases 3 for interview and hence to call 2000 candidates for interview. A shortlist of 2114 candidates were published on 09.10.2007 on the basis of the marks secured in the written test. Interview was conducted from 12.11.2007 to 29.02.2008. The final rank list was published on 08.04.2008 containing 1401 candidates on the basis of merit. On 29.4.2008 syndicate resolved to appoint 200 candidates. Appointment orders were issued on 20.05.2008, and 170 candidates (117 under open merit and others on reservation) joined duty between 22.05.2008 and 3.7.2008.
3. One Anu S.Nair filed W.P.(C).No.37082/2007 immediately after she appeared for the interview, challenging the selection, mainly on the ground of the scaling down of marks in the written test and complaining the conduct of the interview. After appointment orders were issued, one Mr. Sujit, a former member of the senate filed complaint No.572/2008 before the Lok Ayukta alleging manipulation of marks and irregularities in the selection in order to pick and choose candidates on political considerations and association with top officials of the university. Upa Lok Ayukta passed an order to seize the OMR answer scripts. Eventhough University undertook to produce the answer scripts, they submitted that the answer scripts did not reach the W.P(c).No.491/12 & conn.cases 4 University after evaluation by the outside agency, Secure Prints Ltd., at Hyderabad. On 30.09.2008, the Upa Lok Ayukta submitted a report recommending initiation of proceedings against the Vice Chancellor, Pro Vice Chancellor and the 4 members of the syndicate simultaneously recommending cancellation of rank list and appointments made on the basis of it. Challenging the report and recommendations of the Upa Lok Ayukta the University, the members of the syndicate, the Vice Chancellor, Pro Vice Chancellor as well as candidates filed writ petitions. After hearing all those writ petitions, this court as per the judgment in Dr. M.K. Ramachandran Nair & others Vs State of Kerala & others : 2009(3) KHC 919 (hereinafter referred to as Ext.P1 judgment), directed to constitute a committee headed by Sri N.Sukumaran, Retd. District Judge. The committee submitted a report on 10.12.2010, which found malpractices in the selection. The complainant amended the complaint and impleaded the appointed candidates and members of selection board. The Upa Lok Ayukta examined the matter again and by its report dated 29.12.2011, again recommended legal proceedings against the Vice Chancellor, Pro-Vice Chancellor and members of selection board (Respondents 1, 3, W.P(c).No.491/12 & conn.cases 5 and 10 to 13) and cancellation of selection, directing fresh selection. The report of the Upa Lok Ayukta is under challenge in these writ petitions except in W.P(c).No.37082 of 2007 and 2 other cases filed in 2011 and 2015 by candidates aggrieved by the denial of promotion and awaiting for appointment.
4. I heard M/s. Gopalakrishna Kurup, N.N.Sugunapalan, S.P.Aravindakshan Pillay, Jaju Babu, T.A.Shaji, Bechu Kurian Thomas, K.Ramkumar, the learned Senior Counsel, M/s N. Reghuraj, Kaleeswaram Raj, Pirappancode V.S.Sudhir, R.T.Pradeep, T.B.Hood, Dr.K.P.Pradeep, Saji Varghese, M.Pathrose Mathai, M.Gopikrishnan Nambiar, S.V.Rajan, V.Madhusoodanan, John Joseph Vettikkad, Sreekanth S.Nair, Nagaraj Narayanan, Sajeevan Kurukuttiyullathil, Elvin Peter, Anil K.Nair and Manuel Kachiramattam, learned counsel appearing for the petitioners/party respondents in various cases, Sri. T. R. Ravi appearing for the complainant before the Upa Lok Ayukta/respondent in almost all the cases, Sri. Anand, the learned Counsel appearing for the petitioner in W.P.(C) No.37082 of 2007, Sri. Thomas Abraham, the learned Standing Counsel for the University and Smt. D.P. Renu, the learned Standing Counsel for the Lok Ayukta. Sri. W.P(c).No.491/12 & conn.cases 6 Gopalakrishna Kurup, the learned Senior Counsel appearing for the petitioner in W.P(c).No.491 of 2012, who led the arguments, explained the case of the petitioners leading to the impugned report of the Upa Lok Ayukta.
5. As per the University Act and Statutes, appointments of teaching and non teaching staff are to be made by the Syndicate. On 06.01.2005, the Governor of Kerala promulgated Ordinance No.2 of 2005, namely the University Laws (Amendment) Ordinance, 2005. (This was later enacted as University Laws amendment Act published in gazette extraordinary dated 09.03.2005). By this amendment, clause 20 of Section 2 was omitted. A special provision was inserted as per clause 8 (Section 7 in the Amendment Act) which reads as follows:
"8. Special provision for alternate arrangements temporarily of the Senate and Syndicates of the Kerala and Calicut Universities:-- (1) Notwithstanding anything contained in the Kerala University Act, 1974 (17 of 1974) or in the Calicut University Act, 1975 (5 of 1975) or in any Statute, regulation, ordinance or rules made thereunder or in any judgment, decree of order of the Court, in the case of the Syndicates of the Kerala and Calicut Universities, the term of office which expires on the date of commencement of this ordinance the functions of the Senate and Syndicate of the said Universities shall be exercised by a body nominated by the Government under sub-section (2) for a period of six months or till the reconstitution of the Senate and Syndicate in accordance with the provisions of the Kerala University Act, 1974 (17 of 1974) and the Calicut University Act, 1975 (5 of 1975) whichever is earlier."
Accordingly the functions of the senate and syndicate of the W.P(c).No.491/12 & conn.cases 7 Universities of Kerala and Calicut were to be exercised by a body nominated by the Government under sub section (2) for a period of six months or till the reconstitution of the senate and syndicate in accordance with the provisions of the Kerala University Act, 1974 and Calicut University Act, 1975, where the term of office of the syndicate of Kerala and Calicut Universities expires on the date of commencement of the ordinance. Sub section 2 provided for the constitution of the nominated body by notification in the gazette to exercise all the powers and functions of senate and syndicate, according to which, there shall be 6 nominated members and ex-officio members of the syndicate as provided therein. Consequent to this amendment, the University of Kerala nominated an interim body in terms of Section 8(2) of the University Laws Amendment Ordinance, 2005, to exercise all the powers and functions of the senate and syndicate of the University of Kerala, which consists of: the Vice Chancellor, Pro Vice-Chancellor, Secretary to Government, Higher Education Department or an officer nominated by him not below the rank of a Joint Secretary, Director of Education, Director of Collegiate Education and the Secretary to Government, Information and Technology Department or an W.P(c).No.491/12 & conn.cases 8 officer of that department not below the rank of Joint Secretary nominated by him. Along with that 6 persons nominated, one representative of legislature assembly, a Government College teacher belonging to Scheduled Caste community, a member of an Aided College, a teacher representative of affiliated aided colleges, a teacher representative of University and Chairman of Kerala University Wing are also included.
6. The newly constituted nominated body convened its meeting on 2.2.2005. Item No.14 in the agenda was in respect of recruitment of Assistant Gr.II. The syndicate considered the question of issuance of notification inviting applications for appointment of Assistant Gr.II incorporating the proposed qualification in computer knowledge. It was resolved to issue notification inviting applications for appointment of Assistant Gr.II with the existing qualification subject to the condition that appointments shall be made only on getting clearance from the Government. Consequent to that decision, a meeting of officers was held with Deputy Registrar (Administration III), Assistant Registrar and staff of the section to discuss the matters relating to the procedure for selection of Assistant Gr.II on 15.2.2005, in presence of Pro Vice Chancellor and Registrar. In that meeting W.P(c).No.491/12 & conn.cases 9 it was recommended to issue notification inviting application at an early date and also to modify the application form which was issued in 1992. In the meeting of the Syndicate held on 23.02.2005, the matter again came up for consideration as item No.79 and considered the recommendations of the officers in their meeting held on 15.2.2005 and it was decided to conduct the written test in the first week of June, 2005. Thereafter, notification inviting applications were issued on 3.3.2005 from among candidates with University degree and good handwriting, fixing the last date for accepting applications as 6.4.2005. It was provided that the candidates have to appear for the written test and subsequently an interview. While so, the six months' tenure of the nominated body came to an end and thereupon an amendment was introduced for its extension by another six months or till the reconstitution of the senate and syndicate whichever is earlier. Accordingly the tenure of the nominated body was extended for another six months by promulgating Ordinance No.11/2005 - the University Laws Amendment Ordinance, 2005 on 18.6.2005. Later, on expiry of the said six months period on 11.1.2006, the Vice Chancellor of Kerala University was empowered to exercise all the powers and W.P(c).No.491/12 & conn.cases 10 perform all the functions of the senate and syndicate, as per G.O (Ms).No.6/2006/H.Edn. dated 5.1.2006. Therefore, from 22.3.2005 to 12.01.2006, the nominated body was exercising the powers of senate and from 13.01.2006 onwards the Vice Chancellor was exercising the powers of senate and syndicate.
7. In the meanwhile, 43358 applications were received in response to the notification. M/s.Secure Prints Private Ltd., Hyderabad, on the basis of an existing arrangement in respect of the examinations of the University, dispatched printed examination materials in the name of Dr.Jayaprakash-the Pro- Vice Chancellor in his residential address by Air Cargo in 123 bundles weighing 2832 kg and furnished the bills for freight and cargo charges.
8. The written test was conducted on 3.7.2005 in the OMR format. In the instructions to the candidates in the hall tickets it was specified that 95 marks would be for objective type test and 5 marks for handwriting. Tests were held at various centers in the State of Kerala. 37656 candidates appeared for the written test. It is pointed out that the answered OMR sheets were kept in safe custody of the then Controller of examinations, after collecting the same from various centers. Evaluation of W.P(c).No.491/12 & conn.cases 11 handwriting test was conducted during the period from 25.08.2005 to 28.08.2005. The answered OMR sheets were dispatched to the evaluation agency-Secure Print Ltd. at Hyderabad, by the Registrar, separating the part containing personal details of candidates from the answer part, separating through the middle of the bar code, so that the personal details will be on one side and the answer would be on the other side so that identity of candidates cannot be revealed by such separation from the answer sheet. It is pointed out that the Secure Print Private Ltd. was paid a sum of Rs.5 lakhs on 04.07.2005 and the final payment was made on 13.02.2006. The senate was thereafter reconstituted on 27.3.2006 and new syndicate was elected on 24.08.2006. The matter regarding the selection came up before the senate on 24.03.2007. On 26.05.2007, the syndicate resolved to prepare a shortlist from among candidates who appeared for the written test and to prepare a select list for appointment to the post of Assistants. It was also decided to constitute a selection committee in accordance with the Kerala University First Statutes, 1977. Accordingly, the Vice Chancellor constituted a selection Board in accordance with the First Statutes 1977, on 1.06.2007 consisting of the convenor of W.P(c).No.491/12 & conn.cases 12 standing committee of the syndicate of finance, convenor of standing committee of the syndicate of staff, equipment and building who were also members of the syndicate (M/s.A.A.Rasheed and B.S.Rajeev) along with 2 other members of the syndicate - M/s.K.A.Andrews and M.P.Razack. From the note furnished by the Registrar, the selection board found that in the previous selection conducted in 1992, the marks for the written test was 150 and it was scaled down as 75 for written test and 25 for interview and it was therefore decided to follow the same procedure. The selection board thereupon decided to fix the total marks for the written test and interview as 100 allocating 75 marks for written test and 25 marks for interview. Taking note of the fact that 378 vacancies were reported as on 30.06.2007, the selection Board decided to shortlist candidates equal to 5 times the number of vacancies for interview and hence to call the first 2000 candidates based on the marks in the written test, for the interview. It is stated that the rank list of the written test was kept in the safe custody with the Registrar in sealed condition and it was opened for the first time on 18.06.2007 and thereafter it was found that 2116 candidates qualified for the ranks upto 2000, on the basis of the marks. A W.P(c).No.491/12 & conn.cases 13 list of such candidates was handed over for verification of application forms and for interview. It is pointed out that the list was again opened on 30.06.2007 in order to ascertain the details of 5 candidates since the details furnished by them lacked clarity. Thereafter, on 4.10.2007 the selection board decided to publish the shortlist of candidates, and on 6.10.2007 the selection board found that 2114 candidates were eligible to be included in the shortlist and to publish the same in the website of the University and in the main office notice board. Accordingly, the shortlist was published on 09.10.2007. Interview was held from 12.11.2007 to 29.02.2008. Thereafter, on 19.03.2008, the selection board decided to open the sealed cover containing the rank list of the candidates in the written test and interview for preparation of final rank list. The final rank list was published on 07.04.2008 containing 1401 candidates on the basis of merit. Accordingly, a provisional rank list was published on 08.04.2008. On 20.05.2008, appointment orders were issued to 117 candidates. The appointed candidates joined duty between 22.05.2008 and 3.7.2008.
9. It is stated that on 08.05.2008, the Pro Vice Chancellor made a correction in the note stating that OMR W.P(c).No.491/12 & conn.cases 14 sheets and answer key are with the evaluator and the same has to be obtained back. The administrative wing had also put up a note which was signed by the Registrar in respect of the evaluated OMR sheets, papers of handwriting tests, answer key etc.
10. In the meanwhile, one Sujith.S.S, a former member of Senate, filed complaint No.572 of 2008 before the Upa Lok Ayukta alleging malpractices for including persons of choice with lower marks in the written test in the top of the rank list. On 2.6.2008 the Upa Lok Ayukta passed an interim order directing to seize all the answer papers and produce the same before the Registrar. When the matter came up before the Upa Lok Ayukta on 5.6.2008, the University of Kerala undertook to produce the original answer scripts before the Upa Lok Ayukta and prayed for not executing the order till 09.06.2008. The Upa Lok Ayukta thereupon directed the petitioners to file a report. On 13.06.2008, the University appeared before the Upa Lok Ayukta and produced the report of the Registrar submitted on 12.6.2008, after conducting a personal enquiry with the evaluation agency. The University expressed its helplessness to produce the answer sheets as undertaken. It was pointed out W.P(c).No.491/12 & conn.cases 15 that according to the evaluation agency, answer sheets were sent to the University. According to the University, there were no records to show dispatch or receipt of the answer sheets. The Registrar of the University submitted the report on 12.06.2008, after making personal enquiry with the Manager Personnel of the printing press at Hyderabad on 07.06.2008, when the manager who was in charge of the Printing and scanning of the answer papers stated before the Chairman that he had dispatched the OMR answer scripts on 09.11.2005 in the name of Doctor Jayaprakash, Pro Vice Chancellor. When the matter was pending before the Upa Lok Ayukta, the syndicate in its meeting on 26.06.2008 decided to constitute a fact finding committee to enquire into the missing of OMR sheets as per its order dated 26.06.2008. As per the report submitted, the press agency at Hyderabad had not delivered the valued OMR sheets to the University and there are no records kept in that behalf. On 2.8.2008, the report of the fact finding committee was approved unanimously.
11. In the meanwhile the original complaint filed was sought to be amended on 18.07.2008 filing I.A.No.417 of 2008, and it was allowed by the Upa Lok Ayukta. The Upa Lok Ayukta W.P(c).No.491/12 & conn.cases 16 issued notice to the Managing Director of Secure Print Pvt. Ltd. as per its order dated 07.08.2008 and the Secure Prints produced the hard disc containing the software database, OMR sheets scanned data, answer key, result data, soft copy (CD) consisting of result data, printouts of evaluation procedure, printouts of answers recognised from OMR forms, hard copy of the answer copy, hard copy processed results with rank and by order dated 19.08.2008 the Upa Lok Ayukta ordered that those materials should be kept in safe custody with the Registrar. I.A.504 of 2008 filed by the respondents in the complaint, seeking scientific examination of the electronic records produced by the agency, was dismissed by the Upa Lok Ayukta as per order dated 25.08.2008.
12. The complaint was originally filed with 2 respondents on the party array, i.e the Registrar as well as the Vice Chancellor of the University . The 3rd respondent Dr.Jayaprakash was suo motu impleaded by the Upa Lok Ayukta. On the basis of the application submitted by the complainant, respondents 4 and 5 were impleaded in a representative capacity. The 8th respondent is the petitioner in W.P(c).No.37082 of 2007. University of Kerala was impleaded as the 9th respondent. W.P(c).No.491/12 & conn.cases 17 However, later the University was removed from the party array. Respondents 10 to 13 were members of the syndicate who were the members of the selection board also. The University was again impleaded as 14th respondent in the subsequent proceedings. The orders allowing impleadment of parties in a representative capacity and amendment of the complaint seeking additional prayers for a declaration that the additional respondents were not entitled to hold their posts, were challenged in W.P(c).No.22835 of 2008. As per interim order dated 4.9.2008, this Court stayed the orders passed by the Upa Lok Ayukta, allowing continuance of the proceedings before the Upa Lok Ayukta. That writ petition was disposed of by this court by the judgment dated 19.11.2008 in Nithin v. University of Kerala : 2008(4) KLT 839. However, while the Writ Petition was pending, the Upa Lok Ayukta disposed of the complaint on 30.09.2008. Recommendations were made to take action against respondents 1 and 3 and 10 to 13 since they were guilty of favouritism, nepotism and political patronage in the selection conducted, to cancel the select list, and to conduct a fresh selection, as contained in paragraph 85 of the report .
13. Before the Upa Lok Ayukta, objections were raised as W.P(c).No.491/12 & conn.cases 18 to maintainability on the ground that the University or the members of the syndicate are not public servants coming under the purview of the Lok Ayukta Act. Objections were also raised on the ground of bar under Section 8 read with clause (d) of the second schedule to the Act alleging that matters relating to selection and appointment cannot be entertained by the Lok Ayukta. Upa Lok Ayukta found that respondents 10 to 13 were public servants coming under the purview of section 2(o)(vii) (F) of the Act. It had also found that there is no prohibition for investigating allegations relating to selection and appointment. Since the University failed to produce the OMR answer scripts, after undertaking to produce it initially, the Upa Lok Ayukta drew adverse inference and recommended to take action against them. The application for conducting a forensic examination of the C.Ds, was rejected under the guise of Section 114 of the Evidence Act. The Upa Lok Ayukta found that the selection was vitiated by favouritism and nepotism and corrupt practices and the select list should be set aside.
14. The report of the Upa Lok Ayukta was under
challenge in various writ petitions filed by several of the candidates, University, the Vice Chancellor and members of W.P(c).No.491/12 & conn.cases 19 syndicate etc. Various objections were raised as to the jurisdiction of the Upa Lok Ayukta in matters relating to selection and appointment, without hearing the parties, against persons who are not public servants, etc. All those writ petitions were disposed of by Ext.P1. This Court set aside the order of the Upa Lok Ayukta to a certain extent and directed Government to constitute a high power committee to conduct an investigation into the missing of OMR sheets and into procedure adopted in the process of selection. In paragraph 36 of the judgment, the conclusions were summarised as follows:
"36. The fairly elaborate discussion, which I have undertaken above, leads me to certain conclusions which I think, it is appropriate to summarize as hereunder:
(i) The Upa Lok Ayukta has jurisdiction to entertain, investigate and proceed with the complaint NO.572/08 filed by the complainant (2nd respondent in W.P.) No.32034/08) and file a report in terms of Section 12 (3) of the Act.
(ii) The persons, who have been selected are eligible to be impleaded in the proceedings before the Upa Lok Ayukta eo-nominee and in doing so, the complainant would be entitled to bring it to the notice of the Upa Lok Ayukta the fact that all of them have been arrayed as respondents in W.P.)No.37082/07 and represented by counsel before this court.
(iii) It will be open to the Upa Lok Ayukta,considering the number of persons, who are to be served, to see that notice on them is served through the University Registry.
(iv) The issue regarding the non-availability and non-production of OMR sheets relating to the selection in question would be liable to be considered by the Upa Lok Ayukta and the Upa Lok Ayukta would be entitled to summon and compel the attendance of any person, including any person, who has not been hitherto made a party, to trace the missing/non-
produced OMR sheets or issue such other directions, as are necessary." W.P(c).No.491/12 & conn.cases 20 It was found that the matter required reconsideration by the Upa Lok Ayukta, since the Upa Lok Ayukta declared respondents 1, 3 and respondents 10 to 13 before it, as having indulged in nepotism, favouritism and political patronage in the absence of any specific allegations qua such persons in the pleadings and without giving them sufficient opportunity to defend their actions individually or as members of the selection committee, observing that the vitiating factors as regards the selection would be different in the case of a written examination and interview by a selection committee. In paragraph 38, this court found a follows:
"A perusal of the proceedings before the Upa Lok Ayukta would show that the soft copy regarding the evaluation conducted by the outside agency was actually produced before the Upa Lok Ayukta. But it was not opened and considered essentially because the Upa Lok Ayukta felt that it is secondary evidence, within the meaning of Section 65(b) of the Evidence Act. I am of the view that the question as to whether the evaluation has, in any manner, been influenced or tinkered with or has been otherwise vitiated, is a matter that has to be specifically considered by the Upa Lok Ayukta, and it would only be appropriate that an expert body first considers these materials and places its opinion before the Upa Lok Ayukta. Further definite information could possibly be given by an expert in this regard, if OMR sheets are made available. The non-production of the OMR sheets, as I have repeatedly stated above, is therefore, a matter which should definitely engage the serious attention of the Upa Lok Ayukta and with respect, it has been very seriously frowned upon by the Upa Lok Ayukta even in the impugned order. But, in the light of the view which I have taken as regards the absence of specific allegations qua respondents 1 and 3 and respondents 10 to 13 (and absence of the selectees on the party array), the matter requires reconsideration by the Upa Lok Ayukta. It also follows that in doing so, the Upa Lok Ayukta would be entitled, legitimately, to consider the absence of such OMR sheets or the failure on the part of the University to produce the same as a matter of serious concern. I do not propose to dilate on this aspect because according to me, a high powered body should first conduct an enquiry or investigation arising from the missing of OMR W.P(c).No.491/12 & conn.cases 21 sheet relating to the selection in question and a report of such body should be made available to the Upa Lok Ayukta, which obviously would be entitled to proceed further. I also remind myself of the fact that WP(C) No.37082/07 has been instituted by one of the candidates, who participated in the selection. This Court would be called upon to consider the contentions raised therein at a later point of time. The materials which, will come to light, pursuant to the investigation which I propose to order, would be helpful to this Court at the time of disposal of WP(c) No.37082/07."
Thereafter the following directions were issued in paragraphs 39 to 41.
"39. The following directions are issued:
(1) The order dated 30.9.2008 of the Upa Lok Ayukta in Complaint No.572/08 shall stand set aside, for the reasons mentioned above and to the limited extent mentioned above.
(2) The Government shall, within one month from the date of receipt of a copy of this judgment, constitute a High Power Committee consisting of the following four members to conduct an enquiry and investigation into those aspects, which would be highlighted in the following paragraphs.
(3) The said Committee shall be headed by Mr.N.Sukumaran, Former District and Sessions Judge. The team shall include a serving Inspector General of Police. It shall also comprise an expert in the field of Software and Computers. The software expert may be chosen by the Chairman. The 4th member of the team shall be a Government servant, holding a rank not lower than the Principal Secretary of one of the Departments of Government, viz., Higher Education Department, General Education Department or the Home Department, as the case may be.
(4) The team, as directed above, shall require an investigation to be conducted into the following aspects, among others.
(a) Whether OMR sheets relating to the written examination conducted as part of the selection to the post of Assistant Grade II held on 3.7.2005 were delivered to the Kerala University and if so delivered, when it was so done.
(b) If they have been so delivered at the University, the whereabouts of the same and the reasons for the non-production of the same before the Upa Lok Ayukta by the University officials, in spite of the same being summoned.
(c) If the OMR sheets are missing, then the persons, who are responsible for not having taken adequate precaution or who were responsible or who are otherwise guilty for the missing of such OMR W.P(c).No.491/12 & conn.cases 22 sheets.
(d) To cause a verification to be done as regards the evaluation undertaken and completed by the outside agency M/s.Secure Printers, Hyderabad; Obviously, the investigation team will be entitled to summon the representatives of the evaluation agency and see that a verification is done effectively.
(e) The details regarding the decision taken by the University for preparing a short list of 2114 candidates.
(f) Reasons for the delay in the conduct of interview, in spite of the completion of the written examination in 2005.
(g) Details regarding the assessment of hand writing, done by the outside agency, who had evaluated the hand writing of the candidates.
(h) The details of the decision taken by the University as regards the constitution of the selection committee, who had conducted interview of the candidates.
(i) The procedure adopted by the members of the selection committee in awarding marks to the individual candidates, who had participated in the interview.
(j) A thorough investigation into the allegations that persons who had an official say in the affairs of the University had influenced the aggregation of the marks secured by the candidates, who had appeared in the interview and that this was with an intention to pull up the candidates who had not fared well in the written examination, within the zone of consideration.
(k) Whether the interview conducted by the selection committee was otherwise regular, disciplined and proper.
(l) To verify the correctness of the answer key which was published by the University, after the conclusion of the selection and in doing so, the delay in publishing the answer key in spite of the fact that the written examination was conducted in September, 2005 shall be probed into.
40. The committee constituted as per the direction mentioned above in paragraph 3 above, will oversee the investigation to be conducted by such persons in the police force as are deemed appropriate by the committee. It is made clear that the committee would be entitled to approach this court seeking a clarification on any one of the aspects mentioned or any other aspects which may arise in the course of the investigation by making an appropriate motion in W.P. )No.37082/07, which will continue to remain on the files of this court.
41. On conclusion of the investigation, the report shall be compiled by the High Power Committee constituted as directed above and the same shall be produced before this court in W.P.)No.37082/07 and shall also be produced before Upa Lok Ayukta in Complaint No.575/08." W.P(c).No.491/12 & conn.cases 23
15. Thereafter, the Government issued Order dated 31.10.2009, constituting the High Power Committee to conduct an enquiry and investigation into the aspects highlighted in Ext.P1 judgment, with Sri N.Sukumaran, Former District and Sessions Judge, as head of the committee, Sri Kuruvila John, the Member Secretary to Government, Higher Education Department, Sri K.Padmakumar, I.P.S Inspector General of Police (Intelligence) and Sri Vishnu Ram V. The High Power Committee submitted its report dated 10.12.2010. The copies of the report were submitted before this Court as well as the Upa Lok Ayukta. The findings of the committee are given in paragraph XXV of the report. The committee, after examining 44 witnesses including the Vice Chancellor for the period from 19.08.2004 to 18.08.2008 as witness No.6, Dr.Kevin, who was the Pro Vice Chancellor from 15.03.2001 to 15.03.2005 as witness No.9 and Dr.Jayaprakash who was the Pro Vice Chancellor for the period from 1.5.2005 onwards as witness No.15, the Joint Registrar Sri Mohandas, who was in charge of the Registrar from 1.09.2004 to 6.09.2005 and about hundred documents found that the original question papers and OMR sheets utilised for the examinations were transmitted in the W.P(c).No.491/12 & conn.cases 24 cargo. No document could be found out from which it could be said that the valued OMR sheets were retransmitted by the printer to the University in any particular manner. It was observed that the final bill to the printer was stated to be passed by Smt.Krishnambal, witness No.3, on the basis of oral direction from witness No.15 Dr.Jayaprakash, the Pro Vice Chancellor. Referring to the evidence adduced by examining Sri Phanikrishna, who was Production Manager of Secure Print Ltd. during 2005 as witness No.20 as also the Chairman and CEO of the company, Srinivasa Rao as witness No.7 and the reply given by them as D69(a) it was observed that as per D69(a) the OMR sheets were returned to Dr.Jayaprakash in November, 2005 and D69(b) was a dispatch note signed by witness No.20 Sri Phanikrishnan. The OMR sheets were dispatched to Dr.Jayaprakash on 09.11.2005. Further it was stated in that D69
(a) that printer has no other document evidencing the returning of the valued OMR sheets and the details of mode of transport of the articles were not available.
16. In the letter sent by the Secure Print Ltd. to the Vice Chancellor in reply to his letter dated 6.6.2008, it was stated that Sri R.Phanikrishnan had dispatched all the documents including W.P(c).No.491/12 & conn.cases 25 OMR answer sheets in November, 2005 itself and the final settlement of cash was made in the name of Dr. V.Jayaprakash. Before the committee, the Accounts Manager of the Secure Print Ltd. who was summoned as witness No.12 produced documents 85 and 86. It is stated that he was not able to give the details in D85 and claimed that D86 were ledger accounts relating to transportation charges. It was observed that no connection could be found to the entries therein regarding the consignment alleged to have been dispatched on 09.11.2005 to Dr.Jayaprakash. Even though further accounts of the Secure Prints were furnished as D91 and 91(a), Commission could not find from these accounts anything to identify the freight charges for transportation of the OMR sheets. In paragraph XXVI(iv), of the report, the Committee observed:
"The clear picture of the fate of OMR sheets after they were valued is not emerging in spite of our best efforts to trace its track. One thing is certain that is that they have either been destroyed or suppressed. At what stage and from where it disappeared is the question to be decided. There is no direct evidence on this aspect. When that is so, reasonable inferences from the circumstances alone is the course available".
17. However, the committee further found that since this Court in Ext.P1 judgment confirmed that valued OMR sheets have been returned to the University, the Commission is bound W.P(c).No.491/12 & conn.cases 26 by that finding and therefore, the only reasonable inference that can be made was that Dr.Jayaprakash has received the OMR sheets returned by Secure Prints Ltd., even though the committee had already found that there was no direct evidence as to how or when the OMR sheets were dispatched or received. However the Upa Lok Ayukta did not approve this finding of the Committee
18. The committee further found that after the evaluation of OMR answer sheets, M/s.Secure Prints, Hyderabad, ,had given the result in C.D1. The expert member of the Sukumaran Committee had analysed these CDs and compared the CDs procured from the University as well as the evaluation agency, Disc Image analysis was undertaken to ascertain whether any tampering was done. The expert member could not find any tampering with the CDS and CDs compared were found identical.
19. In para xxviii (iv), which is also with respect to the OMR sheets and allegations as to the manipulations, the committee found that the correctness of the allegation that OMR sheets were suppressed/ destroyed in order to escape the detection of manipulations, could have been determined on W.P(c).No.491/12 & conn.cases 27 comparison of the OMR sheets only and in its absence it was not possible to say that the C.D and the mark list available represent a real value of answers given by the candidate. It was observed:
"It is true that there is no direct evidence of any tampering with the real marks earned by the candidates. So we cannot say with precision whether manipulation in marks were done at Secure Print Ltd. But we are sure that there were possibilities for such manipulation since the identity part of the OMR sheet was also sent to the press and the expected secrecy was not maintained. Our answer to the question is that the mark sheets and CDs available cannot safely be accepted to assess the merits of the candidates who sat for the written test as the OMR sheets are not available".
20. At the same time, the computer expert who was a member of the committee had furnished Ext.P13 report and referring to that report, the committee observed that he had also verified the computer used for the tabulation work at the University in connection with the selection and made CD Nos.10 and 11 and filed 4 reports on the inspection, which provide for a comparative study of the marks and ranks at the written test and final rank list.
21. Regarding the handwriting evaluation, the committee furnished its findings in paragraph XXIX. It was found that the handwriting was evaluated internally in the University in centralised valuation. The valuers employed were 7 Ph.D holders. In sub paragraph v, the committee stated that a questionnaire was issued to 3 of the examiners who alone could W.P(c).No.491/12 & conn.cases 28 be traced out. The committee, on scrutiny of the answer papers for which zero marks were awarded for handwriting observed that at least a few of them deserve marks above zero. From the reply submitted by them, the committee found that no norms were set for awarding of marks and there was no satisfactory explanation for award of `zero' marks to those who had answered the question. However, it is seen that in the answer given by one of the evaluators, he refers to the handwriting evaluation done in the year 1985. The further question considered in paragraph XXX was regarding the constitution of the selection committee which conducted interview. It was found that the decision to constitute selection committee was taken in the meeting held on 26.5.2007 and the selection board was constituted by the Vice Chancellor on 1.6.2007. Regarding the preparation of shortlist containing 2114 candidates, the committee discussed the same in paragraph XXXI. It noted that in the previous selection conducted in 1992, 150 marks for written test, was reduced to 75 after the written test was over and 25% was fixed for interview. The selection board in its meeting held on 5.6.2007 decided to reduce the marks from 100 to 75 for written test and fixed the marks for interview as 25 and W.P(c).No.491/12 & conn.cases 29 took decisions regarding the interview. The committee referred to the meeting held till 6.10.2007 when the shortlist of 2114 candidate was finalised. In respect of the sub clause (f) i.e regarding delay in conduct of the interview when the written test was over in 2005, the committee found that the reasons for the delay was inevitable. On expiry of the term of the nominated syndicate on 10.01.2006, the Vice Chancellor was to exercise the powers of the syndicate. The new syndicate took charge only on 24.08.2006 and moreover there was a ban on appointments from the Government. Accordingly, the delay for the period from 2005 to 2007 was found justifiable.
22. The next issue considered was regarding the procedure adopted by the members of the selection committee for awarding marks for individual candidates. In Annexure-A7 obtained from the Registrar of the University, it was stated that selection board awarded marks at the interview taking into account the relative merits and the performance of candidates at the interview. But it was found that there were no minutes of any meeting in which the selection Board board had fixed the norms for awarding marks on the basis of relative merit and therefore in ithe absence of such norms, the assessment could W.P(c).No.491/12 & conn.cases 30 not have been done in a just or fair manner. In paragraph XXXIV the committee found that there was nothing to indicate that norms were laid down before the interview, for assessing the candidates or awarding marks in the interview. The scaling down of marks from 100 to 75 was found as an attempt to enhance the marks in interview and to reduce that in the written test. It was found that interview marks were awarded in the range of 5.4. to 23.2 and no maximum or minimum was fixed. Therefore, it was found that the marks were awarded in an arbitrary and indiscriminate manner and marks in interview was a decisive factor, as a result of the reduction in the marks for written test. Committee considered the case of candidates who were alleged to have connection with the members or top officials in the University or political higher ups; Rank No.33 was the daughter of the Vice Chancellor's wife's uncle and that he participated in her interview. Before the committee he had deposed that he did not have any association with her or members of her family. Though the allegation against her selection on that account was ruled out, the committee observed that such a criticism could have been avoided in case he kept himself away from the interview board. In the case of rank W.P(c).No.491/12 & conn.cases 31 No.16, who was the nephew of Dr.Jayaprakash, the candidate had stated that his family was not in good terms with Dr.Jayaprakash. However, the committee found that Dr.Jayaprakash was not a member of the selection board and therefore the allegation against his selection did not merit consideration. However, the committee could not find any substance in the allegation regarding inclusion of candidates in the rank list in the top position on account of the political patronage or on account of acquaintance with the top officials of the University or with the members of the selection board. It was observed that there was no positive evidence in support of the allegation and there was no reliable material to hold that political patronage or acquaintance played a role in the success of selected candidates. The summary of the findings of the High Power Committee are the following:
"XXXVI. THE SUMMARY OF OUR FINDINGS:
(1) The entire selection process is vitiated by illegalities and irregularities. The Selection Board should have been constituted as the first step early in 2005 as provided under Statute 8 of Part II of Chapter 4 of the first Statute to conduct the entire process of selection including written tests and the valuation of the answers of such tests. This mandatory stipulations has been violated. (2) The valued OMR sheets concerning the written test held on 3.7.2005 have been dispatched to the Kerala University by Secure Print Ltd on 9.11.2005. It was received by the University as found by the Honourable High Court in Annexure-A2 judgment. Our view is that Dr.Jayaprakash, the then Pro Vice Chancellor received it.W.P(c).No.491/12 & conn.cases 32
(3) The said OMR sheets are not traceable. It must have been suppressed or destroyed by Pro Vice Chancellor Dr.Jayaprakash. (4) Dr.Jayaprakash, then Pro Vice Chancellor and Dr.M.K.Ramachandran Nair, the then Vice Chancellor are responsible for the missing of the valued OMR sheets. They are guilty of the same.
(5) The available mark sheets and CDs cannot safely be accepted to assess the relative merit of the candidates who sat for the written test and answered the OMR sheets.
(6) The irrational award of marks for the Hand Writing Test has in fact adversely affected the validity of selection. (7) The delay in conducting the interview only in the year 2008 in spite of the completion of the written test in the year 2005, was for justifiable reason.
(8) The procedure adopted by the Selection Board in awarding marks to the candidates who appeared for the interview was by no standards proper.
(9) There was no arithmetical error in the aggregation of marks scored by the candidates.
(10) The interview conducted by the Selection Board was neither regular, disciplined nor proper.
(11) There was inordinate delay in publishing the answer key, which defeated its very purpose. The questions and answer key had defects and mistakes. The delay and defects have adversely affected the credibility and reliability of Annexure-A9, the Rank List. XXXVII. OUR RECOMMENDATIONS:
1) The missing OMR sheets are valuable official documents. They are either destroyed or suppressed. The real fate of the OMR sheets could not be ascertained in spite of our best efforts. A full fledged investigation after registration of a Crime Case regarding the missing of OMR sheets may yield useful results. The investigation may have to be conducted in and out of the Kerala State. Therefore it is advisable to entrust the investigation to the Crime Branch of the Kerala Police. We recommend that a Crime Case regarding the missing of the OMR sheets may be registered and investigated by the Crime Branch of the Kerala Police.
2) University is an autonomous institution. Undoubtedly it has competence in academic matters. But, it has come out that it lacks the required expertise in conducting selection of non teaching employees from among a large number of applicants in a fair, transparent and fool proof manner. It would therefore be advisable to leave such selections to the Constitutional body viz. the Kerala Public Service Commission. The Kerala University first Statute may have to be amended of such a course is to be adopted. We recommend that the selection for appointment to the non-teaching cadres of the Kerala University may be entrusted to the Kerala Public Service Commission."
23. Subsequent to the filing of the report the complaint was amended incorporating various contentions and impleading W.P(c).No.491/12 & conn.cases 33 the candidates. Several candidates were shown in separate list alleging that they got appointment/placed top in the rank list by awarding high marks in the interview on account of political considerations, association and affinity to the high profile officers of the University, etc. After conducting trial, the Upa Lok Ayukta arrived at more or less the same findings and recommended legal proceedings against respondents 1 and 3 and 10 to 13 in the complaint and cancellation of selection and for conducting fresh selection. The findings and recommendations of the Lok Ayukta are as follows:
"61. Even if the allegations regarding favouritism, nepotism and political patronage are not established the selection process is vitiated for the reason that the Selection Board was not constituted in time and that inviting applications, conducting examination and valuation of answer sheets which were expected to be done by the Selection Board were actually done by the officers of the University who had no authority to do that. Moreover, the circumstances available in this case which had already been discussed would clearly prove that the selection process was vitiated by favouritism and nepotism.
"62. This is a case in which majority of the allegations in the complaint have been substantiated and hence a report under section 12(3) of the Act has to be sent to the Competent Authority, the Secretary to Government, Higher Education Department, Government of Kerala. The following are the findings which have to be communicated to the Competent Authority.
(1) The entire selection was vitiated by illegality since Selection Board was not constituted before inviting applications and conducting written test.
(2) Inviting applications for the post of Assistant Grade-II and the conduct of written examination before the constitution of the Selection Board under Statute B Part II Chapter 4 of the Kerala University Statutes were highly irregular and illegal.
(3) The entire selection to the post of Assistant Grade - II, University of Kerala is vitiated by favouritism, nepotism, irregularities and illegalities.W.P(c).No.491/12 & conn.cases 34
(4) Manipulation was done by respondents 1, 3 and 10 to 13 in the marks in the written examination and in order to conceal evidence of manipulation R1 and R3 concealed or destroyed the OMR sheets.
(5) OMR sheets were received by the third respondent and those were concealed or destroyed by respondents 1 and 3.
(6) Proper interview was not conducted by the Selection Board with the intention of helping the candidates of their choice.
(7) R1 and R3 committed grave irregularities in
conducting the written examination.
(8) R1, R3 and 10 to 13 are guilty of nepotism and
favouritism.
63. The following recommendations are made to the Competent Authority.
(1) Initiate appropriate legal proceedings against R1, R3 and R10 to 13 as they are guilty of favouritism and nepotism in the selection of candidates for appointment to the post of Assistant Grade- II in the University.
(2) Initiate legal proceedings against respondents 1 and 3 for withholding OMR sheets by concealing or destroying them.
(3) Cancel Ext.R2(4) rank list and all appointments made on the basis of that rank list.
(4) Direct the Vice-Chancellor of the University to constitute a new Selection Board in strict compliance to Statute 8 Part II Chapter 4 of the Kerala University First Statutes which may conduct such tests for all the candidates who had already applied for selection, as are deemed necessary to determine the suitability of candidates for appointment.
This report will be sent to the Competent Authority with the relevant documents, materials and other evidence. Give intimation to the complainant about the forwarding of the report to the Competent Authority."
24. The learned Senior Counsel Sri Gopalakrishna Kurup relying on the judgment in Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417] contended that there was absolutely no circumstance for the Upa Lok Ayukta to interfere with the selection. It was pointed out that a selection cannot be set aside on the basis of suspicious circumstances or circumstantial evidence especially in the absence of any definite W.P(c).No.491/12 & conn.cases 35 finding against any of the respondents in the complaint qua any of the particular candidate. Relying on the judgment of this Court in Mary v. Kuzhur Service Co operative Bank Ltd. [2006(1) KLT 323], it was argued that the nominated syndicate had every authority to commence the process of selection, applying the doctrine of necessity. In Mary's case (supra), punishment awarded by the Administrator in continuation of the disciplinary proceedings initiated by the committee was upheld repelling the contention that it was in violation of Rule 198 of the Co-operative Rules, according to which, dismissal has to be imposed by the disciplinary sub committee.
25. It is the common case of all the appointees and the respondents in the complaint that commencement of the proceedings for selection was taken by the whole body of the nominated syndicate. There is no illegality in commencing the selection on the basis of a decision by the entire body of the syndicate on the ground that selection board was not constituted. The decision was taken not by a few persons from among the body, but by all the members which constituted the nominated body. That decision was followed by the subsequent body which came into power on election. Therefore, the finding W.P(c).No.491/12 & conn.cases 36 by the high power committee or the Upa Lok Ayukta that selection was vitiated as being violative of the provisions contained in the first statute cannot hold good. It was argued that the Lok Ayukta was not supposed to enter into any investigation into the constitution of the selection board, in view of the specific bar under section 8 r/w clause d in schedule 2 of the Lok Ayukta Act. It was therefore argued that the Upa Lok Ayukta exceeded its jurisdiction in arriving at the findings in paragraph 61, where it was found that even if the allegations regarding the favouritism, nepotism and political patronage are not established, the selection process was vitiated for the reason that selection board was not constituted in time, that inviting of applications, conducting of examination, valuation of answer sheets were all got done by the officers of the university who had no authority and that the circumstances would prove that selection process was vitiated by favouritism and nepotism. It was pointed out in the list of candidates furnished in the complaint alleging that their inclusion in the rank list was on political considerations especially to CPI(M) leaders/favouritism and nepotism, the names of one V.S.Sandhyarani, neighbor of Vice Chancellor; councilor candidate of Congress I union in W.P(c).No.491/12 & conn.cases 37 Thiruvananthapuram Corporation; G.N.Lakshmi, D/o.Former President, N.G.O Association (Congress I); one Smt.Manjusha.R, W/o the Chief Sub Editor, Malayala Manorama, were also included. However, the allegation was that respondents 1 to 3 and additional respondents 10 to 13 in the complaint joined hands to see that candidates of their choice and sympathisers of CPI(M) and allied parties were eligible for appointment. The committee had ruled out the allegation seeing that there was no positive evidence. The Upa Lok Ayukta also in para 51 ruled out the contention of the complainant on those grounds. It was pointed out that no dishonest intention on the part of any of the respondents in the complaint qua any of the candidates, could be brought out in evidence. It was pointed out that the scaling down of marks was the practice followed in the previous selection and the selection board took the decision only on the basis of the Notes submitted by the Registrar at the time of its meeting. Similarly it was pointed out that the absence of minutes fixing the norms for awarding marks, could not have been found to be a factor vitiating the selection.
26. Sri Jaju Babu, the learned Senior counsel appearing for the petitioners in W.P(c).No.499 of 2013 pointed out that the W.P(c).No.491/12 & conn.cases 38 candidates who were selected on the basis of the impugned selection have been continuing right from 2008 without any promotion on account of the orders passed by this court. It was pointed out that several of them joined the University on resignation from government departments/public sector undertakings, etc. When they are stagnating in the entry post for no fault on their part, their juniors have already been granted several promotions.
27. The learned senior counsel Sri T.A.Shaji appearing for the petitioners in W.P(c).No.1217 of 2012 argued that under statute 8 of Chapter IV of the Kerala University Statutes it is not necessary that there should be a written test and interview; it is upto the Board to decide how the test should be conducted. It was pointed out that even though a selection board was not constituted before inviting applications for selection for conducting a written test, when the elected syndicate, which came into power that syndicate decided to continue the process of selection commenced by the previous syndicate and constituted a selection board. There was absolutely no illegality either in commencing the selection by the nominated body without constituting the selection board or in continuing that W.P(c).No.491/12 & conn.cases 39 process of selection by the elected syndicate. It was also pointed out that this court had already found that the complaint filed in this case was not a grievance, but an allegation. The question of illegality in constitution of selection board, norms for awarding marks, the norms for selection, etc are not matters which can be gone into by the Upa Lok Ayukta while it is considering a complaint which contains an allegation, in view of the bar under Section 8 read with clause (d) under schedule II of the Lok Ayukta Act.
28. Regarding the question of scaling down, the learned counsel pointed out, on the basis of tabulation sheet produced in the writ petition as Ext.P10 that even if the marks in written test were not scaled down from 100 to 75, the results would have been the same. When 188 candidates could be appointed on the basis of the selection after scaling down the marks to 75+25, 177 candidates alone had joined. All these 177 could have been appointed even if the marks were fixed at 100+25. It was also pointed out that the selection committee did not evolve a new procedure by scaling down the marks. It only followed the procedure in vogue and no benefit could have been available to any candidate either by allowing a scaling down or otherwise. W.P(c).No.491/12 & conn.cases 40
29. Regarding marks in the handwriting test also, it was pointed out with the support of tabulation sheet that there are 105 candidates with 5 marks in the handwriting test whereas the number of candidates included in the shortlist and rank list with 5 marks are 22 and 17 respectively. Out of them the number of candidates appointed was only 4. At the same time, it is pointed out that 82 candidates with 2 marks in the handwriting test, were appointed and out of them 77 candidates joined. There were a total of 18038 candidates with 2 marks out of which 986 found a place in the shortlist and 669 found a place in the rank list. At the same time, 1445 candidates got 4 marks, out of which 153 were included in the shortlist; 99 were included in the rank list and 17 of them were appointed. 66 candidates who got appointment had only 3 marks. It is also pointed out that 19 candidates with 1 mark got appointment. 16 candidates with `0' marks in handwriting were included in the shortlist, out of which 8 were included in the rank list. It was also pointed out that the High Power committee's finding was only to the effect that there was a possibility of malpractice.
30. Sri. Kaleeswaram Raj who appears for 5 candidates who got appointment in W.P(c).No.1114 of 2012 pointed out that W.P(c).No.491/12 & conn.cases 41 all the 5 petitioners are meritorious and they are not included in any of the lists of the allegedly influential categories and hence they do not come under the tainted category. Referring to the judgment of this court in Federal Bank Ltd. v. Geevarghese [1974 KLT 249] it was pointed out that this is an apt case where principle of indoor management can be applied, following the turquoise principle. According to the petitioners, lapses if any committed in not constituting a selection board before the applications were invited cannot be fatal in the matter of selection. It is a case where a nominated body was in power in the place of an elected body. From the point of view of the candidates, there is no vitiating factor to upset the selection and it is not at all equitable to set aside the entire process of selection on the ground of the alleged manipulations, malpractices, nepotism or favoritism. There is not even an allegation as against the petitioners. The requirement of a selection board can be waived in the circumstances of the case where there was no elected body in power and the entire body was involved in the process of selection. Therefore, it is only to be deemed that the commencement of the process of selection was perfectly in accordance with law. After referring to various W.P(c).No.491/12 & conn.cases 42 judgments of this court as well as apex court and judgments of other courts , it was argued that while persons dealing with a company are assumed to have read the public document of the company and to have satisfied themselves that the transaction entered into is not inconsistent therewith, they are not expected to do anything more. The practical rule based on expediency in business has to be adopted, in this case, as held by this Court following the turquoise rule. Further the judgment of the Apex Court in Union of India v. Rajesh.P.U [(2003) 7 SCC 285], University of Cochin v. N.S.Kunjoonjamma [(1997) 4 SCC 426] and Devadas K & others v. Kerala State Financial Enterprises. [ILR 2008 1 Ker. 765] were relied on by the learned Counsel, pointing out that if at all any interference is found necessary against the selection, the petitioners who are in no way involved in any of the allegations are not liable to be disturbed. In Rajesh.P.U's case (supra) the Apex Court, while reiterating the principles in the earlier judgments held that even if the selection is vitiated in respect of some of the candidates, the candidates who are in no way related to the allegations need to be saved. The judgment of the Apex Court in University of Cochin v. N.S.Kanjoonjamma [1997) 4 SCC 426] was relied on W.P(c).No.491/12 & conn.cases 43 pointing out that the candidates who had already appeared in the process of selection were not expected to challenge the same. In this case, Sri.Anu.S.Nair challenged the selection after he participated in the selection process. The learned Counsel pointed out that all these 5 petitioners resigned their previous employment and joined the University and there was no reason for interfering with their selection and appointment. If at all there is any finding against any part of the selection, the interference may be limited to only those who are involved.
31. The learned Senior Counsel Sri.K.Ramakumar, appearing for some of the appointees argued that the Upa Lok Ayukta exceeded its powers. Section 12 of the Lok Ayukta Act only provides for a report from the Lok Ayukta on investigation of the complaints with recommendations. It has no authority either to direct prosecution or to cancel selection. It was argued that the Lok Ayukta's power can be invoked only in cases where other remedies are not available. Even the findings are that there were certain irregularities and assuming that there are irregularities unless those irregularities go to the route of the selection, so as to vitiate the same with specific findings with respect to the public servants who are involved in it and the W.P(c).No.491/12 & conn.cases 44 appointees who are benefited by it, there cannot be any recommendation as against the selection made. Learned Senior Counsel pointed out that the petitioners have been working for the last 8 years without any promotion on account of these proceedings and when there are no allegations against the appointments, interference with the selection is unwarranted; it is only appropriate and equitable that the candidates appointed are not disturbed at this distance of time. The learned Senior Counsel relied on the judgment of the Apex Court in H.C Puttaswami V Chief Justice of Karnataka High Court : AIR 1991 SCC 295 where it was found that the appointees were in no way involved in the alleged malpractices and they had completed 10 years of service; therefore they need not be penalised for no fault on their part. Therefore, it was argued that the candidates in this case also are not liable to be disturbed.
32. Sri.N.Raghuraj appearing for the petitioners in W.P. (C) No.836/2012, who are appointees, referring to the definition of allegation contained in Section 2 (b) (iii) of the Lok Ayukta Act, pointed out that the Upa Lok Ayukta crossed its barriers in placing the recommendations made in paragraph 62 of its report, based on an allegation. It was pointed out that even without W.P(c).No.491/12 & conn.cases 45 arriving at a finding that there was any nepotism or favoritism, Upa Lok Ayukta concluded that the selection was vitiated by favoritism and nepotism, in order to bring the findings within the purview of Section 2(b), i.e, allegation. It was explained that while the recommendations under clauses 1, 2, 4 and 6 cannot be said to be issued on an allegation, the recommendations in clauses 3 and 8 were merely reproduction of the provisions in the definition clause of allegation. Similarly it was pointed out that the perusal of the findings of the Upa Lok Ayukta and the conclusions in paragraphs 51 and 61 would show that the recommendations of the Upa Lok Ayukta are perverse. In paragraph 51 the Upa Lok Ayukta stated that in the absence of any evidence to show that there was political influence or influence by high profiled personalities, it is not possible to say that there was political patronage to some of the candidates who got selection. Similarly in paragraph 61, it was stated that "even if the allegations regarding the favoritism, nepotism and political patronage are not established' the selection process is vitiated for the reason that a selection board was not constituted in time and that inviting applications, conducting examinations and valuation of answer sheets which are expected to be done by the selection board were actually done by the officers of the University, who had no authority to do that. More over the circumstances available in this case which had already been discussed would clearly prove that selection process was vitiated by favoritism and nepotism." W.P(c).No.491/12 & conn.cases 46 The inconsistency in these findings were pointed out contending that those expressions 'favoritism and nepotism' were used so as to bring the findings within the purview of allegations. It was also argued that the irregularities if any in the selection were not liable to be considered by the Upa Lok Ayukta in view of Section 8 read with clause (d) of schedule 2 of the Act. It was also pointed out that the Upa Lok Ayukta entered into findings of irregularity as to the non- constitution of selection board in the year 2005 without any of the persons in the nominated body of that syndicate in the party array. Sri Raghuraj pointed out that the meaning of nepotism is not defined under the Lok Ayukta Act and it has to be understood from the dictionary meaning and it is only relating to the favouritism shown towards relatives. There is a specific finding in paragraph 51 of the report that there is no evidence to show any political patronage or favouritism shown either on account of the relationship with the officers or politicians and there is no material to come to the conclusion in paragraph 61 and the Lok Ayukta should not have carved out a particular paragraph or findings from the rest of the findings in order to bring the findings within the purview of the Lok Ayukta..
33. Adv.Pirappancode V.S.Sudhir, learned counsel for the W.P(c).No.491/12 & conn.cases 47 petitioners in WP(C).No.1961/2012, who are appointees, explained the trauma being experienced by the appointees right from their entry in services on the basis of the proceedings going on either in the Upa Lok Ayukta or this court and the denial of promotion to them, even when they are not in any way involved in these allegations. The learned counsel pointed out that much hue and cry was raised by the media about the selection alleging that the OMR answer scripts were missing. The learned counsel explained that the University had sent the OMR answer scripts of more than 37,000 candidates. Referring to Exts.P17 and P18, it was pointed out that the Secure Print Ltd. could not furnish any documents by which it could be seen that the answer scripts were sent back to the University. If at all it was sent, the only document which they claimed to have in connection with the same did not provide for the mode of transportation or any other details. No records were also seen relating to any payment made towards that dispatch. It was further pointed out that there was absolutely no complaint as against written test. In this case referring to the counter affidavit filed by the petitioners, in W. P.(C) No.37082/2007, the learned counsel pointed out that the University had stated that confidentiality of the selection was W.P(c).No.491/12 & conn.cases 48 maintained. Pointing out the opinion of the expert witnesses who examined all the electronic evidence available in the case, it was pointed out that the Lok Ayukta had, unnecessarily looked into the missing of the personal laptop of the Vice Chancellor which had no relevance at all and that the findings are vitiated by surmises and conjectures. Learned counsel pointed out that the averments in paragraphs 25 to 27 of the writ petition and ground Q of the writ petition are neither denied nor controverted by the respondents. It was pointed out that the written test was conducted on the basis of the decision by the nominated syndicate with entirely different political ideology which was in power, then. Learned counsel furnished a chart showing the marks of first 19 candidates pointing out that even if there was no scaling down they would have found place in the ranked list. It was also pointed out that two candidates in the top of the rank list did not join duty after getting appointments, since they got better employment. The fact that such candidates were included in the top of the rank list belies the conclusion of the Upa Lok Ayukta that the entire proceess of selection was vitiated.
34. Adv. Hood appearing for the petitioners in W.P.(C) No.3878/2012, who are appointees, pointed out that all the W.P(c).No.491/12 & conn.cases 49 petitioners are highly qualified and they were employed in Departments under the Government. One of them is having M.Phil Opto Electronics and the other petitioner is a B.Tech holder. The first petitioner was working as Higher Secondary School Teacher where as the 2nd petitioner was working as LD Clerk in Commercial Taxes Department. Sri.Hood argued that the selection board is one to be constituted from within the syndicate itself and not from any out side body. Therefore, when a decision is taken by the entire body of syndicate it cannot be interfered with or it cannot be termed as inferior to that of a selection board. On the other hand, if the selection was conducted by a body constituted from among persons outside the nominated body of the syndicate, it could have been said to be illegal. The decision taken by a larger body cannot be said to be inferior to a decision by a part of that body.
35. Regarding the finding as to the OMR sheets, it was pointed out that once the OMR sheets were scanned and the scanning results were available and the expert who examined the same who was a member of the Sukumaran Committee and another expert who examined the same on directions by the Upa Lok Ayukta could not find any tampering with the results of the W.P(c).No.491/12 & conn.cases 50 test or with the electronic data. Moreover the experts did not find any manipulation. On the other hand, they found that the contents of the CDs as well as the hard discs tallied. More over the answers in the answer scripts could not have been corrected since bubbles were to be blackened by black ink and not by pencil. Referring to paragraphs 45, 46, 47 of the Upa Lok Ayukta's report, the learned counsel pointed out that the Upa Lok Ayukta has only found that "in the normal course the only possibility is that valued OMR sheets were also sent to the 3rd respondent". In paragraph 46 also Upa Lok Ayukta found that the only possibility is that the OMR sheets would have been concealed or destroyed by the 3rd respondent with the connivance of the 1st respondent-Vice Chancellor. In paragraph 47 Upa Lok Ayukta observed that the question whether the allegations are proved can be decided on the basis of circumstances available in the case. It further proceeded saying that the fact that OMR sheets received in the University office are not forthcoming since those had been concealed or destroyed is a strong circumstance which would go to show that there is merit in the allegation by the complainant that there was malpractice in the selection process. Finding of the Upa Lok W.P(c).No.491/12 & conn.cases 51 Ayukta is that there is only a possibility and there is no material to arrive at the conclusion that those answer scripts were received in the University. The motive behind concealing the answer scripts are also not found out. This court had already held that there should be a finding against the public servants qua particular candidate who benefited out of the influence or otherwise of a particular officer of the University/member of the Syndicate. Sukumaran Committee also found in paragraph XXVI
(iv) that there is no direct evidence with respect to the missing of the OMR sheets. In the absence of any direct evidence, the recommendations in the report are liable to be set aside.
36. Another ground on which the selection was found irregular was on the ground that the marks for the written test were scaled down from 100 to 75. No motive is found behind the alleged irregularity found in scaling down of marks. More over, the allegations raised are mutually inconsistent. When one allegation is that marks in written test are scaled down in order to award higher marks in interview to those who got lower marks in the written test, the other allegation that OMR sheets are concealed in order to conceal the manipulations carried out in the marks in written test would not go together. In case the OMR W.P(c).No.491/12 & conn.cases 52 answer scripts could be tampered with, there is no purpose in scaling down also to award high marks in interview. The Upa Lok Ayukta itself has found that the written test was conducted by the nominated body as early as in 2005. There was no challenge as against that written test which was undertaken when this elected Syndicate was not in power. The decision to scale down marks was taken in the year 2007 when the newly elected body took charge. More over, even if the scaling down was not done, 95% of the candidates would have found place in the rank list and in the light of the availability of vacancies all the candidates could have been appointed. The inconsistency in the findings in paragraph 51 and 61 also was pointed out. Further contention raised was that if at all there was any irregularity in the selection process, there was no reason to cancel the selection, pointing out the ordeal they are subjected to, on account of the proceedings which started from 2007. Relying on the judgment in Jogindar pal and others vs. State of Punjab and others [2014 (6) SCC 644], it was asserted that selection can be interfered with only if all the three requirements laid down by the apex court, in that case were available and all those three requirements were not available in W.P(c).No.491/12 & conn.cases 53 the present case as there is no finding that any of the candidates who got appointment were in any way involved in the allegations levelled against the selection. They have been working in the post for the last several years and most of them joined the University after quitting their regular employment. Further it was pointed out that the finding in paragraph 40 by the Upa Lok Ayukta that the entire selection process was vitiated could not have been arrived at without even considering the possibility to distinguish the cases of tainted ones from the untainted ones. Sri. Hood relied on the judgment in Tridip Kumar Dingal and Others Vs. State of West Bengal and others [2009 (1) SCC 768] and argued that the appointments were not liable to be disturbed after a long gap.
37. Dr.Pradeep who appeared for the appointed candidates pointed out that the complaint did not contain any allegation as to the power of the interim body to conduct the selection. Similarly at the time when the written test was conducted also, there was no complaint against the selection. According to him, it was an action suo motu taken by the Upa Lok Ayukta. It was also pointed out that when the complaint is one of allegation, there was no basis for the Upa Lok Ayukta to W.P(c).No.491/12 & conn.cases 54 investigate into maladministration, which is defined under section 2(k) and arises only in a complaint involving grievance which is excluded from the purview of the Upa Lok Ayukta, in matters relating to selection and appointment. It was pointed out, that the candidate who filed the writ petition did not have any complaint against the selection till the interview was held.
38. Dr.Pradeep, referring to the evidence adduced before the Sukumaran Committee as well as the Upa Lok Ayukta regarding the OMR answer scripts, pointed out that there was absolutely no evidence to show that the final payment made to the Secure Prints was towards the valued OMR answer scripts. Pointing out that amount claimed as against OMR is covered by the bill dated 29.06.2005, which is prior to the written test and therefore the bill dated 09.11.2005 cannot be the one relating to the receipt of valued answer scripts, on which date the outside agency claims that it was sent to the University. Referring to paragraph 40 of the report of the Upa Lok Ayukta, it was pointed out that when PW3 was examined on 7.8.2008 she deposed that there was no reference to the receipt of OMR sheets while making payment and the only material she pointed out towards receipt of OMR sheet was Ext.X3(a) dated 29.06.2005. When W.P(c).No.491/12 & conn.cases 55 she was examined on 4.11.2011, she said that payment was not related to receipt of OMR. Similarly, it was pointed out that there was no allegation in the complaint as to missing of laptop.
39. The learned Counsel relied on the judgment of the the Division Bench of this Court in Commissioner of Police & another V Abida Beevi & another : 2016 (2) KHC 537 and argued that maladministration arises only in a complaint containing a grievance, which cannot be entertained by the Upa Lok Ayukta, and not in a complaint containing allegation.
40. It was further pointed out that the W.P(c).No.11937 of 2011 filed by a candidate seeking implementation of the recommendations in the report, who never challenged the selection or appointment, till 2011 is liable to be dismissed on the ground of delay, in the light of the judgments in Chennai Metropolitan Water Supply and Sewerage Board & Ors. v. T.T.Murali Babu [AIR 2014 SC 1141], State of M.P. and another v. Bhailal Bhai [AIR 1964 S.C 1006] etc.
41. Sri Saji Varghese appearing for the petitioners in W.P
(c).No.594 of 2012 who are appointees, referring to paragraphs 10 and 11 of the writ petition, pointed out that out of the 15 petitioners in that writ petition, 12 of them joined the University W.P(c).No.491/12 & conn.cases 56 after giving up their employment mostly in departments under the Government. Referring to the marks obtained by them in the academic examinations and the qualifications acquired by them it was argued that they were in no way involved in any of the alleged malpractices and there was not even an allegation against any of them in the complaint. Relying on the judgment of the Apex Court in Union of India v. Rajesh.P.U [(2003) 7 SCC 285] it was argued that if at all it was found that there was some irregularity, it is not necessary that the entire selection should be done away with, as directed by the Apex Court.
42. Sri Elvin Peter appearing for the petitioners in W.P(c). No.918 of 2012, who are appointees, while adopting the arguments of the learned Senior Counsel pointed out, referring to para.62 of the report of the Upa Lok Ayukta, that the recommendations are in effect directions and not recommendations and those directions are with respect to matters which do not come under its purview. Moreover, certain directions especially the direction No.3 is inconsistent with the findings in paragraphs 51 and 61, apparently incorporated in order to bring the matter under its purview, knowing fully well that in the absence of such a finding, it has no jurisdiction. W.P(c).No.491/12 & conn.cases 57 Regarding the direction No.4 it was pointed out that while arriving at a conclusion that the OMR sheets were received in the University, the Upa Lok Ayukta did not consider the possibility of the answer scripts being kept away/destroyed by miscreants in order to cast a cloud on the selection.
43. Sri N.N.Sugunapalan, the learned Senior Counsel, appearing for the appointees in W.P(c).No.987 of 2012 explained the allegations raised in the complaint in para.6 and pointed out that findings of the Upa Lok Ayukta were not in terms of the allegations in the complaint. The learned Senior counsel relied on the judgment in Inderpreet Singh Kahlon v. State of Punjab [2006 (11) SCC 356] , which was relied on in the judgment in Joginder Singh's case in which the apex court in paragraph 56 onwards pointed out the requirement of separating the tainted candidates from untainted candidates or vice versa and it was pointed out that if at all any irregularity was found in the selection it was not necessary to cancel the entire selection.
43. Adv. R.T.Pradeep appearing for the petitioners in W.P(c). Nos.2077/2012 and 2477/2012, who are Respondents 10, 11 and 13, the three syndicate members of the elected body which came into power after the commencement of selection but before W.P(c).No.491/12 & conn.cases 58 the interview was made, pointed out that the complaint before the Upa Lok Ayukta contained only an allegation and not a grievance. While considering such an allegation, matters which require consideration should be those which are provided under the Act. Since the petitioners were also found guilty by the Upa Lok Ayukta, a crime was registered against them by the CBCID, under Rule 13(1)(d)(i) of Prevention of Corruption Act. These petitioners challenged the same and seeing that there was no charge alleged against them to the effect that they received any pecuniary advantage those crimes registered against them were quashed, as per judgment dated 1.9.2016, reported in Hashim.K.A. vs. State of Kerala [ILR 2016 (4) Kerala 316]. In the final report filed, it was only alleged that they committed the offence under Section 13 (2) of the Prevention of Corruption Act. This court found that specific misconducts are defined under Sections 13(1)(a), (1)(b), (1)(c) and (1)(d) of the Prevention of Corruption Act. Therefore, the investigating officer ought to have revealed in the final report what exactly is the nature of the misconduct committed by them, instead of merely alleging the offence as one under Section 13(2). Further it was found that when the allegation is that the Public Servants committed W.P(c).No.491/12 & conn.cases 59 misconduct by favouring certain candidates in order to procure employment, the candidates got employment on the basis of that misconduct should also be accused and not witnesses. This court found that the court below had merely taken cognizance in a mechanical manner without any application of mind and did not choose to act in time. The final report as against the petitioners were therefore quashed, however directing the investigating officer to see that a further investigation is conducted and a fresh final report is filed.
44. Referring to Section 2(b)(1) of the Lok Ayukta Act, it was argued that in order to take action against a public servant under the Act, it should be found that he abused his position to obtain any gain either for himself or for another. According to the learned counsel, Section 2(b)(i) of the Lok Ayukta Act is in consonance with Section 13(1)(b) of Prevention of Corruption Act, 1988. Either in the report of the Sukumaran Committee or of the Lok Ayukta, there is absolutely no finding to the effect that any of the named candidates got appointment on the basis of the proximity with any of the officers of the University or any of these petitioners who are the members of the syndicate. There is no finding that there was any personal gain for any of the W.P(c).No.491/12 & conn.cases 60 respondents in the complaint or to any of the candidates at their instance. The petitioners took charge as syndicate members subsequent to the commencement of the process of selection. They assumed office on 24.08.2006, in the middle of the process of selection. They have only continued the process. It was pointed out that the members of the nominated body who commenced the selection were not impleaded in the complaint before the Upa Lok Ayukta or in the writ petition, before finding fault with the commencement of selection without selection board. It was pointed out that no prejudice was found to have caused on account of the scaling down of marks from 100 to 75. Even the percentage of marks in interview or ratio between the number of candidates and the vacancies could not have been said to be excess going by the dictum laid down in Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417] where the Apex Court itself found that there is no hard and fast rule for the same. It was also pointed out that the minutes of the selection committee which were marked as Annexures A5, A7 and A11 were of decisions taken during the course of selection. Absence if any of the minutes in which norms for interview were formulated cannot affect the validity of selection. In the absence W.P(c).No.491/12 & conn.cases 61 of any material to find manipulation or to find that any candidate got any extra benefit, the findings of the Upa Lok Ayukta or the Sukumaran Committee that the selection is vitiated is unsustainable. Referring to the judgment of the Apex Court in K.Manjusree v. State of A.P [(2008) 3 SCC 512], it was pointed out that there was no change in the rule of the game. Only thing is that the marks were scaled down since no decision was taken with respect to the procedure for selection before the commencement of the process of selection by the nominated body. Referring to the judgment of the Apex Court in Jaswinder Singh V State of J&K [(2003) 2 SCC 132] it was pointed out that even the percentage of marks at 40 or even 50 for interview cannot be held bad and therefore, in this case where the marks for interview was only 25%, it cannot be said to be illegal. It was also pointed out that the committee had already decided the mode of selection and there were 3 criteria fixed namely, relative performance, additional qualification and computer experience. It is also pointed out that marks were awarded in the printed format which contained separate heads for awarding marks in the respective columns. It was therefore pointed out that by the mere absence of minutes fixing the W.P(c).No.491/12 & conn.cases 62 criteria, the selection or interview cannot be held bad. It is also argued that non framing of the criteria for selection is not one which can be considered by the Upa Lok Ayukta. At the most it can only be found that it is only an irregularity which cannot render the selection vitiated. It was also argued that the members of the syndicate cannot be considered as public servants and no proceedings are liable to be taken against them under the provisions of the Lok Ayukta Act.
45. Pointing out the definition of public servant under the provisions contained in the Kerala Public Men's Corruption (Investigation & Inquiries) Act, 1987 and the definition of public servant in the Lok Ayukta Act, it was contended that the members of the syndicate cannot come within the purview of the Lok Ayukta Act. It was also pointed out that there is no competent authority as far as they are concerned, as defined under the Lok Ayukta Act. Referring to the difference in the definition of Public Servant under Section 2(c)(viii) of Prevention of Corruption Act and Section 2(o)(v) of Kerala Lok Ayukta Act, it was argued that the members of syndicate or selection board will not come under the purview of the Act. It is pointed out that the Upa Lok Ayukta's findings that the petitioners are Public W.P(c).No.491/12 & conn.cases 63 Servants coming under the Act is perverse and does not have any legal backing.
46. Referring to the definition of public servants in Section 2(v) of the Act 1999, Sri R.T.Pradeep argued that all the bodies included along with the Government are statutory bodies which can sue or be sued in its own name i.e the statutory bodies which are sue generis alone are included in clause v of section 2
(o). In this case the syndicate is a body constituted in terms of the provisions contained in the University Act and selected in accordance with the provisions contained in the first statute. Syndicate as such cannot sue or be sued. On the other hand, the local authority, statutory body, corporation, co-operative society other corporations or bodies can all sue or be sued. Clause v provides that Chairman, Vice Chairman or members of the local authority in the State or a statutory body or corporation established by or under the law of legislature including co- operative society or Government company and such other corporation or boards which are specified by notification come under the purview of the definition of public servant. The members of a syndicate cannot be said to be the members of such a statutory body which can either sue or be sued. W.P(c).No.491/12 & conn.cases 64 Therefore, they do not come under the definition of public servants under clause v. Further it is not under the service or pay of the University so as to come under the definition in clause vii(F). Clause vii(F) provides that a person in the service of pay of a University is a public servant. The members of the syndicate are neither in the service nor in the pay of the University. At any rate, what is found by the Lok Ayukta is that they are public servants as defined under clause (v) of Section 2(o). Yet another contention is that competent authority is not notified for members of the syndicate and they do not have any department to administer them.
47. At this juncture Learned Senior Counsel Sri. Shaji pointed out that when University is specifically provided for in clause (vii)(F) independent of the statutory bodies in sub clause (B) it has to be interpreted to mean that there is a specific exclusion of the members of syndicate or other bodies of University from the purview of the Act.
48. Sri.John Joseph Vettikkad appearing for the petitioner in W. P(C).No.2554/2002, who is respondent No.12 in the complaint and one of the Syndicate members, pointed out that this court had in Ext P1 judgment, already dealt with the W.P(c).No.491/12 & conn.cases 65 distinction between the allegation and grievances defined under the Lok Ayukta Act and found that complaints before the Lok Ayukta involved only an allegation and not grievance. As far as the allegation is concerned the Lok Ayukta is to adopt the procedure as provided under Section 12(3),according to which, a report has to be made. But what the Upa Lok Ayukta did was, it cancelled the selection, directed prosecution and held that selection is vitiated by favoritism, nepotism etc.
49. Referring to the complaint filed before the Upa Lok Ayukta, it was pointed out that there was not even a single specific allegation against the 12th respondent. In paragraph 11 of the complaint, the complainant had only referred to additional respondents 10, 11 and 13. Apart from a general allegation, nothing was stated against the 12th respondent. There is no finding either in the Sukumaran Committee's report or in the Upa Lok Ayukta's order that any of the candidates got any benefit at the instance of the 12th respondent. 12th respondent is the non political member of the syndicate. It was pointed out that the findings and recommendations of Upa Lok Ayukta are mutually contradictory as can be seen from paragraph 51 and 61 the recommendations. The petitioner produced the minutes of W.P(c).No.491/12 & conn.cases 66 the selection board which met on 26.5.2007 as Ext.P8 along with IA No.9758/2012 filed on 16.7.2012, in which the the decision to scale down the marks was taken, following the procedure adopted in the 1992 selection. Referring to Exts.P9 and P10 minutes dated 3.9.2005 and 22.10.2007 of the selection committee, it was pointed out that similar decisions for scaling down were made in other selections also. It was further pointed out that on the basis of the allegations raised against the conduct of the selection, the syndicate had constituted a fact finding committee to inquire into the loss of OMR answer scripts. The committee's decisions are given in Ext.P13 minutes of the syndicate as per the meeting convened on 2.8.2008. The University found that the fact finding authority after a detailed enquiry found that the press agency at Hyderabad had not delivered the OMR sheets to the University. They did not furnish any records to show that the OMR sheets were delivered or those documents were destructed. There was no acknowledgment also for receipt of the OMR sheets from the University. It further found that certain lapses had occurred in the conduct of the examination in July 2005 and the syndicate which was in force at the relevant time cannot shirk its W.P(c).No.491/12 & conn.cases 67 responsibility and such a situation arose because of the negligence and ignorance of the Secure Print as well as the University, as proper records were not maintained by all the sections of the University relating to the examination conducted in 2005. It was pointed out that the selection commenced when the nominated syndicate was in power and it was continued by the elected body. If at all it was found that there was any irregularity in the selection, members of the nominated body were also liable to be proceeded against, instead of proceeding against the members of the elected syndicate alone. Only some of the persons are targeted for no fault on their part even without any allegation against them. It was argued that in the absence of any finding that any particular candidate got extra benefit on account of his presence in the Syndicate, there should not have been any recommendation against him. Along with I.A.No.9728/2012 a list of 17 candidates was produced stating that all those candidates did not join duty. In case the selection was vitiated in any manner, such incident would not have occurred and the candidates in the top of the rank list would have joined immediately on receipt of the orders of appointment. It was pointed out that rank No.16 among the candidates who W.P(c).No.491/12 & conn.cases 68 did not join duty was having 73 marks in the written test and 22 marks in the interview. There is no finding as to malafides on any of the members of the syndicate/selection board. The selection process commenced at the time when the nominated syndicate was in power. Even though notice was issued to the members of the nominated syndicate, none of them filed any counter affidavit. It is therefore stated that the entire allegation as well as the findings as against him and other members are baseless.
50. Shri S.V.Rajan the learned Counsel for the petitioner in W.P.(C).No.2670/2012 filed by the former Vice Chancellor of the University the 1st respondent in the complaint, argued that the Upa Lok Ayukta does not have jurisdiction to entertain the complaint because any matter relating to selection or appointment or concerning the University shall be sorted out in the light of the provisions contained in the University Act and Statutes. When the statute provides for a remedy no other body including Upa Lok Ayukta can entertain any complaint relating to such matter. According to the learned counsel, Section 66 of the Kerala University Act provides that no civil court shall have any jurisdiction to deal with any question or to determine any W.P(c).No.491/12 & conn.cases 69 matter which is required to be dealt with by any authority or person under the Act. According to the learned counsel, sub section 3 of Section 7 of the Act provides that the Chancellor may, by order in writing, annul any proceedings of any of the authorities of University which is not in conformity with this Act, statutes, ordinances, regulations, rules or the bye-laws. It is his further contention that Upa Lok Ayukta cannot give recommendations to the Government to cancel the appointments in the University; it is the Chancellor who is the supreme statutory authority in respect of all matters relating to the University. The power vested in the Chancellor under Section 7 (3) cannot be exercised by any authority other than the Chancellor. Referring to Halsbury's Law of England, 4th Edition Vol.I, paragraph 31, the judgment of the Apex Court in Anirudh sinhji Karansinhji Jadeja V State of Gujarat [1995 (5) SCC 302]: Commissioner of Police V Gordhandas Bhanji AIR 1952 SC 16, Purtabpore Co Ltd Vs Cane Commissioner: AIR 1970 SC 1896, Nagaraj Shivarao Karjagi V Syndicate Bank:
AIR 1991 SC 1507, Mansukhlal Vithaldas Chauhan V State of Gujarat: AIR 1997 SC 3400, etc. it was argued that the power of the Chancellor cannot be delegated to anybody else. Even W.P(c).No.491/12 & conn.cases 70 assuming that the Upa Lok Ayukta has jurisdiction to entertain the matter, its recommendation can be given only to the Chancellor. It was further argued that Upa Lok Ayukta did not have power to recommend cancellation of a selection. Further it was pointed out that the complainant did not have any grievance in the matter. He was only a member of the Senate and he cannot invoke the jurisdiction of the Upa Lok Ayukta in respect of the selection made. It is pointed out that remedies can be prescribed by the Upa Lok Ayukta only if there are no remedies provided under the Act. Further Upa Lok Ayukta can only submit a report and it cannot direct cancellation of the selection.
Referring to Statute 18(a) of the First Statute, it was pointed out that it was the Registrar to maintain the records of the University and not the Vice Chancellor.
51. Further it was argued that the OMR sheets did not have any significance after the electronic data was already taken from it. Section 4 of the Information Technology Act, 2000 provides that notwithstanding anything contained in any law which provides that information or any other matter shall be in writing or in the type written or printed form, such requirement shall be deemed to have been satisfied if such information or W.P(c).No.491/12 & conn.cases 71 matter is rendered or made available in an electronic form and accessible so as to be usable for a subsequent reference. In this case the electronic form of OMR sheet was available. Further it was argued that the experts had examined and cross checked the CDs and the hardware of the computer in the University as well as the CDs furnished by the evaluation agency and no tampering was found by them. Under Section 45 A of the Indian Evidence Act, when there is an opinion on any matter relating to any information transmitted or stored in any computer resource or any other electronic or digital form, it is a conclusive evidence on that point and when the experts opined that there is no tampering on the records, the Upa Lok Ayukta ought to have accepted that evidence.
52. Further it was pointed out that the OMR sheet comes under secure system as defined under Section 2(ze) of the IT Act. Section 2(ze) defines secure system to mean computer hardware, soft ware and procedure that are reasonably secure from unauthorised access and misuse. Further it comes under Cyber Security, as defined under Section 2(mb) of the Act also, when electronic copies were available. Thus the electronic record of the OMR sheet had legal recognition as defined under Section 4 W.P(c).No.491/12 & conn.cases 72 of the IT Act, 2000 and did not have any tampering in view of the experts' opinion as provided under Section 45(A), 65(A) and 65 (B) of the Indian Evidence Act. The instructions to the candidates given in the OMR answer sheets are part of secure system, which are again in conformity with the standards of cyber security. It was further argued that the finding of the Upa Lok Ayukta that OMR sheets were concealed or destroyed in order to conceal the manipulation of the marks in the written examination was absolutely baseless since no one had pointed out any manipulation of marks recorded by OMR system since there was no manipulation of marks electronically recorded. The experts before the Sukumaran Committee as well as the Upa Lok Ayukta ruled out tampering of either the CD or the hard ware, after verification of the hardware of the OMR system and the CDs. The hard disc of OMR recorded marks is an electronic record. It was argued that the OMR system which was used in the examination comes within the definition of `computer' defined under Section 2(i) of the IT Act. It is argued that the entire procedure including conduct of written test was initiated by the Government nominated syndicate in exercise of its power under clause 15 of Section 23; after the elected syndicate W.P(c).No.491/12 & conn.cases 73 assumed office, it moved the Government for lifting the ban on appointments and decided to proceed with the selection, after the meeting of the Minister for Finance and Minister of Education with the representatives of the syndicate and University. Wide discretion is left to the selection board in order to determine the nature of the test for finding out the candidates suitable for selection. Neither the scaling down of marks nor the missing of answer sheet have affected the selection. W.P(c) No.519 of 2012
53. W.P(c).No.519 of 2012 is filed by the Pro Vice Chancellor Dr.Jayaprakash, who is the 3rd respondentbefore the Upa Lok Ayukta (hereinafter referred to as the '3rd respondent ' and who, according to the complainant and the Upa Lok Ayukta, has received the OMR answer scripts after valuation from the Secure Prints Ltd. Sri. Bechu Kurian Thomas, the learned Senior Counsel appearing for the 3rd respondent (petitioner herein) contended that 3rd respondent has been unnecessarily implicated in these proceedings and he is in no manner connected with the selection. It is his case that even though he was the Pro Vice Chancellor, he was not concerned or connected with the examination or the selection to the post of Assistants in the W.P(c).No.491/12 & conn.cases 74 University. He is concerned only with the academic matters. Referring to paragraphs XXV(iii), XXVI(iv) and XXVI of the report of the High Power committee, it was contended that high power committee could not find any direct evidence on the missing of OMR sheets.
54. The learned senior counsel contended that the findings of the high power committee as well as the Upa Lok Ayukta as against Dr Jayaprakash are perverse and not supported by any evidence. Dr. Jayaprakash joined the University as Pro Vice Chancellor on 2.5.2005 and continued there till 30.04.2009. He joined subsequent to the publication of notification inviting applications which was on 3.3.2005. As per the judgment, which is produced as Ext.P8 in this writ petition and Ext.P1 in W.P(c).No.491 of 2012, the high power committee was to inquire into 12 issues mentioned in para 39. The first question to be considered was : clause 4(a) "whether OMR sheets were delivered to the Kerala University and if so, when". The committee in paragraph XXVI(iv) found :"a clear picture of the fate of the OMR sheets after they were valued is not emerging in spite of our best efforts to trace its track. The high power committee arrived at the finding that Dr.Jayaprakash W.P(c).No.491/12 & conn.cases 75 received the valued OMR sheets on the ground that Upa Lok Ayukta's finding regarding return of OMR sheet was confirmed by this court and therefore that finding was binding on the committee. However, the Upa Lok Ayukta found that there was no such finding by this court when this court directed it to enquire into it. It was pointed out that even in the objection before the Upa Lok Ayukta, produced as Ext.P12, he had stated that he was not at all responsible for the conduct of the written examination or the selection to the post of Assistants. It was also stated that there was no order issued by the Vice Chancellor or the University authorising him to conduct the examination or to do anything in the process of selection. He had only assisted the Vice Chancellor in certain confidential matters on the basis of his request. It is pointed out that it was the Controller of the Examination who was in charge of the examination. His case was that he never received the OMR sheets but the rank list of written examination along with soft copies were received in 2007 in 2 sealed packets which he had handed over to the Registrar on the same day. The high power committee as well as the Upa Lok Ayukta had entered into findings against him, on the basis of the letter given by the Printer in 2008, saying that OMR scripts W.P(c).No.491/12 & conn.cases 76 were dispatched to him. It is his case that the said letter is not reliable and the same is evident from an analysis of the testimony of the Printer itself.
55. In the objection filed by the University before the Upa Lok Ayukta, it was stated that Pro Vice Chancellor sent the OMR sheets for evaluation and he received the result data in sealed packet consisting of soft copy and hard copy during November, 2005 and that the University never received the OMR sheets back from the Printer. The learned Senior counsel pointed out that the air consignment note Ext.P11, which was marked as Ext.R3(e) before the Upa Lok Ayukta, shows that the name of consignee is Phanikrishna and the name of consignor was shown as Registrar, the University of Kerala. It is also contended that the OMR sheets were sent by the Registrar to the Printer at Hyderabad on 5.10.2005. The description of consignment is stated as "examination materials". Referring to Ext.P11(a) dated 25.06.2005, which was marked as Ext.R3(p), it is pointed out that the consignment note Ext.P11 was with respect to the examination material, as can be seen from the bill Ext.P11(a) series marked as Ext.R3(b) which relate to printing and supply of OMR sheets and the conveyance charges for the same. In other W.P(c).No.491/12 & conn.cases 77 words, those documents relate to work done prior to the schedule of examination. Ext.R3(p) bill from the air cargo is dated 29.06.2005. Referring to Ext.P11(b) marked as Ext.R32 series, it is pointed out that those bills are also for printing and for proof reading and for OMR sheets prior to the holding of the examination. It is pointed out that the only document which is against the petitioner is Ext.P11(c) which was marked as Ext.R3
(j) in which the printer addressed the Vice Chancellor saying that Mr.Phanikrishna was the person in charge and he had said that he dispatched the OMR sheets to the petitioner- Dr.Jayaprakash in November, 2005 and the only document available to show dispatch of OMR sheets, as per the letter of the printer, enclosing it, was Ext.P11(c), which was marked as Ext.R3(i) before the Upa Lok Ayukta. The Secure Print Ltd. handed over that letter when the Registrar and the Security Officer visited the Secure Prints Ltd on 7.6.08, after the Upa Lok Ayukta directed the University to produce the OMR sheets. At the relevant time Sri.R.Phanikrishna was the Production Manager of the institution in charge of Printer and when he was called to that office on 09.06.2008 in presence of the officers of the University he stated that he dispatched all the documents W.P(c).No.491/12 & conn.cases 78 including the OMR answer scripts in 2005 itself in the name of Dr.Jayaprakash who had entered into an agreement with the Secure Print Ltd. and according to them, there was no negligence on their part in returning the OMR sheets. In that letter itself they stated that the only available document which reveals the dispatch of OMR answer scripts was Ext.R3(i) which shows "dispatched on 09.11.2005" to Dr. Jayaprakash, Sub:
dispatch details. from Hyderabad to Trivandrum of OMR answer sheets after screening. It is stated that 37931 answer scripts were sent in 8 packets. The learned counsel for the petitioner pointed out that mode of dispatch/transportation is not given in this letter.
56. Refering to Ext.P11 (e) deposition of Sri Phanikrishna who was the Production Manager, before the Upa Lok Ayukta, it was argued that he had deposed in the chief examination that he was in charge of Unit No.4 only, which relates to printing. It was stated that there was no agreement with the University and himself while he was working in the press. Referring to the air cargo charges covered by Ext.R3(p) (Ext.P11(a)), it is stated that the charges mentioned therein related to cargo charges, loading, unloading, incidental charges and transport charges for the W.P(c).No.491/12 & conn.cases 79 materials sent to the University on 29.06.2005. However, he deposed that he did not recollect or remember whether there was any document in connection with the examination to the post of Assistants and Typists. When he was questioned as to the dispatch details covered by Ext.R3(z), he stated that that letter was signed by somebody on his behalf on 27.6.2005 and he did not have any idea as to who signed it and he further stated that if a letter is signed either by himself or by somebody on his behalf, his name would be shown below the signature and he stated that R3(Z) was not in respect of sending any examination material. It was also admitted that the dispatch details did not specify the mode of transport. In answer to the question when he put his signature in the document, he answered: in 2008 when he went to the press." It was further stated that at the time when he signed the document in 2008, he was not the authorised signatory of the press. He stated that he did not undertake any search for any document acknowledging receipt of OMR sheets by the University, since he was not working there by that time.
In answer to the question that whether OMR sheets were returned to the University it was answered that scanned OMR sheets with hall ticket chart and scanning chart were sent to the W.P(c).No.491/12 & conn.cases 80 University. He also stated that when articles are taken from one unit to another unit, there will be documents to show the transition. He further stated that there was no agreement between Jayaprakash and himself at any time. In the cross examination also, he stated that he saw the document in the file when the officers of the University visited. The witness stated that he had not produced anything to show that the OMR sheets were forwarded to the University.
57. The contention of the Senior Counsel is that the outside agency would have found it insignificant to retain the answer scripts, once the scan reports were there. It is pointed out that the finding against the 3rd respondent that OMR answer scripts were sent to him and that he had received the OMR sheets were arrived at relying on the bill dated 9.11.2005. It was pointed out that in all the bills issued from the Secure Prints the details regarding the mode of transportation, lorry receipt, Air cargo, destination were included. When the University as well as the complainant stated that the Secure Print Limited had forwarded the bill dated 9.11.2005 that bill alone did not have the details of the mode of transportation or lorry receipt or the destination, even the details of the articles sent are not given in W.P(c).No.491/12 & conn.cases 81 it. It is pointed out that the bill issued from the very same Secure Print on the very same day as well as on the next day, contain all these details. Ext.X7(A), which is produced as Ext.P15 in the writ petition, Ext.R3(O) which is produced as Ext.P13, Ext.R3(M) which is produced as Ext.P14 and Ext.X7(A) produced as Ext.P15 and Ext.X7(B) produced as Ext.P16 would show that it is only in the bill dated 9.11.2015 alleged to have been furnished along with the letter of the Secure Print that the Production Manager Sri.Phani Krishna had forwarded the answer scripts on 9.11.2005 to the 3rd respondent. But it is only the bill which does not contain any details.
58. It is also pointed out that Ext.P11(a) which was produced as Ext.R3(p) before the Upa Lok Ayukta which contained the split up charges in respect of each item, indicates the charges for the OMR as Rs.1,52,587/- (Rupees One lakh fifty two thousand five hundred and eighty seven only). The Learned Senior Counsel M/s Sri. Bechu Kurian Thomas and Gopalakrishna Kurup and Dr. Pradeep, learned Counsel appearing in connected cases pointed out that the sum of Rs.1,52,587/- mentioned against OMR sheets, in Ext. R3(p) relates to the bill dated 29.6.2005, that is before the written test W.P(c).No.491/12 & conn.cases 82 was held and therefore it would not have been the valued answer sheets. The bill dated 29.6.2005 is for a sum of Rs.1,52,587/-, and it is issued well before the written test. The bill for Rs.17,25,997/- towards alleged final payment included the bill dated 29.06.2005.
59. It was also pointed out that even the signature of Phani Krishna in Ext.P11(d) [Ext.R3(i)] and Ext.P11(a) in his deposition defers. It is contended that the Sukumaran Committee found that there is no direct evidence as to the answer scripts and it is merely on the basis of surmises and conjectures and not on the basis of any evidence that the 3rd is implicated, which ultimately spoiled his career itself. Regarding Ext.X5(b) it is the contention of the petitioner that on analysis of the evidence of the witness Phanikrishna, Ext.X5 cannot be relied on. That document is one which is created by the printer, when the University Officials went there and hence the finding of the Upa Lok Ayukta can only be seen as perverse. According to the learned Senior Counsel there is absolutely no evidence before the Sukumaran Committee or the Upa Lok Ayukta to arrive at a finding that the OMR sheets were received by him or that he manipulated the answer scripts or that for the further finding W.P(c).No.491/12 & conn.cases 83 that the selection was vitiated on account of that. According to the learned Senior Counsel there is absolutely no evidence to show that OMR sheets were sent from the press to the petitioner or to the University. The learned Senior Counsel further argued that if at all it can be seen that there is some evidence, if that does not support the findings then also it has to be treated as no evidence in which case the findings are liable to be vacated. It was also pointed out that even the complaint was not maintainable against the petitioner.
60. Referring to the provisions contained in Statute 18 under Chapter VII of the Kerala University First Statute, 1977, it was argued that it is the duty of the Registrar to conduct the examinations and to keep in custody all the records of the University and to conduct the official correspondences of the University and for the proper maintenance of the records of the University. Therefore, it is stated that the Pro Vice Chancellor is not supposed to maintain any of the records and he is in no way involved in the process of selection to the post of Assistants. The finding that the OMR sheets were received by the petitioner, is rendered in the absence of any evidence. Referring to the finding of the Upa Lok Ayukta in paragraphs 44 and 45, it is W.P(c).No.491/12 & conn.cases 84 argued that the Upa Lok Ayukta had found on the basis of Ext.R3
(a) that he was in charge of all academic examinations. However, it was contended that the finding that there was ample evidence to show that he was looking after the conduct of the examination for selection to the post of Assistant Gr.II is not supported by any material. Upa Lok Ayukta found that there is evidence to show that the OMR sheets were sent by the petitioner to the Secure Print for valuation.
61. The learned Counsel relied on the judgment of the Division Bench of the Orissa High Court in Jagannath Naik and Ors. v. Additional District Magistrate (L.R.) and Ors. [AIR 1996 Ori. 16] and argued that this court can interfere with the findings of fact if it is based on no evidence or based upon extraneous or irrelevant factors and evidence. Referring to "Administrative law 7th edition by H.W.R. Wade (page 312), it was argued when evidence taken as a whole is not reasonably capable of supporting the finding no conclusion shall be reached on that evidence. At any rate none of the candidates is found to have been benefitted at his instance.
62. The contention of Adv. Bechu Kurian Thomas, the learned Senior counsel, is that there is absolutely no evidence as W.P(c).No.491/12 & conn.cases 85 against the 3rd respondent and whatever materials produced before the High Power Committee or the Up Lok Ayukta were not at all relevant in deciding his involvement or guilt and that the findings are arrived at on surmises and conjectures and therefore the findings against him and recommendations based on that are liable to be set aside.
63. All the other counsel appearing for the appointees either as petitioners or respondents including Senior Counsel Shri Vijayabhanu were heard and they adopted the arguments hitherto explained.
64. Sri. T.R Ravi, the learned Counsel appearing for the complainant before the Upa Lok Ayukta, who is a respondent in almost all other writ petitions refuted the contentions raised by the learned counsel appearing for the petitioners. Referring to para.4 of the report of the Upa Lok Ayukta, he pointed out that several of the findings of the Upa Lok Ayukta in its first report on the complaint, were confirmed by this court in Ext.P1 judgment. The findings of the High Power Committee as well as the Upa Lok Ayukta are rendered in that background. It is pointed out that this court issued further directions in the matter only to see that there was an effective adjudication of the complaint after W.P(c).No.491/12 & conn.cases 86 giving an opportunity of hearing to all concerned, on being convinced of the seriousness of the issue raised. This court had only widened the scope of the complaint, in order to fix the responsibility on the real culprits. It was pointed out that the learned Judge found it necessary to keep W.P(c).No.37082 of 2007 pending, in view of the fact that considerable materials were placed before the Upa Lok Ayukta to demonstrate that the selection was vitiated. In para.6 of the judgment, the learned Judge observed that one of the areas of controversies which was considered by the Upa Lok Ayukta was whether the OMR sheets which would have been scanned by the outside agency as such were retained by the outside agency or forwarded to the University. The learned Judge noted the factual findings of the Upa Lok Ayukta going by the materials on record, that apart from the soft copy, containing the marks in the OMR test, the combined marks in the written test, the OMR sheets, in 7 bundles were forwarded to the University in the year 2005 itself. The complaint was filed immediately after the answer key was published on 26.05.2008. The answer key itself contained several mistakes and the reason for publishing answer key in respect of the examination conducted in the year 2005 was unexplained. W.P(c).No.491/12 & conn.cases 87 On account of the scaling down of the marks in written test, the difference of marks between candidate No.1 and 2116 which was 18 got reduced to 13.5. Therefore even a fraction of mark in the selection had a decisive role. In Ext.P1 judgment it was already found that the complaint was one containing an allegation and it could be entertained by the Lok Ayukta. It had also found that the Upa Lok Ayukta was right in coming to the conclusion that Exts.X5(a) to X5(b) negatived the contention of the university authorities that they had not received the answer scripts from the evaluation agency, seeing that there was no tenable explanation from the university officials for that serious lapse, which could not be explained by anybody. Therefore, the learned counsel argued that the high power committee's finding that this court had already found that the answer scripts have reached the University was rendered in that background. In clause (b) thereof in para.25, this court also found that "going by Exts.X5
(a) to X5(b), bundles of the OMR sheets along with the results of the candidates were forwarded by the evaluation agency in the year 2005 itself. In that event there was unexplained delay in publishing the short list. The responsibility of the University to retain all materials relating to a selection for a reasonable period W.P(c).No.491/12 & conn.cases 88 was also found. W.P(c).No.37082 of 2007, was kept pending so as to enable the petitioner to rely on the findings of the Up Lok Ayukta in support of his contentions against the selection. It was also found that if the selection process is found to be vitiated, no person shall be permitted to be a beneficiary of such a selection as the same would negate Articles 14 and 16 of the Constitution of India. Further in paragraph 31 the learned Judge had found that whether the OMR sheets were available at all was a moot question and if it was not made available it may lead to an inference that there was irregularity in the selection. It also found that if there is irregularity in the selection process, then irrespective of whether the investigating agency is actually in a position to say or pin point A, B or C it might be necessary for a public authority like the University to mend its ways and take cognizance and possibly retrace the steps. Further the complainant was permitted to take steps to amend the complaint and implead all necessary parties, on being convinced of the irregularities involved in the selection. As the OMR sheets were not coming forth, this Court directed investigation into it on specific terms as given in para.39. According to the learned counsel, the directions contained in sub clause (a) to (c) of clause W.P(c).No.491/12 & conn.cases 89 4 of para.39 of the judgment has to be read along with the findings in para.25 which would show that there was a definite finding on the question of missing of OMR sheets.
65. The learned counsel further pointed out that the absence of a duly constituted selection board for conducting the written test, the irregularities in the evaluation of handwriting as well as the absence of any decision regarding norms to be followed for awarding marks in the interview were all found by the committee on the basis of the evidence and materials before it. It was pointed out that even in the answer key, which was published much after the interview, 17 questions were found incorrect in paragraph xxiv(v). The learned counsel pointed out that the materials made available before the committee were sufficient to arrive at a finding as to the involvement of the 3rd respondent, the Pro Vice Chancellor Dr.Jayaprakash (3rd respondent in the complaint). It was pointed out that the findings against the 3rd respondent were all based on evidence on record, all of which go against him. The high power committee explained the sequence of events with respect to the process of selection in para.XXIV. The Committee found that the 3rd respondent who was witness No.15 before the committee was W.P(c).No.491/12 & conn.cases 90 the Pro Vice Chancellor during the period from 2.5.2005 to 30.04.2009. On the basis of Ext.D29 it found that the Pro Vice Chancellor headed several meetings held after 15.02.2005 for arranging the written test for selection; 3rd respondent had admitted that he sent the OMR sheets to Secure Print Ltd. for valuation on 3.10.2005. At the same time, the Secure Print had claimed that the valued OMR sheets and mark lists were returned to him on 09.11.2005. It was further found that the final bill of the Printer was paid on 7.3.2006. In para.XXV(iii), the committee observed that there was no definite clue for tracing the OMR sheets, even though the Printer had said that the OMR sheets were sent to 3rd respondent on 9.11.2005 after valuation. The committee found that the OMR sheets were not traceable and in para.XXV(iv) it found that since the statutory selection board was not constituted, it was not possible to find out who is exactly responsible. In the absence of selection board, everybody would shirk their responsibility. The Committee found in para.XXV(vi) that the payment towards the valuation of answer scripts including OMR sheets for the period from 4.2.2005 to 07.03.2006 was already settled and all the controversies were with respect to the period subsequent to W.P(c).No.491/12 & conn.cases 91 3.2.2005 when 3rd respondent was the Pro Vice Chancellor. The committee found that the official witnesses had deposed that 3rd respondent was in full charge of the test and the follow up actions made, though according to him he had only rendered a helping hand to the Vice Chancellor on his request. On the basis of the depositions of witness No.2 S.Shyamala, Joint Registrar, it was the 3rd respondent who was controlling all the matters relating to the test and the answer papers were stored in the space in her control by the Pro Vice Chancellor. According to witness No.14 Smt.Vanaja, also, the 3rd respondent was in direct charge of the examination and connected matters. Smt.Krishnambal witness No.3 who had retired on 31.1.2007 also deposed, that she had made the payment of Rs.17,25,987/- in favour of the Secure Print Pvt. Ltd, as per document No.56, in settlement of the bills. Witness No.6 Dr.M.K.Ramachandran Nair, the Vice Chancellor had also deposed that he had authorised Dr.Kevin who was the former Pro-Vice Chancellor to supervise and control and monitor the written test. Dr.Jayaprakash succeeded Dr.Kevin. In para.XXVI the commission explained the evidence that could be gathered from various documents produced before it. It was found that several W.P(c).No.491/12 & conn.cases 92 meetings were held during 16.5.2005 to 09.08.2005 in which the 3rd respondent had participated and in the last meeting on 09.08.2005, it was decided to conduct evaluation of handwriting test inside the University and to bifurcate the OMR sheets and to keep it in 2 separate bundles. Committee found the involvement of the 3rd respondent from various documents before it. The commission further found from the admission of the 3rd respondent that it was he who certified that Secure Print can be selected as the agency for the work and that printed materials were sent to his name in his residential address by the Printer. It was also seen that as per document No.D66(a) - the air consignment note dated 29.06.2005, the cargo was already sent. The committee also noted the admission that he had sent the answered OMR sheets for valuation to the Printer. He also produced Ext.D87(c) as the forwarding letter. The committee found importance in Ext.D87(c), which was produced by 3rd respondent, stated to be a letter forwarding the answered OMR sheets to the Printer. But seeing that the 3rd respondent had not produced the document D87(c) anywhere else, Committee did not accept the same as it was not possible to produce Ext.D87(c) for the first time before the committee. While the case of W15 W.P(c).No.491/12 & conn.cases 93 was that Registrar had forwarded the OMR sheets to Secure Print under Ext.D87(b), the definite case of the secure print was that the valued OMR sheets were sent to 3rd respondent. The committee found statutory responsibility on the Vice Chancellor to maintain the records. It was further found from the deposition of the witness Nos.17 and 19 that in a press conference held in the presence of Vice Chancellor, 3rd respondent stated that OMR sheets were available with the University, in view of Ext.D87(e). Referring to Ext.X3(a) receipt, it was found that the original question papers and OMR sheets were utilised in the examination and the valued answer scripts were transmitted by the Printer to the University. At the same time, Smt.Krishnambal who settled the payment stated that she had paid the final bill on direction from the W15. The evidence adduced in respect of the issue was also elaborately considered with reference to the documents and the reply given by the Secure Print which were marked as D69 and 69(a). Further documents 85 and 86 were also produced before the Upa Lok Ayukta by witness No.12. The Accounts Manager of Secure Prints Ltd. did not furnish any details of D85 or D86 which were ledger accounts in connection with the transport charges. W.P(c).No.491/12 & conn.cases 94 Referring to D85 and D85(b) dated 7.3.2006 it was pointed out that the final bill was paid based on that on 07.03.2006. The Committee found out that 3rd respondent did not have a case regarding Ext.D87(c) in the writ petition filed by him, i.e W.P(c). No.32034 of 2008. It was after undertaking all these exercises that the committee arrived at a conclusion that there was no clear picture of the fate of OMR sheets and there was no direct evidence on it. According to the Printer, the OMR sheets were dispatched on 09.11.2005. It was after all these that the committee came to the conclusion that in the absence of direct evidence, the circumstances alone were available and from those circumstances, the reasonable inference was that 3rd respondent had received the answer sheets and further found in para.27 that the ultimate responsibility was with the Vice Chancellor. Regarding the findings as against the 3rd respondent, the Committee observed in in para.XXVI(i) of its report that even according to the 3rd respondent himself, the answer sheets were forwarded to the Printer as per letter dated 3.10.2005 with a specific direction to the press to keep the OMR sheets after scanning and to return them whenever requested by the University. He had also admitted that rank list along with soft W.P(c).No.491/12 & conn.cases 95 copies were received in 2007 itself, though he said that it was handed over to the Registrar on the same day of its receipt. According to him, when the Registrar informed him about the applications received from candidates for OMR answer key the Printer was requested to return the OMR sheets and answer keys, but the Printer informed that a search was going on to find out the OMR sheets and later informed that the OMR sheets would have been destroyed. The 3rd respondent also deposed before the Upa Lok Ayukta that he had contacted the transporting agency and courier services, who informed him that they did not receive or deliver any cargo during the said period. According to him, the letter which was given to the Registrar was not reliable. He filed an additional affidavit stating that he did not receive the OMR sheets after scanning from the Printer. He evaded his responsibility also saying that his statutory duty was limited to the conduct of University examinations on academic sides only.
66. It was pointed out that the University's version was that it was the 3rd respondent who received the result data in a sealed packet consisting of soft copy and hard copy during November, 2005. According to them, the University did not get W.P(c).No.491/12 & conn.cases 96 the OMR sheets from the Secure Print.
67. The Upa Lok Ayukta also found that the 3rd respondent had presided over several meetings convened in his Chambers for making arrangements for the conduct of the written examination held on 3.7.2005. He had forwarded the OMR sheets to the Secure Print Ltd. for valuation. According to Secure Print Ltd, the valued OMR sheets were sent to the 3rd respondent on 09.11.2005. It further referred to the action taken by the Upa Lok Ayukta when the complaint was under
consideration. It was noticed that the Registrar of the University had filed an application to review the order to seize the answer scripts, undertaking that the answer scripts would be produced before the Lok Ayukta. Thereafter the University took the stand that the answer sheets were with the evaluation agency and that answer scripts were kept there for maintaining the confidentiality of the written test. Referring to the allegation of the complainant that the answer scripts were destroyed or concealed on the apprehension that the manipulation in the marks would be revealed, the Upa Lok Ayukta found that the said contention was relevant in considering the question whether there was manipulation of marks. The evidence of the Chairman W.P(c).No.491/12 & conn.cases 97 of the evaluation agency Secure Print who was examined as PW20 and that of Production Manager as PW19 was evaluated with reference to the documents. The evaluation agency had furnished Ext.X(5) report to the Vice Chancellor through the Registrar and Security Officer when they reported before it, for enquiry regarding OMR sheets, immediately after the Upa Lok Ayukta issued orders for seizure of the answer sheets. In Ext.X (5) the Chairman of the agency stated that the OMR answer scripts were dispatched on 09.11.2005 in the name of the Pro Vice Chancellor Dr.Jayaprakash - the 3rd respondent. A copy of the covering letter was also handed over to the Registrar. Ext.X (5) report was produced by the Registrar along with copy of dispatch details received from there. Ext.X(5)(b) indicated the details of the articles dispatched. From Ext.X(5)(b) also it was found that the articles were sent in the address of the 3rd respondent. The High Power Committee had already found in its first order that the contentions of University that they did not receive answer scripts from the evaluation agency is not correct and referring to the judgment of this Court, the High Power Committee also found that it was received in the University, as found by this court in the judgment. The Upa Lok Ayukta did not W.P(c).No.491/12 & conn.cases 98 accept it, as the High Court itself had directed that the question requires to be considered after collecting materials. Therefore, the Upa Lok Ayukta considered the evidence of various officials in the University as well as that of evaluation agency regarding the involvement of the 3rd respondent, payments effected etc. Referring to the evidence adduced by examining the PW3-the Deputy Registrar, it was found that payment was made to the Secure Print by the 3rd respondent and as instructed by him.
However, it was found that the evaluation agency or the University did not have a case that any further payment was required to be made. It was pointed out that it was as an alternative that the Upa Lok Ayukta found that even if it is assumed that the answer scripts were not received, there was no explanation for not enquiring the whereabouts of the OMR sheets and why it was not sent to the University and why the University did not enquire into it when they received mark lists and other records. The Upa Lok Ayukta found that there was no material to show that there was any agreement between the evaluation agency and the University to retain the OMR sheets with them. The Upa Lok Ayukta disbelieved Ext.R3(c) letter produced by the 3rd respondent, by which Secure Prints was W.P(c).No.491/12 & conn.cases 99 requested to keep the OMR sheets with them after scanning and to return them whenever required. Upa Lok Ayukta found that Ext.R3(a) letter was not produced in the first proceedings and therefore that document can only be a forged document. Going by the version of the respondents themselves it was found that it was the 3rd respondent who supervised and dealt with the examination till the final payment was made to the evaluation agency; even according to the 2nd respondent he was the sole authority dealing with all transactions with the printing and evaluation agency.
68. Even though no manipulations were found on a comparison of the C.Ds with respect to the hardware or hard discs by the expert after verifying the computer used for the tabulation work at University and no malpractice was found by him on disc image analysis, the Upa Lok Ayukta found that the missing of the official laptop of the Vice Chancellor had to be viewed with suspicion, since according to the complainant the rank list was prepared in the personal laptop of the Vice Chancellor and according to him there are manipulations in the mark list and other reports. The laptop was concealed. Referring to the examination of the 2nd respondent, it was stated W.P(c).No.491/12 & conn.cases 100 that the rank list was prepared in the official computer of the Vice Chancellor and that RW2 Registrar also stated that the Vice Chancellor did not give back the laptop saying that it was missing. Another factor found suspicious by the Upa Lok Ayukta was that the absentees' list in one of the centres was also missing. It was pointed out that one Sindu Sona Rani had submitted 2 applications pursuant to the notification and she got 2 hall tickets of 2 different centres. The University could not produce the absentee list which was prepared by the invigilator and handed over to the officer of the University. Therefore, it was found that missing of OMR sheets, missing of personal laptop of Vice Chancellor and missing of absentee list would clearly prove that there was malpractice, favouritism and nepotism shown by respondents 1, 3 and 10 to 13 in preparing the selection list. Yet another irregularity found by the Upa Lok Ayukta was that the selection board was constituted only after written examination after obtaining the results of valuation of OMR sheets. The Vice Chancellor had constituted the selection board on 30.05.2007 on the basis of the decision of the syndicate on 26.5.2007 alone. It was found that the University had received the mark lists from the Secure Print on 09.11.2005. W.P(c).No.491/12 & conn.cases 101 The Upa Lok Ayukta found that there was no impediment in constituting the selection board in time despite the amendment effected by the University Laws Amendment Act since the nominated body could exercise powers of senate and syndicate. Further it was found that under statute 8 of Chapter II in Chapter IV of the University First statute, recruitments to posts are to be made on recommendation made by the selection board and the board can decide the test to be conducted for determining the suitability of candidates for appointment. It was found that the written test was not conducted by the selection board. It was further found that the fees mentioned in the notification was not fixed by the selection board as statute 8 provides that rate of fee has to be fixed by the selection board. Notification inviting applications could have been issued only after constitution of selection board. Similarly, the test to determine the suitability of candidates is to be conducted by the selection board and it is for the selection board to decide which are the posts necessary. Schedule to the University Ordinance 1978 provides under Sl.No.21 that the method of recruitment of Assistant Gr.II shall be by recruitment on the basis of competitive test and by interview by inviting applications by W.P(c).No.491/12 & conn.cases 102 advertisements. Since there was no selection board it was found that the written test and interview was conducted by those who did not have any authority. Under Section 10(16) it is for the Vice Chancellor to see that the proceedings of the University are carried on in accordance with the provisions of the Act, Statute, Ordinance, Regulations, Rules and Bye-laws and to report to the Chancellor every proceedings which is not in conformity with the provisions. But the Vice Chancellor without reporting any of the matter to the Chancellor allowed the proceedings to go on without constituting a selection board. Therefore, it was found that the entire process of selection was vitiated for which the 1st respondent was also responsible. It was further found that when the written test is to be conducted by the selection board, any other authority such as Vice Chancellor, Pro Vice Chancellor Registrar or any other officer of the University has no power to conduct the written test. It was found that the selection was not made in accordance with the statute and when statute prescribes a particular method, it has to be done by that method alone. It was pointed out that the findings in paragraph 61 were arrived at independently finding that the selection process was vitiated. In that background the Upa Lok Ayukta considered the question W.P(c).No.491/12 & conn.cases 103 and found that even if the allegations regarding favouritism, nepotism and political patronage were not established, still the selection process remained vitiated for want of selection board to conduct the selection. Further it was found that the selection process was vitiated by favouritism and nepotism. In paragraph 51 the Upa Lok Ayukta found that the allegation that some of the candidates were relatives of certain politicians and officers of University was baseless. It was found that it was not possible to presume that those candidates got appointment because of political patronage or because of the influence exerted by officers of the University.) The Upa Lok Ayukta concluded the findings in paragraph 63. It was further pointed out that the 1st respondent the complainant before the Upa Lok Ayukta had filed a counter affidavit in W.P(c).No.491 of 2012 producing Ext.R1(a) showing the position of the rank before and after interview along with details of the marks scored. It was pointed out that the difference of marks scored by rank Nos.1 and 2116 was 18 in the written test when the marks were awarded in 100. At the same time when it was scaled down to 75, the difference came down to 13.5 and this difference affected very seriously the candidates who would have got in the rank list, when high marks were W.P(c).No.491/12 & conn.cases 104 awarded in the interview to candidates with lower marks in the written test and they got the top position. Ext.R1(a) contains the list of about 41 candidates and it was pointed out that those who got marks between 85 and 78 were awarded marks in the interview between 11.2 and 6.6. Similarly, the first rank holder was having 82 marks in the written test and 6.6. marks in the interview. When the marks were scaled down to 75, 85 marks (out of 100) became 63.75 (out of 75) and 78 marks became 58.50.
69. Referring to the complaint (Ext.P3 in W.P.(C) 491 of 2012), it was pointed out that subsequent to the judgment of this court and the Sukumaran's committee report the complainant had amended the complaint incorporating all the possible contentions in paragraph 5A, paragraph 5B and paragraph 7A incorporating the table of candidates who were favoured by the malpractices adopted. It was stated that the candidate who got 50.25 marks which was the minimum, got more than 22 marks in the interview. A list of such candidates were given along with their affiliation to political party or relation to the officers of the University. Similarly, the details regarding the marks granted in handwriting test was also mentioned in paragraph 5B and it was W.P(c).No.491/12 & conn.cases 105 pointed out that when the cut off marks was fixed as 67 out of 100, several candidates who got 62 in the written examination were given full 5 marks for the handwriting test without any norms in order to give them a chance to appear in the interview. At the same time, several candidates were given `0' marks in the handwriting test when they were having high marks in the written test. Similarly, in paragraph 5A it was pointed out that Smt.Krishnambal had made the payment in full to the evaluation agency on the basis of the direction of the 3rd respondent and those charges were for evaluation, cargo and freight charges and the 3rd respondent had received it and it was further stated that the payment of Rs.12,25,997/- towards the balance amount was sanctioned when the Vice Chancellor was on leave. It was his case that the OMR sheets were purposefully concealed to suppress the manipulation.
70. Smt. D.P.Renu, the learned Standing Counsel for the Upa Lok Ayukta took me through the first report of the Upa Lok Ayukta and asserted that the finding of fact by the Upa Lok Ayukta in the first report was upheld by this Court, while directing to constitute the high power committee. The learned W.P(c).No.491/12 & conn.cases 106 Senior Counsel appearing for the petitioners raised objections pointing out that the Lok Ayukta is not expected to defend its orders, in the light of the judgment of the apex court in Kazi V Muslim Educational Society : 2016 (3) KLT 887(SC) Referring to the preamble of the Kerala Lok Ayukta Act, 1999, it was pointed out that the purpose of the enactment itself was to facilitate enquiries into any action (including any omission and commission) in connection with or arising out of such action relatable to matters specified in list II or list III of the 7th scheduled to the Constitution of India, taken by or on behalf of the Government of Kerala or certain public servants in the State of Kerala in certain cases and for matters connected therewith. From the statement of objects and reasons of the Act 8 of 1999, it can be seen that it is the policy of the State Government to eliminate corruption in public service seeing the necessity to strengthen the existing vigilance machinery in the State that the Government found it necessary to widen the ambit of the legislation by including all the Government servants, the members and persons in service of local authority, statutory, non statutory bodies and co-operative societies within the purview of the same. Government found that Kerala Public Men's W.P(c).No.491/12 & conn.cases 107 Corruption (Investigation and Enquires Act, 1987) was not sufficient to prevent effectively the corruption among public servants. The Lok Ayukta Act was brought about by way of a comprehensive new legislation for effective enquiry and investigation of complaints against public servants and matters connected therewith and auxiliary to it. According to her, all the findings in the first report are on the basis of materials and the Upa Lok Ayukta found that the entire process of selection was vitiated. Referring to Ext.P1 judgment of this Court it was argued that the finding of fact by the Upa Lok Ayukta has already been approved by this Court in paragraphs 25, 26 and 27 of the judgment. Regarding the powers of the Lok Ayukta, she referred to the judgments of this Court in Joy Kaitharath V State of Kerala & others: 2015 (2) KLT SN 20, M.P. Vincent V Shajan & others: 2015 (1) KLT 1012 and Commissioner of Police, Tvm and Ors. v. Abida Beevi and Anr: 2016 (2) KHC 537. In Joy Kaitharath's case (supra), the Division Bench of this Court was considering the case filed by a human right activist this Court considered the purpose of the enactment of Kerala Lok Ayukta Act, 1999 and various provisions contained therein,and the scheme of the Act, this Court observed that the W.P(c).No.491/12 & conn.cases 108 Kerala Lok Ayukta Act, 1999 is a complete code for enquiring allegation or grievance made by a person before the Kerala Lok Ayukta and it has all powers for investigation and enquiry and it can take all necessary action after submission of the report, in order to ensure that its recommendations are complied with including a declaration that public servant shall vacate the office. The Kerala Lok Ayukta is also fully empowered for initiation of prosecution after investigation of a complaint against public servant." Learned Standing Counsel further referred to the Division Bench judgment of this Court in Sreenivasan Venugopalan (Adv.) v. Justice M.M.Pareed Pillay (Rtd.) and Another[2009 (2) KHC 671] and argued that the report of the Lok Ayukta or Upa Lok Ayukta are not liable to be challenged except on grouund of jurisdiction. In Bright S. v. Chief Secretary to Government of Kerala and others [ILR 2016 (2) Kerala 1017] it was held that the Lok Ayukta has got the jurisdiction to consider a case whether there is mal administration and the act of inordinate delay in sanctioning pensionary benefits, in case it is unreasonable, unjust, oppressive or discriminatory it would be covered by the definition of mal administration and the same can be W.P(c).No.491/12 & conn.cases 109 investigated by the Lok Ayukta.
71. In Bright S. v. Chief Secretary to Government of Kerala and others [ILR 2016 (2) Kerala 1017] it was held that the Lok Ayukta has got the jurisdiction to consider a case whether there is mal administration and the act of inordinate delay in sanctioning pensionary benefits, in case it is unreasonable, unjust, oppressive or discriminatory it would be covered by the definition of mal administration and the same can be investigated by the Lok Ayukta.
72. According to the learned Standing Counel whenever there is an action involving maladministration, Lok Ayukta has every jurisdiction to entertain and proceed and take action on the complaint. It is not necessary that complaint should involve only a grievance, it can also be one involving allegation alone. Certain objections were raised with regard to non jointer of necessary parties saying that Government was not made a party. The learned Standing Counsel points out that a learned Single Judge of this Court has already considered that question in M.P.Vincent's case (supra) [2015 (1) KLT 1012), and in paragraph 18 of the judgment it was held that it is not W.P(c).No.491/12 & conn.cases 110 mandatory to have the State Government in the party array, when Government's interest is not involved,in view of the proviso to Section 9(8) of the Act.
73. Smt.D.P.Renu, relied on the judgment of the Supreme Court in Government of Andhra Pradesh Vs. District Co-op. Central Bank Ltd. [2003 (1) KLT 649], in which the Apex Court held that an employee of the Co-operative society will come under the definition of "public servant" under the Prevention of Corruption Act, . The Apex Court found that going by the objects behind the enactment, found that it was necessary in public interest to treat the employee of a Co-operative Society as a public servant and to bring him within the purview of the Prevention of Corruption Act. Similarly the judgment in Manish Trivedi Vs. State of Rajasthan [AIR 2014 SC 648] was also referred to wherein a councilor of the Municipality was held to be a public servant under the definition of the term in Prevention of Corruption Act. Therefore, it was argued that consistent with the intent and purpose of the Lok Ayukta Act, it was only proper that the members of the Syndicate are also brought under the purview of the definition of public servant. It was also pointed out that the judgment of this court which approved the action of W.P(c).No.491/12 & conn.cases 111 the Lok Ayukta as against the members of the Syndicate is not challenged by any of the petitioners. Sri.Gopalakrishna Kurup pointed out that the definition of public servant in Prevention of Corruption Act is wider in amplitude and a public servant under the Lok Ayukta Act cannot be considered on the same parameters.
74. It was pointed out that the Upa Lok Ayukta had sent a special report to the Government on 12.05.2013 and now there are 3 reports before this Court, first report of the Upa Lok Ayukta which was considered in Ext.P1 judgment, the report of the high power committee and the second report of the Upa Lok Ayukta which is under challenge in these writ petitions. The learned Counsel also pointed out that this Court had in its judgment dated 06.04.2011 in Writ Appeal No.452 of 2011 filed by 3 candidates who were in the rank list seeking appointment against the remaining vacancies, disposed of the writ appeal observing that in view of the prima facie finding by the Upa Lok Ayukta and the committee against the propriety and legality of the selection and appointments made, declined to grant any relief observing that this court should not perpetuate the W.P(c).No.491/12 & conn.cases 112 mistake or irregularity. Further it was directed that considering the grievous nature of the allegations, the Upa Lok Ayukta should consider the report of the committee, issue public notice through advertisement in news papers and proceed with the matter as also to finalise the same expeditiously. It was also made clear that Upa Lok Ayukta should consider initiation of action against those involved in perpetuating the illegality. However it was made clear that the observations were made without going through the findings in the order of the Upa Lok Ayukta or comments of the Committee.
W.P(c).No.37082 of 2007
75. The petitioner is a candidate who appeared in the written test. He was rank No.347 on the basis of the result in written test. The writ petition was filed on 02.12.2007. He appeared for the interview on 14.11.2007. According to him even before the interview was conducted, there were press reports to the effect that the selection committee had unilaterally changed the earlier marks fixed for written test and interview and he produced a news item which appeared in Mathrubhumi daily dated 27.10.2007 in which it was stated that the marks for W.P(c).No.491/12 & conn.cases 113 written test which was 100 was being reduced to 75 in order to enhance the interview mark from 20 to 25 and making the interview to 1/3 of the marks for written test giving scope for manipulation in the selection procedure. In that news report it was also stated that candidates who secured marks between 91- 64 were called for interview. According to him the interview which was conducted by 4 members of the syndicate and Vice Chancellor took less than 3 minutes and only casual questions were asked. It was alleged that 3 members of the board were active leaders of a political party and accordingly the norms were changed in order to select candidates of the same political ideology.
76. This Court had passed an interim order directing that appointments would be subject to the result of the writ petition and the candidates should be informed of the same and it was during the pendency of that writ petition that Upa Lok Ayukta placed its report in complaint no.572 of 2008 recommending cancellation of the selection and for initiating proceedings against the members of the selection board, the Vice Chancellor and Pro-Vice Chancellor, which was under challenge in various writ petitions leading to the judgment Ext.P1 (W.P(c). W.P(c).No.491/12 & conn.cases 114 No.491/2012) and that judgment was made an interim order in this case and the learned Judge while disposing of the other cases and retaining this writ petition made it clear that the proceedings before the Upa Lok Ayukta would be a relevant factor for final disposal of this writ petition and ordered that the candidates who got appointment shall not be granted promotion except after getting permission from this court. According to the petitioner, this court had already found malpractices on the basis of the findings rendered by the Upa Lok Ayukta and for the purpose of further elaborate consideration, it had directed constitution of a high power committee. Subsequent to the Lok Ayukta's order the writ petition was amended incorporating additional facts and grounds with respect to the manipulations and malpractices adopted in the selection. According to the petitioner, as per Ext.P5 letter of the Public Information Officer given on 22.11.2007 it was stated that appointments were to be made for 150 vacancies immediately. However, the marks for interview and norms for awarding marks were not disclosed by the Information Officer. However, in a press conference the Vice Chancellor stated that the total marks for the written test will be converted to 75 as against the original 100 and 25 marks would W.P(c).No.491/12 & conn.cases 115 be allotted for the interview. On coming to know about this the petitioner had submitted Ext.P6 on 14.07.2011 against the deviations from the procedure in the process of selection. Further it was pointed out that the answer key was published only after appointments were made and even that answer key contained at least 10 wrong answers. It was further pointed out that several candidates who had not submitted applications were included in the select list. The first 200 rank in the rank lists are kith and kin of high officials in the University, leaders of service organisations in the University and active workers of certain political parties. The University had appointed 177 candidates as per Ext.P8 order dated 18.06.2008. The petitioners produced the marks obtained by them in the written test and interview as well as their ranks in Ext.P9. It was further stated that the petitioner who was 347th rank in the written test was pushed down to 760 in the final rank list. Similarly, several candidates with lower ranks in the OMR test were given higher ranks after the interview. Sri Anand, the learned counsel appearing for the petitioner submits that the petitioner had approached this Court well before the rank list was published and immediately on the very next day of the interview, i.e on 2.12.2007. The rank list W.P(c).No.491/12 & conn.cases 116 was published only on 08.04.2007. Paragraph 38 of the judgment, which is the interim order in this case read with paragraph 13, 27 and 48 would show that the entire process of selection is liable to be set aside. Apart from that, paragraph xxxiv of the report of the Sukumaran Committee contained the findings regarding the marks awarded in the interview, the result of the scaling down in the absence of any decision in accordance with rules, etc. The learned counsel relied on the judgments of the Apex Court in K.Manjusree v. State of A.P [(2008) 3 SCC 512] in which the Apex Court held that the rules of the selection cannot be changed midway. In this case the scaling down was done in the midway. The learned counsel referred to the judgment of the Apex Court in Tej Prakash Pathak v. Rajasthan High Court [(2013) 4 SCC 540] in which the judgment in K.Manjusree'case case was doubted. However relying on paragraph 15 of the judgment it was pointed out that even while doubting the correctness of the judgment, the Apex Court held that there was no doubt that there cannot be any deviation from the rules once the selection process started. In this case, the missing of absentees' sheets, missing of laptop, etc. coupled with the fact that there was no selection board W.P(c).No.491/12 & conn.cases 117 constituted for the selection and the marks awarded to the candidates would show that the entire selection is liable to be set aside. The learned counsel also relied on the judgment of this court in Mohanan Pillai v. State of Kerala [2007(2) KLT 551 (SC);[(2007) 9 SCC 497] regarding the cut off marks and Bishnu Biswas v. Union of India [(2014) 5 SCC 774 .
77. Serious objections were raised against the petitioner's locus standi in pursuing the writ petition by the Counsel appearing for the selected candidates pointing out that he got appointment as Deputy Collector and he can no longer be an person interested or aggrieved by the impugned selection; the character of the writ petition itself is changed as a public interest litigation. It is settled law that there cannot be any public interest litigation in service matters. However Sri. Anand points out that the right of the parties are to be determined as on the date of filing of the writ petition and as a candidate who appeared for the selection he has got every right to see that the process of selection in which he appeared vitiated by malpractices is set aside and to see that fresh selection is made in accordance with law. It was further pointed out that this court decided to keep the writ petition pending, on being W.P(c).No.491/12 & conn.cases 118 convinced of the infirmity in the selection.
78. It was pointed out by the learned Counsel appearing for the selected candidates that the petitioner in W.P(c). No.37082 of 2007 was examined before the Upa Lok Ayukta. Even though several allegations were raised in the writ petition as to the infirmities in the selection, the petitioner could not pin point any candidate who got such favour. There is no material to substantiate that the alleged infirmities occurred on account of any contribution from any of the candidates or they were parties to the alleged infirmities. The writ petition was originally filed against the University, the Vice Chancellor and the Kerala Lok Ayukta. Subsequently innumerable persons have been impleaded, apart from the candidates, the Pro Vice Chancellor is also seen impleaded. But the members of the syndicate or the selection board are not seen impleaded in this writ petition. When the petitioner is challenging the process of selection alleging favouritism, nepotism, etc., on the part of the selection board, it is quite appropriate that they should also be included in the party array.
79. The University had in the counter affidavit denied the fact that interview was conducted for 150 vacancies, pointing out W.P(c).No.491/12 & conn.cases 119 that the notification had not specified any number of vacancies and at the time of commencement of the interview, 378 vacancies were there and it was therefore decided to call 5 times the number of vacancies. Accordingly, the candidates who scored marks between 85 to 65 in the written test were shortlisted. It was stated that the interview was conducted in 2 sessions of 4 hours every day and an average of 40 candidates were interviewed each day. Even though the OMR scripts were not available, it was stated that the results were available in the C.D and hard disc made available by the outside agency.
80. The deposition of the petitioner before the Upa Lok Ayukta, where he was examined as RW8 is produced as Ext.R69
(b). Before the Upa Lok Ayukta he deposed that interview took 4 to 5 minutes, but it was confined to questions unrelated to the post and the petitioner himself had deposed that he was asked about the public health and safety measures. He had deposed that the interview lasted for 10-15 minutes in the case of all candidates.
81. In the counter affidavits filed by the candidates it is stated that several candidates who were alleged to have been favoured have not joined duty or they have got employment in W.P(c).No.491/12 & conn.cases 120 higher posts and that almost all the candidates are persons having high academic qualifications. Some of the candidates have filed additional counter affidavits/counter affidavits subsequent to the second report of the Upa Lok Ayukta. In the additional counter affidavit filed by the 172nd additional respondent it was stated that the wrong questions/wrong answers found out by the high power committee would not have in any manner affected the petitioner, since there would have been only a difference of 4 marks, as he had already got 2 marks for the wrong answers and 2 marks for the questions for which all the options were wrong. Regarding the scaling down of marks also it is stated that the petitioner who was assigned rank no.716 would have come to the position of 619, in case there was no scaling down. However, since he is a candidate belonging to open merit, candidates upto 136 alone would have got appointment from the advice list of open merit candidates.
82. The petitioner's allegation is that there is no rule for fixing marks for interview as 33.3% of the written test and that by fixing the marks for interview at 25 and written test at 75, the marks for interview exceeded the permissible limits. The finding of the Upa Lok Ayukta also is that 33.3% marks in the interview W.P(c).No.491/12 & conn.cases 121 is not admissible. But the percentage of marks is to be taken with reference to the entire marks and not with respect to the written test. In the notification there was no allocation of marks for written test and interview. The University had followed a procedure by scaling down the marks, as was done in the year 1992, apparently on the basis of a note given to the selection board by the Registrar. It is also seen that no decision was taken to enhance the marks allocated for the interview. Decision was only with respect to the marks of written test, though there would be a change in the percentage of marks allocated for interview in the selection.
83. Relying on the judgments of the Apex Court in Dr. Duryodhan Sahu and others Vs Dr. Jithendra kumar Mishra and others: [(1998) 7 SCC 273], Dattaraj Nathuji Thaware and others: [(2005) 1 SCC 590] and Jaleel P.P V Muralikrishnan P.K and of this court in Jaleel T.P v. T.K.Muralikrishnan & Ors. [ILR 2014 (1) Ker 894], Senior Adv. Sri. Shaji asserted that the petitioner has no locus standi to pursue the writ petition since he is no longer an aggrieved party and he cannot be said to have any interest in the selection for appointment in the university when he has already joined as W.P(c).No.491/12 & conn.cases 122 Deputy Collector. It is settled law that there cannot be any public interest writ petitions in service matters.
84. Sri. Gopalakrishna Kurup argued that even though the petitioner was having the benefit of all the depositions before the Lok Ayukta, the Sukumaran Commission etc. when he was examined as RW8 in the complaint No.572 of 2008, what he deposed was that questions were put to him by the selection board relating to the stream in which he completed MSW in the University of Kerala. His deposition is produced as Ext.R69(b). At any rate, he could not produce any material to show that any candidate got appointment on the basis of any affinity towards any officer. Sri T.A.Shaji relying on the judgment of this court in Swapna Surendran V Union of India & others: ILR 2016 (1) Ker 262, argued that awarding even 40% marks to interview that too repelling the contention that interview was held changing the rule of the game, was upheld by this court. In that case it was also noticed that rank no.1 had not joined duty, while ruling out the contention as to the selection process being vitiated by nepotism and arbitrariness.
W.P(c).No.11937 of 2011
85. No arguments were addressed on behalf of the W.P(c).No.491/12 & conn.cases 123 petitioner in this case. The petitioner herein approached this court in April, 2011 challenging the rank list published by the University on 18.6.2008, challenging the percentage of marks allocated for interview and also challenging the selection made on the basis of the rank list. The petitioner was a candidate who appeared in the interview in November, 2007. In the rank list published, he was ranked 553. According to him, he had approached the University requesting for scrutiny of the OMR answer scripts and the 2nd respondent was not ready for the same. It is the further case of the petitioner that the Upa Lok Ayukta has considered the complaint as against the selection and it recommended cancellation of the same which was challenged before this court in a series of writ petitions and this court had appointed Sukumaran committee.
86. A perusal of the writ petition would reveal that the petitioner was remaining silent all these years and he has chosen to file this writ petition only 3 years after appointments were made on the basis of the rank list. No explanation is furnished by the petitioner for not approaching the court and challenging the selection, except by saying that the selection was already challenged by similarly placed persons and he filed this writ W.P(c).No.491/12 & conn.cases 124 petition, in order to bring to the notice of the court the later developments,
87. As rightly contented by Dr.K.P.Pradeep relying on the judgment of the Apex Court in Delhi Administration & Ors. v. Kaushilya Thakur & Anr. [AIR 2012 SC 2515], the case of the petitioner does not merit consideration by this court under Article 226 of the Constituion of India. It was a case where an application was submitted after 10 years of awarding compensation towards acquisition of land and the application was rejected saying that he was not the owner of the land. Seeing that the High Court had granted reliefs in a writ petition filed after 4 years of rejection of an application, the apex court deprecated the same observing that making further representations cannot be a ground for ignoring the delay of more than 3 years. Similarly in State of M.P v. Bhalilal Bhai:
[1964 SC 1006], while considering a case relating to sales tax the Apex Court held that even though the provisions of Limitation Act cannot as such apply in granting relief under article 226, the maximum period fixed by the legislature for seeking relief by a suit in a civil court is taken as a reasonable standard in seeking remedy under Article 226. The Supreme W.P(c).No.491/12 & conn.cases 125 Court in Chennai Metropolitan Water Supply & Sewerage Board & others V T. T. Murali: 2014 SC 1141 also considered a case where there was 4 years' delay in challenging dismissal from service and it was held that delay cannot be ignored without any justification and the doctrine of delay should not be rightly brushed aside while exercising an extraordinary and equitable jurisdiction and relief should be denied to a person who choses to approach at his own leisure and pleasure.
88. Sri. Thomas Abraham, the learned Standing Counsel for the University, referring to the counter affidavits filed before the various authorities and before this court stated that the nominated syndicate and elected syndicate were not having any common affiliation to the same political party. Further it was pointed out that the University has only adopted the procedure which was followed in earlier case also. In the selection conducted in the year 1992 for appointment to the post of Assistants, written test was held for 150 marks. The mark for interview was 25. The marks in the written test were scaled down to 75 and the selection was conducted on the basis of the total marks of 100 for written test and interview. The learned counsel referred to the note given by the Registrar to the W.P(c).No.491/12 & conn.cases 126 selection board on 5.6.2007, which was produced as Ext.R2(18), in which the procedure adopted for the previous selection was mentioned. According to the learned Counsel the University had conducted the selection in accordance with law. Pointing out the counter affidavits filed, it was contended that the University had conducted the selection properly. It was also pointed out that the University had constituted a committee to inquire into the missing of the OMR answer scripts. That committee found that the OMR answer scripts had not reached the University.
89. Sri Gopalakrishna Kurup, the learned Senior Counsel, in reply to the contentions raised by the learned counsel who appeared for the complainant and the petitioner in W.P).No.37082 of 2007 reiterated that the recommendation for cancelling the selection was unwarranted. Referring to the order passed by the Lok Ayukta on 19.09.2008 subsequent to Ext P1 judgment of this court, it was pointed out that Sri M.V.Srinivasa Rao, Engineer, Technical Services, Secure Prints Pvt. Ltd. had appeared before the Upa Lok Ayukata in obedience to the summons issued by it and produced (1) hard disc containing software, computer data base OMR sheets, scanned data, answer key, result data, (2) Soft copy (CD) consisting of W.P(c).No.491/12 & conn.cases 127 result data, hard copy etc. Printouts of answer script forms, OMR form by the scanner was also produced. In the letter addressed to the Upa Lok Ayukta by the Secure Prints Pvt. Ltd. it was stated that they were producing the documents connected with the valuation of OMR answer scripts of the written examination conducted by the University in 2005, which contained the hard disc, soft copy, hard copy of entire evaluation procedure, printouts of answers recognized from OMR forms by scanner, hard copy of answer key and hard copy of results with rank. Referring to Annexure A13 of the report of the Sukumaran committee and the C.D analysis report by a member of the committee Sri Vishnuram, Technical Expert, it was pointed out that after analysis of the data, the expert examined 5 C.Ds provided from the University. Out of the C.Ds, C.D 4 contained the OMR scanned data, visual basis program and data base answer keys and processed results. He had examined 3 C.Ds obtained from the outside agency and it was found that the C.D thus obtained from the outside agency was the same as C.D 4 provided from the University, i.e the OMR scanned data contained in C.D 4 supplied by the University was the very same as the one contained in C.D6 of the outside agency. Similarly, W.P(c).No.491/12 & conn.cases 128 C.D7 supplied by the outside agency was found to be same as that of C.D 1 relating to question papers, answer keys etc. He had given the findings to the effect that the OMR results contained in C.D provided by the University and the outside agency are the same. It was also found that the OMR results retrieved from Vice Chancellor's computer matched with the C.Ds produced by the outside agency. Referring to the findings of the expert, it was pointed out that a mere finding as to missing of OMR sheets did not have any relevance when all the datas were found to tally with each other. The expert also explained the verification done by him with respect to the scanned OMR data. Annexure-A14 of the Commission's report provided for the report of computer analysis. The expert collected the data from the computer of the Vice Chancellor and entire disc image of the hard disc was collected to a USB hard disc for recovering deleted files. The expert did not find any tabulation errors. The basis image analysis was done in order to recover deleted files and check for any malpractices which could have occurred during the preparation of rank list. On an analysis of the disc image the expert could not find any evidence for malpractices in the recovered deleted files. Before the Upa Lok Ayukta also an W.P(c).No.491/12 & conn.cases 129 expert Dr. Lijish, Head of the Department of Computer Science, Calicut University, compared the CDs and did not find any manipulations. The expert member of the High Power Committee had given the list of 12 candidates who could have been in the top 200 in case the written test marks were not reduced to 75%. Referring to the marks scored by the candidates and the scaling down it was pointed out that all the members of the selection board had awarded marks in the interview. It was pointed out that out of those 12 candidates 2 of them were already appointed. Referring to the candidates included in the list of 33 candidates who, according to the complainant, got high marks in the interview and poor marks in the written test, the learned senior counsel pointed out that Smt.Razina.S who was awarded 22.8 marks and got 50.25 marks out of 75 in the written test had passed B.Sc Zoology with 86% marks, M.Sc with 75%, B.Ed with 87.6% with first rank, M.Ed with second rank with 82% and had passed NET, JRF and SET and she was having Diploma in Computer Management also. She was a Lecturer in General Education in the University College of Computer Education. Referring to the case of Sri.Abhilash who was rank No.148 it was pointed out that he was a B.Tech holder in Mechanical W.P(c).No.491/12 & conn.cases 130 Engineering who was working as a Junior Accountant in Treasury for 2= years when he got appointment. Rank Nos.5,9,13,14, 22,23,51,56, 57, 67, 75, 94, 95,111,163,170,336,402,449,551 etc. had already got employment elsewhere. Similarly it was pointed out that out of the candidates who were awarded 22 and above marks in the interview and having marks 51 and 50.25 in the written test were not advised for appointment. According to the learned Senior Counsel, the marks before and after scaling down did not make much difference.
90. Similarly, just because certain persons got higher marks in the interview and they happened to get into the top of the rank list that will not make the selection illegal. Referring to Ext.P10 produced along with reply affidavit, Sri. Shaji, the learned senior counsel pointed out that there was no deliberate attempt to favour anybody and no complaint was filed by any candidates against the results of the written test and there was no complaint as against the answer key also. The learned senior counsel also pointed out the effect of the scaling down according to which, only 12 persons need go out of the rank list and even they can be accommodated against the vacancy which were W.P(c).No.491/12 & conn.cases 131 available.
91. Regarding the applicability of the Act to the members of the selection Board, Adv Shaji pointed out the difference in the definition of public servant occurring in section 2(o)(v) and 2
(o)(vii)(F). When the sub clause v provides that a Chairman and Vice Chairman or a member of a statutory body established by or under any law of the State Legislature comes within the definition of public servant, clause vii provides that a person in service of pay of (A) local authority in the State (B) a statutory body or the Corporation, (C) a company registered under the Companies Act, 1956 (D) a society registered under the Travancore Co-operative Banking Societies Act (E) Cooperative Society and (F) University, will come under the definition of `public servant'. When statutory body is covered by sub clause (B) and University is covered by sub clause (F) in 2(o)(vii), the absence of University in clause 2(o)(v) will indicate that the Chairman, Vice Chairman or all such other persons of the University or attached to the University will not come under the definition of public servant. It is argued that when the very same provision considers University as one included under the term `statutory body', the finding of the Upa Lok Ayukta that W.P(c).No.491/12 & conn.cases 132 respondents 1 to 3 and 10 to 13 are public servants is not sustainable. Moreover, in the explanation below clause (o), it is explained that the University means, the university established by or under any law of the State of Kerala.
92. Sri.T.R.Ravi pointed out that the statutory body mentioned in Section 2(o) (v) takes in the statutory bodies under the laws of the State whereas the statutory body under Section 2 (O)(vii)(B) takes in only those statutory bodies by or under the control of the State Government and therefore the separate inclusion of University in Section 2(O)(vii) (F) cannot be interpreted to mean that the University is not included under the term statutory body.
93. Referring to Ext.P10 produced along with reply affidavit, the learned senior counsel pointed out that there was no deliberate attempt to favour anybody and no complaint was filed by any candidates against the results of the written test and there was no complaint as against the answer key also. The learned senior counsel also pointed out the effect of the scaling down according to which, only 12 persons need go out of the rank list and even they can be accommodated against the vacancy which were available.
W.P(c).No.491/12 & conn.cases 133
94. The learned senior counsel also pointed out that the difference in the definition of public servant occurring in section 2(vii)(F) and that in Section 2(o)(v) requires consideration. When the sub clause (v) of Section 2(o) provides that a Chairman and Vice Chairman or a member of a statutory body established by or under any law of the State Legislature comes within the definition of public servant, clause (viii) of Section 2(o) provides that a person in service of pay of (A) local authority in the State (B) a statutory body or the Corporation, (C) a company registered under the Companies Act, 1956 (D) a society registered under the Travancore Co-operative Banking Societies Act (E) Cooperative Society and (F) a University, will come under the definition of `public servant'. Since the statutory body is provided for in sub clause (B) and University is provided for in sub clause (F) separately, the absence of University in clause (v) will indicate that the Vice Chancellor, Members of syndicate or any other person attached to the University will not come under the definition of public servant. It is argued that when the very same provision considers University as one included under the term `statutory body', the finding of the Upa Lok Ayukta that respondents 1 to 3 and 10 to 13 are public servants is not W.P(c).No.491/12 & conn.cases 134 sustainable. Moreover, in the explanation below clause (o), it is explained that the University means, the university established by or under any law of the State of Kerala.
95. According to Sri.T.R.Ravi, the statutory body mentioned in Section 2 (v) takes in the statutory bodies under the laws of the State whereas the statutory body under Section 2 (O)(vii)(b) takes in only those statutory bodies by or under the control of the State Government and therefore the separate inclusion of University in Section 2(O) cannot be interpreted to mean that the University is not included under the term statutory body. It was also pointed out that the members of syndicate were included in the definition of public servant in the Public Servants Corruption Act, 1987; whereas they are not included in the Lok Ayukta Act enacted subsequently and that itself shows that they were not entitled to be included under it.
96. On meticulous consideration of the pleadings, the contentions raised on behalf of either parties as explained above and the relevant records, the first question to be examined is the scope of interference by this court under Article 226 of the Constitution of India, over the findings and the report of the Upa Lok Ayukta. It is admitted on all sides that this court cannot re- W.P(c).No.491/12 & conn.cases 135 appreciate the evidence adduced before the Upa Lok Ayukta. Of course if the findings are perverse or arbitrary, or contrary to statutory provisions, interference is warranted. It is also settled law that any finding of an authority should be supported by materials as well as reasons and application of mind. In Indian Airlines Ltd. v. Prabha D. Kanan [(2006) 11 SCC 67], the Apex Court held that in a case where no appeal is provided for, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not confine its jurisdiction only to the known tests laid down viz. illegality, irrationality, procedural impropriety; it would require a deeper scrutiny. In paragraph 46 and 47 of the judgment, it was held as follows:
"46. We may notice that keeping in view the situational changes and, particularly, outsourcing of the sovereign activities by the State, this Court has been expanding the scope of judicial review. It includes the misdirection in law, posing a wrong question or irrelevant question and failure to consider relevant question. On certain grounds judicial review on facts is also maintainable. Doctrine of unreasonableness has now given way to doctrine of proportionality.
47. In S.N. Chandrashekar v. State of Karnataka: (2006) 3 SCC 208 this Court observed: (SCC pp. 221-22, paras 33-35) "33. It is now well known that the concept of error of law includes the giving of reasons that are bad in law or (where there is a duty to give reason) inconsistent, unintelligible or substantially inadequate. (See de Smith's Judicial Review of Administrative Action, 5th Edn., p.
286.)"
Therefore this Court can under Article 226 of the Constitution of India, interfere if the findings are perverse, arbitrary, on no W.P(c).No.491/12 & conn.cases 136 evidence, contrary to statutory rules or vitiated by non- application of mind, rendered merely on surmises and conjectures or without considering crucial materials or when the findings are inconsistent. It can also have a deeper scrutiny of the impugned action in a case where there is no statutory remedy.
97. It is pertinent to note that the whole issue arises out of the missing of answer sheets. In view of the missing of OMR answer sheets, the Upa Lok Ayukta accepted the complainant's case that the OMR sheets were concealed in order to manipulate the marks in written test. It has also accepted the case of the complainant that marks were scaled down from 100 to 75 in order to bring candidates of choice with low marks in the written test to the top of the rank list and that the absence of norms for awarding marks in interview also enabled such candidates to come in the top. It further found substance in the contention of the complainant that there was manipulation in the marks in the written test since the OMR scripts were sent to the valuation agency along with the part which contains the personal details of the candidate, without keeping it in the University office whereby it was possible to manipulate marks and defeat the W.P(c).No.491/12 & conn.cases 137 confidentiality of the OMR examination. Therefore, it concluded that "there is some force in the submission of the complainant". It was stated that the soft copy and the hard copy were sent back to the 3rd respondent along with the result sheet in the year 2005. The case of the complainant was that the publication of short list was delayed for carrying out the manipulations and OMR sheets are concealed or destroyed in order to conceal the manipulation carried out in the written test. Thus the infirmities are found in both parts of the selection, i.e against that part of the selection conducted during the tenure of the nominated body of syndicate and during the tenure of elected body of syndicate. Complainant's case is that all these are to facilitate illegal appointments, i.e appointment of persons of choice. The Upa Lok Ayukta finds that it was the officers who invited applications and conducted the written test. But from the minutes of the meetings it is clear that the selection was conducted in execution of the duly nominated body of syndicate itself. Even though no political patronage or influence by top officials or personalities were found, Upa Lok Ayukta, held that these circumstances were sufficient to show that the selection was vitiated, right from the commencement without a selection board, contrary to the W.P(c).No.491/12 & conn.cases 138 provisions contained in the statutes that the selection was vitiated. Further despite the examination by technical member of the committee Sri Vishnuram, who verified the computer used for tabulation work and did the disc image analysis and furnished A14 series of records, did not find any malpractices during the preparation of rank list. The Upa Lok Ayukta found that the complaint of the complainant was that the C.Ds produced were manipulated. Apart from the expert in the committee who verified and ruled out malpractices adopting the image analysis system, disc image analysis another expert was examined before the Upa Lok Ayukta who was the head of the Department of the Computer Science who also reported that the contents of C.Ds and all the documents were tallying. In para.53, the Upa Lok Ayukta finds that the complainant had a case that the C.Ds itself were manipulated and the personal laptop of the Vice Chancellor was missing saying that the rank list was prepared in the personal laptop of the Vice Chancellor. At the same time, Upa Lok Ayukta also noticed that the 2nd respondent's version was that the rank list was prepared in the official computer of the Vice Chancellor. However, Upa Lok Ayukta arrived at a finding that since the Vice Chancellor did not W.P(c).No.491/12 & conn.cases 139 give back the laptop saying that it was missing, there was circumstances for weighing the allegation of the complainant. Further it was found that apart from the missing of the OMR sheets the absentee list in one centre which was to be prepared by the invigilator and to be handed over to the University was also missing and all these 3 missings were found to be conclusive proof in para.54, for the malpractice, favouritism and nepotism shown by respondents 1, 3 and 10 to 13 in preparing the rank list. It is in this background that contentions were raised against the findings of the Committee and Upa Lok Ayukta.
98. The contentions against the reports are in effect (1) the findings of Upa Lokayukta are inconsistent and perverse; (2) Upa Lok Ayukta traversed its jurisdiction in going into the merits of selection process breaking the barrier under Section 8(2) read with clause (d) of schedule II of the Lok Ayukta Act i.e. while considering a complaint involving allegations, Lok Ayukta cannot go into the irregularities in the selection; (3) in the absence of any finding against any of the respondents in the complaint (officers of University and members of selection board qua any of the candidates the recommendation to cancel the selection is unwarranted (4) in the absence of any finding as to any personal W.P(c).No.491/12 & conn.cases 140 gain or oblique motive on the part of the respondents in the complaint with specific finding of the candidate involved, no recommendation can be made to take action against them (5) Members of selection board/syndicate are not public servants (6) there is no competent authority prescribed under rules for the members of syndicate (7) findings against Dr. Jayaprakash (3rd respondent in the complaint are based on no evidence and on irrelevant materials; (8) even after finding that there is no direct evidence, findings are rendered on the basis of circumstances and suspicion; (9) the opinion of experts including even the member of the committee are not given weight without considering the evidentiary value of electronic records and expert evidence; (10) even assuming that findings rendered against the infirmities in the selection are correct, there is no reason for cancellation of selection, etc.
99. In this case the very basis for the recommendations of the Upa Lok Ayukta to cancel the selection is the missing of OMR answer scripts. The High Power Committee found that there is no direct evidence as to the dispatch or receipt of OMR answer scripts from the Secure Prints to the University. Upa Lok Ayukta concluded that it is quite possible that the 3rd respondent-Dr. W.P(c).No.491/12 & conn.cases 141 Jayaprakash, has received the OMR answer scripts, relying on circumstances and mainly because other records relating to written test were stated to be sent from evaluation agency-the Secure Prints Ltd in his address. There is no allegation in the complaint that the 3rd respondent had any oblique motive behind the concealing or destruction of the answer scripts. There is no finding also as to the motive behind the said missing or concealing or destruction either for Dr.Jayaprakash or anybody in the selection board. The committee or the Upa Lok Ayukta could not find out any of the candidates included in the 'lists of favoured' furnished in the complaint, did receive any benefit or favour as alleged. The complainant's case was that the OMR answer scripts were concealed in order to see that the manipulations carried out in the marks are not divulged. But the complainant could not establish who was the beneficiary of such manipulation if at all carried out. It was found violative of statute 8, Part II of chapter IV of Kerala University Statutes, for not constituting a selection board before commencement of selection; It further found respondents 1,3 and 10 to 13 in the complaint manipulated marks in written examination and respondents 1 and 3 concealed/destructed answer sheets in W.P(c).No.491/12 & conn.cases 142 order to conceal manipulation; selection board did not conduct proper interview to help candidates of their choice.
100. The High Power Committee found that the selection was vitiated for (i) non constitution of selection Board prior to commencement of selection in violation of statute 8; irrational award of marks in handwriting test (3) improper standard of procedure adopted in awarding marks in interview (4) irregular, indisciplined and improper conduct of interview (5) defective question paper and answer key (6) delayed publication of answer key. It found that mark sheets and CDs cannot be relied on, in the absence of OMR sheets. High Power committee also found that the respondents 1 and 3 were responsible for the missing of answer sheets. Malpractices were found in sending both halves of OMR answer scripts to the evaluation agency; scaling down of marks in written test from 100 to 75; large number of candidates in the short list; excessive percentage of marks in interview; All these are alleged to have been done for favouring candidates of choice to get them included in the top of the rank list.
101. Thus the High Power committee as well as the Upa Lok Ayukta found that the commencement of selection without constituting the selection Board vitiated the entire process of W.P(c).No.491/12 & conn.cases 143 selection.I shall therefore consider whether there was violation of Statute 8 and if at all there was violation should it entail in cancellation of selection.
102. The recruitment of non-teaching staff is to be made by a selection Board as per the provisions contained in Statute 8 of Part II, Chapter IV of University First Statutes, 1977, relevant portion of which reads as follows:
"Recruitment to posts shall be made on the basis of recommendations made by a selection Board consisting of Vice Chancellor as Chairman, Convenor of Standing Committee on Syndicate on Staff, Equipment and buildings, Convenor of the Standing Committee on Finance and 2 Syndicate members to be nominated by the Vice Chancellor. Registrar shall be Secretary to the Board. The Board may conduct such tests as are deemed necessary, to determine the suitability of the candidates for appointment. It may also fix the rate of fee for admission to the tests.xxxxxx"
In this case it was the nominated body which took the decision. It is true that selection board as such was not constituted. However, what is required under statute 8 is that decision regarding the selection has to be taken by the selection board. The interim body, which was nominated in terms of Section 8(2) of the University Laws Amendment Ordinance, 2005, to exercise all the powers and functions of the senate and syndicate of the University of Kerala, consisted of: the Vice Chancellor, Pro Vice- Chancellor, Secretary to Government, Higher Education Department or an officer nominated by him not below the rank of W.P(c).No.491/12 & conn.cases 144 a Joint Secretary, Director of Education, Director of Collegiate Education and the Secretary to Government, Information and Technology Department or an officer of that department not below the rank of Joint Secretary nominated by him. Along with that 6 persons nominated, one representative of legislature assembly, a Government College teacher belonging to Scheduled Caste community, a member of an Aided College, a teacher representative of affiliated aided colleges, a teacher representative of University and Chairman of Kerala University Wing. The Convenor of Standing Committee on Syndicate on Staff, Equipment and buildings and Convenor of the Standing Committee on Finance are those selected from among the members of the syndicate. In this case the decision to conduct selection was taken by the nominated body which consisted of all the members who could become members of selection board, in its meeting held on 2.2.2005 as item no.14. Another meeting was held on 23.2.2005, in which the further proceedings for selection was considered and decided. When the entire nominated body takes a decision in respect of the selection and that body is inclusive of all those who should constitute the selection board, it cannot be said that there is any infirmity. Syndicate members W.P(c).No.491/12 & conn.cases 145 alone can become the convenors of both the standing committees. Instead of 5 members, there were more members- all of the nominated when it decided to conduct the selection for appointment. Therefore non constitution of a selection board cannot entail cancellation of the selection. At the most it can be an irregularity, that cannot be termed as an illegality, on account of the presence of more number of persons in the selection board. The larger body was not short of any of the personnels of the syndicate provided in statute 8. The decisions to conduct selection was made by the nominated body. At any rate, the decision to invite applications for selection and for conducting a written test including the handwriting test were taken and implemented by the nominated body of syndicate which comprises all those members who are to be included in the selection board. That is the entire body of the syndicate in power functioned as the selection board.
103. The judgment of this Court in Mary v. Kuzhur Service Co operative Bank Ltd. [2006(1) KLT 323], is also relevant in this context where this court, app applying the doctrine of necessity, upheld the punishment awarded by the Administrator repelling the contention that it was in violation of W.P(c).No.491/12 & conn.cases 146 Rule 198 of the Co-operative Rules, according to which, dismissal has to be imposed by the disciplinary sub committee. Referring to the judgments in Election Commission of India and another v. Dr. Subramanyam Swamy and Anr. [(1996) 4 SCC 104 and J.Mohapatra & Co. & Anr. v. State of Orissa & Anr. [(1984) 4 SCC 103], this court found that the administrator was very well in his powers to initiate disciplinary proceedings and to impose punishment, in the absence of a committee in power. In these circumstances, I find that the findings of the High Power Committee as well as that of the Upa Lok Ayukta that non- constitution of selection board before the the commencement of selection process vitiated the entire selection cannot be correct. In this view of the matter, there is no violation of Statute 8 and hence findings (1) and (2) of the Upa Lok Ayukta are not on correct interpretation of the provisions and hence are liable to be reversed.
104. The next issue to be considered is whether the selection is vitiated by favouritism, nepotism, irregularities and illegalities, as found by the Upa Lok Ayukta in finding no.2. There is no finding either by the Upa Lok Ayukta that any particular candidate was favoured by any particular respondent W.P(c).No.491/12 & conn.cases 147 in the complaint. Even though several lists of favoured candidates were furnished in the complaint, the complainant failed to substantiate the favouritism by any of the respondents qua any of the candidates. In paragraph 51 of the report, the Upa Lok Ayukta ruled out the allegations as to the inclusion of the candidates mentioned in the list on the ground of political patronage or because of association with high profile officers or politicians, stating as follows:
"There is nothing uncommon in the relatives of political leaders and neighbors and relatives of somebody working in office getting appointment in various departments. In such cases it is not possible to presume that such candidates got appointment because of political patronage. In the absence of evidence to show that there was political influence or influence by high profile personalities it is not possible to say that there was political patronage to some of the candidates who got selection."
Thereafter in paragraph 61, it found as follows:
"Even if the allegations regarding the favouritism, and political patronage are not established, the selection process was vitiated for the reason that Selection Board was not constituted in time and that inviting application, conducting examination and valuation of answer sheets which were expected to be done by the selection board were actually done by the officers of the university who had no authority to do that. Moreover the circumstances available in this case which had already been discussed would clearly prove that the selection process was vitiated by favouritism and nepotism."
Therefore, it is after finding that the allegations of political patronage and favouritism were not established that the Upa Lok Ayukta proceeded to rely on the circumstances and the aforesaid irregularities in the selection in order to bring it within its W.P(c).No.491/12 & conn.cases 148 jurisdiction by describing the selection as vitiated by favouritism and nepotism, which are the ingriedients to constitute an allegation. The Upa Lok Ayukta found that the selection proceedings were vitiated by favouritism, nepotism, irregularities and illegalities; As rightly pointed out by Adv. Reghuraj the dictionary meaning of nepotism is favouritism shown to relatives. A reading of paragraph 61 of the report along with paragraph 51, would reveal the inconsistency in these findings. It will also be clear that the attempt was to bring the matter under the purview of Section 2(b). The fact that there is no illegality is already found. The finding that selection is vitiated by favouritism, nepotism, and illegalities can only be found as inconsistent and perverse. However it cannot be disputed that there were irregularities. The question whether those irregularities can be a ground for recommending cancellation will be considered later.
105. Finding no.4 and 5 of the report relate to manipulation of marks in written examination and concealing of the OMR answer scripts by respondents 1 and 3. It is a fact that the OMR sheets could not be traced out by anybody including the High Power Committe. High Power Committee which was W.P(c).No.491/12 & conn.cases 149 specifically constituted for this purpose found that the fate of the the OMR sheets could not be traced out. There is no direct evidence to come to a conclusion that the valued answer scripts were either dispatched or delivered from the evaluation agency to the University or it reached the 3rd respondent. It is only on the basis of the contentions of the complainant that the Upa Lok Ayukta arrived at findings on the basis of circumstances or possibilities. The expert witnesses including the expert member of the Committee could not find any tampering with the electronic records. As contended by Adv.S.V.Rajan, the electronic record of OMR sheet is to be recognized under Section 4 of the I.T Act in the light of Section 45A, 65A and 65, when experts have not reported tampering. Neither the Upa Lok Ayukta nor the High Power Committee found any evidence as to the manipulation in the marks in written test. Upa Lok Ayukta only found that the complainant's contentions merited consideration merely because the OMR answer scripts were missing and therefore it could not be verified. High Power Committee also found that it was not possible to verify the correctness of marks except on comparison with the original answer scripts despite the unanimous opinion of the experts who W.P(c).No.491/12 & conn.cases 150 were examined. Since both halves of the OMR sheets one containing the identity of candidates and the other containing the answers were sent to the evaluation agency, it was found possible to manipulate the marks in written test. But it is to be noted that the answer scripts were sent for valuation in the year 2005, when the nominated body of syndicate was in power. The scaling down and interview were done in the year 2007 by the elected body. Nobody has a case that the nominated body as well as the elected body were having any common ideology or oblique motive or that both those bodies acted with the same oblique motive to help the candidates of choice of the respondents 3 to 13 and therefore right from 2005 they acted in furtherance of this. In fact both these bodies are stated to be having diametrically opposite ideologies. There is not even a remote suggestion or suspicion caste on any particular candidate who was benefitted by the manipulation or who among the respondents caused such manipulation and for what purpose. In this back ground there is absolutely no basis for the finding of the Upa Lok Ayukta, which is made, merely giving credence to the version of complainant. The Upa Lok Ayukta found only a possibility that the 3rd respondent has received the OMR answer W.P(c).No.491/12 & conn.cases 151 scripts. When the answer scripts are not received, there is no question of concealing it or destroying it. Assuming that it is withheld or concealed it is not even suggested why and how the 3rd respondent or any of the respondents is interested in the manipulation or destruction of the answer scripts and as to the real beneficiary out of such manipulation. The question of witholding or concealing the answer scripts is different from the responsibility of the officers to make inquiries as to the answer scripts sent for evaluation. Therefore there is no basis for the finding no. 4 and 5 that they manipulated marks in written test and therefore concealed the OMR answer scripts in order to see that it is not detected. However their responsibility to ensure the custody and maintenance of the answer scripts cannot be in any way lighter.
106. Finding no.6 of the Upa Lok Ayukta is that the selection board did not conduct proper interview in order to help the candidates of their choice. Despite the various lists incorporated in the complaint and evidence adduced, there is absolutely no finding as to who is the candidate of choice. The finding in paragraph 51 and the finding no. 6 are mutually inconsistent.
W.P(c).No.491/12 & conn.cases 152
107. Finding no. 7 is that R1 and R3 committed grave irregularities in conducting the written examination. As already found, the written examination was conducted in tune with the decision of the nominated syndicate. The irregularity which the high power committee found in the written examination was there were a few defective questions and answers. It was also found that there were no norms for awarding marks in the hand writing test. But the written test as well as handwriting test were conducted when the nominated committee was in power. None of them are parties to these proceedings.
108. Finding no.8 is that R1, R3 and R10 to R13 are guilty of nepotism and favouritism. My findings on finding no. 3 to the extent it relates to favouritism would govern this finding also.
109. The recommendation no 1 in para 63 of the report to initiate proceedings against respondents 1,3,and 10 to 13, is on the basis of the finding that they are guilty of favouritism and nepotism. When those findings are found as perverse the said recommendation has no legs to stand.
110. The recommendation no. 2 is to initiate legal proceedings against respondents 1 and 3 for withholding of OMR sheets. The case of the respondents is that they are not in a W.P(c).No.491/12 & conn.cases 153 position to withhold it when they have not received it. However it was their responsibility to keep in their custody the answer scripts and to make inquiries as to the answer sheets, at least when they came to know about it.
111. Recommendations 3 and 4 are to cancel the selection and to conduct a fresh selection. It is therefore necessary to go to the next issue: whether the cancellation and fresh selection are warranted, even assuming that all these infirmities were there.
112. The infirmity or malpractices found by the High Power Committee and the Lok Ayukta against the selection are (1) missing of OMR sheet, (2) non-constitution of selection board before commencement of selection violating Statute 8, (3) absence of norms for awarding marks in handwriting test, (4) the question paper with certain number of incorrect questions/answers, (5) scaling down the marks in written test, whereby marks in interview enhanced from 20 to 25%, (6) short list with 2114 candidates i.e 5 times the number of vacancies, (7) no minutes fixing norms for awarding marks in interview and (8) number of persons interviewed in a day. The complainant has raised a series of allegations which appear to be inconsistent. W.P(c).No.491/12 & conn.cases 154 According to him, full marks were awarded in hand writing test to those who were short of 5 marks to come within the 2114 in the short list; manipulations are carried out in OMR answer scripts; scaling down was effected to increase the percentage of marks in interview; 2114 candidates were called for the interview for favouring candidates with low marks in written test; marks were awarded in interview without norms; thereafter higher marks were awarded in interview to those with lower marks; it is also his case that a copy of the CD was prepared and made available to the selection board and they could adjust the marks in the interview, based on the marks in the written test. He also alleged that the marks in written test were also altered and for that reason the OMR sheets were concealed. It was alleged that the manipulated CD was returned to Registrar; respondents 10 to 13 wanted to see that candidates of political patronage to CPI(M) are brought to the top of the list awarding high marks in the interview. The names and details of 35 candidates were given in the complaint alleging that they are related to high profile politicians. Another list of 7 candidates were shown as the neighbors of a member of syndicate.
Complainant mentioned the names of more than 45 W.P(c).No.491/12 & conn.cases 155 candidates/appointees as having got appointment/top rank on account of their political affiliation or affinity or proximity to officers of University or politicians; but he could not substantiate the role of either of the named officers or members of selection board or of any of the candidates who got appointment.
113. The written test, handwriting test, its valuation, etc. were all over, before the term of that nominated body expired on 13.01.2006. However none of the members were impleaded or examined in any of the proceedings. The elected syndicate decided to continue the proceedings of selection initiated by the nominated syndicate. The awarding of marks for the handwriting test by Ph.D holders is also found to be irregular in the absence of norms. The questions and answers in the written test are also found defective. All those were done at a time when the nominated body of syndicate was in power and before the valuation of answer scripts. The evaluation of handwriting test was over even before the answer sheets of written test were sent for evaluation.
114. Even after the complainant was allowed to amend the complaint to incorporate specific allegations to pin point the officials who abused their positions qua the candidates benefited W.P(c).No.491/12 & conn.cases 156 by such action of the officer or member of the selection board, the complainant was not successful in substantiating the allegation against any of the officers or members of the selection board qua any of the appointees. Of course, the missing of OMR answer scripts tell upon the irresponsibility of the officers as well as the selection board. But that by itself, in the absence of any finding as to the motive behind it, or the beneficiaries of the same, cannot result in cancellation of selection, especially in the light of the judgment in Joginder Pal's case (supra).
115. On the other hand most of the appointees who have approached this court are meritorious candidates with additional higher qualifications and those who have joined the University after quitting their job in Government and quasi Government institutions, as demonstrated by Senior Advocates M/s Jaju Babu and T.A Shaji and Adv. Kaleeswaram Raj, Adv.Saji Varghese, Adv. Hood, etc, p in the writ petitions. It is also pointed out that certain candidates who were ranked top in the ranked list did not join duty. As held in Swapna Surendran's case (supra) this would weaken the allegation as to the manupulations as well as awarding of marks in interview. Apart from the general allegations relating to certain irregularities in the selection, W.P(c).No.491/12 & conn.cases 157 there is no finding that all or any of these irregularities or infirmities found were committed in order to give appointment by favouring such of the candidates by such of the members of the selection board or the Vice Chancellor or the Pro-Vice Chancellor.
116. Now I shall examine the judgments relied on by the counsel in support of their contention that the selection is not liable to be cancelled; the percentage of marks in interview; changing the rule of the game, etc. i.e whether cancellation of selection is warranted.
117. In Ashok Kumar Yadav's case (supra) the Apex Court considered a batch of appeals in respect of the selection made by the Haryana Public Service Commission. The High Court had made certain observations against the Chairman and members of the P.S.C, regarding their appointment and their integrity. There the proceedings for selection for 61 vacancies in Haryana Civil Service (Executive Branch) commenced in October, 1980. The written examination carried 700 marks for candidates in general and 400 marks for Ex-service men candidates. Viva voce examination was for 200 marks. Minimum qualifying marks in written test was 45%. After the viva voce W.P(c).No.491/12 & conn.cases 158 test was conducted, some of the candidates who got high marks in the written test but poor marks in viva voce filed writ petitions before the High Court of Punjab and Haryana and sought directions against the respondents to make the selection ignoring the marks in viva voce. The allegations were levelled against even the appointment of Chairman and Members of Haryana Public Service Commission and against their integrity, caliber and qualification, saying that they were appointed only on account of political considerations. Allegations were also levelled against the inflated number of candidates called for interview and against some of the members of the Public Service Commission pointing out that 3 candidates were related to 2 of the members of the Public Service Commission. In paragraph 21 of the judgment, the Apex Court held as follows:
"21. We do not think that the selections made by the Haryana Public Service Commission could be said to be vitiated merely on the ground that as many as 1300 and more candidates representing more than 20 times the number of available vacancies were called for interview, though on the view taken by us that was not the right course to follow and not more than twice or at the highest thrice, the number of candidates should have been called for interview. Something more than merely calling an unduly large number of candidates for interview must be shown in order to invalidate the selections made. It is also true that out of the first 16 candidates who topped the list on the basis of the combined marks obtained in the written examination and the viva voce test, 12 could come in the list only on account of high marks obtained by them at the viva voce test, though the marks obtained by them in the written examination were not of sufficiently high order. These figures relied upon by the Division Bench may create a suspicion in W.P(c).No.491/12 & conn.cases 159 one's mind that some element of arbitrariness might have entered the assessment in the viva voce examination. But suspicion cannot take the place of proof and we cannot strike down the selections made on the ground that the evaluation of the merits of the candidates in the viva voce examination might be arbitrary. It is necessary to point out that the Court cannot sit in judgment over the marks awarded by interviewing bodies unless it is proved or obvious that the marking is plainly and indubitably arbitrary or affected by oblique motives. It is only if the assessment is patently arbitrary or the risk of arbitrariness is so high that a reasonable person would regard arbitrariness as inevitable, that the assessment of marks at the viva voce test may be regarded as suffering from the vice of arbitrariness. Moreover, apart from only three candidates, namely, Trilok Nath Sharma, Shakuntala Rani and Balbir Singh one of whom belonged to the general category and was related to Shri Raghubar Dayal Gaur and the other two were candidates for the seats reserved for Scheduled Castes and were related to Shri R.C. Marya, there was no other candidate in whom the Chairman or any member of the Haryana Public Service Commission was interested, so that there could be any motive for manipulation of the marks at the viva voce examination. There were of course general allegations of casteism made against the Chairman and the members of the Haryana Public Service Commission, but these allegations were not substantiated by producing any reliable material before the Court. The Chairman and members of the Haryana Public Service Commission in fact belonged to different castes and it was not as if any particular caste was predominant amongst the Chairman and members of the Haryana Public Service Commission so as even to remotely justify an inference that the marks might have been manipulated to favour the candidates of that caste. We do not think that the Division Bench was right in striking down the selections made by the Haryana Public Service Commission on the ground that they were vitiated by arbitrariness or by reasonable likelihood of bias."
(emphasis supplied) Even after finding that the percentage of marks awarded was high and number of candidates called were in excess, the Apex court held that it was not necessary to disturb the candidates seeing that they had been working for the last 2 years. It was also found that the PSC had only followed the practice which W.P(c).No.491/12 & conn.cases 160 prevailed for the last 50 years. It was held as follows:
28.But the question which then arises for consideration is as to what is the effect of allocation of such a high percentage of marks for the viva voce test, both in case of ex-service officers and in case of other candidates, on the selections made by the Haryana Public Service Commission. Though we have taken the view that the percentage of marks allocated for the viva voce test in both these cases is excessive, we do not think we would be justified in the exercise of our discretion in setting aside the selections made by the Haryana Public Service Commission after the lapse of almost two years. The candidates selected by the Haryana Public Service Commission have already been appointed to various posts and have been working on these posts since the last about two years. Moreover the Punjab Civil Service (Executive Branch) Rules, 1930 under which 33.3 per cent marks in case of ex-service officers and 22.2 per cent marks in case of other candidates, have been allocated for the viva voce test have been in force for almost 50 years and everyone has acted on the basis of these rules.
In this context it is relevant to note that the scaling down of marks was also done following the practice in the previous selection.
118. In Union of India v. Rajesh.P.U [(2003) 7 SCC 285], the question involved was selection to the post of Constables in Central Bureau of Investigation. Applications were invited on 29.03.2000. Written test was held on 24.04.2000. Interview was held on 30.04.2000. Appointment orders were issued to certain candidates and they were directed to join. While certain candidates were awaiting for joining duty, certain candidates approached the C.A.T challenging the selection alleging favouritism and nepotism on the part of officers in conducting physical efficiency test. In the meanwhile the Director of C.B.I, W.P(c).No.491/12 & conn.cases 161 had, on receipt of complaints against the selection, constituted a committee to enquire into the complaints. In view of the constitution of the committee to enquire into the complaints, the O.A filed by the candidates challenging the selection was closed recording the same. The candidates, who got order of appointment and were waiting to join the offices under the C.B.I, were not aware of these developments and they approached the Central Adminstrative Tribunal (CAT). The C.A.T, Ernakulam Bench dismissed the O.A. When the matter came up before this court, it was found the complaints related to the errors in evaluation of marks and this court found that there was no justification to cancel the entire selection. Moreover, the committee which enquired into the complaint, had found that 31 candidates who were otherwise ineligible, got included in the select list. The Division Bench after perusing the report of the committee found that it was unnecessary to cancel the entire selection and the 31 cases can be set apart, as no concrete material was found to justify the cancellation of their appointment. In this case also, there was no material to establish or identify any of the appointed candidates having benefited by the alleged malpractices. While upholding the judgment of this W.P(c).No.491/12 & conn.cases 162 court, the Apex Court held as follows:
In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of an all-pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or the other irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or the other reasons. Applying a unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go-by to contextual considerations throwing to the winds the principle of proportionality in going farther than what was strictly and reasonably to meet the situation. In short, the competent authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational."
119. In Joginder Pal's case and in Inderpreet Singh Kahlon's case (supra), the Apex Court was considering the issue regarding selection and appointment to various posts in the State of Punjab, where allegations of large scale corruption were levelled against the Chairman of the Punjab Public Service Commission in the recruitments made between 1996 to 2002.
On investigation into the matter, criminal prosecution was launched against the Chairman; the services of all officers in the category of Nominated Executive Officers, and that of Executive W.P(c).No.491/12 & conn.cases 163 Class I and II were terminated. In the case of judicial officers, a committee constituted by the Chief Justice of the High Court to go into the allegations, recommended cancellation of all the appointments of the judicial officers recruited from 1998 to 2002. The services of the judicial officers were also terminated. All those persons, challenged the termination. The High Court found that it was not possible to segregate the tainted candidates from untainted ones and there was no option other than cancelling the selection. Apex Court found that the services were terminated, contrary to rules and directions were issued in the judgment in Inderpreet Singh Kahlon v. State of Punjab [2006 (11) SCC 356] to consider the cases in terms of the provisions contained in Article 311 of the Constitution. In paragraph 10.3 and 10.4 of the Joginderpal's case, the Apex Court referred to its directions as follows:
"10.3.A distinction exists between a proven case of mass cheating for a board examination and an unproven imputed charge of corruption where the appointment of a civil servant is involved. Only in the event it is found to be impossible or highly improbable that the tainted cases can be separated from the non-tainted cases could en masse orders of termination be issued. Both the State Government as also the High Court in that view of the matter should have made all endeavours to segregate the tainted from the non-tainted candidates.
10.4.Cases which may arise where the selection process is perceived to be tainted may be categorised in the following manner:
(i) Cases where the "event" has been investigated.W.P(c).No.491/12 & conn.cases 164
(ii) Cases where CBI inquiry took place and was completed or a preliminary investigation was concluded.
(iii) Cases where the selection was made but appointment was not made.
(iv) Cases where the candidates were also ineligible and the appointments were found to be contrary to law or rules.
If the services of appointees who had put in a few years of service were terminated, compliance with three principles at the hands of the State was imperative viz. (1) to establish satisfaction in regard to the sufficiency of the materials collected so as to enable the State to arrive at its satisfaction that the selection process was tainted; (2) to determine the question that the illegalities committed went to the root of the matter, which vitiated the entire selection process. Such satisfaction as also the sufficiency of materials were required to be gathered by reason of a thorough investigation in a fair and transparent manner; (3) whether the sufficient material present enabled the State to arrive at a satisfaction that the officers in majority had been found to be part of the fraudulent purpose or the system itself was corrupt."
Further that case was concluded in terms of paragraph 12.1, which read as follows:
12.The Court in Inderpreet Singh Kahlon case:concluded the matter in the following manner:
12.1.If services of appointees who had put in a few years of service are to be terminated, compliance with following principles by State is imperative:
(1) sufficient materials are to be collected, to be gathered by thorough investigation in fair and transparent manner; (2) illegalities committed must go to the root of the matter, vitiating entire selection process; and (3) the appointees/officers in majority must be found to be part of the fraudulent purpose or the system itself must be found to be corrupt."
It is pertinent to note that the Apex Court found that all the three requirements were necessary in case the termination was to be made for the alleged malpractices. In other words, apart from W.P(c).No.491/12 & conn.cases 165 the fact that there should be sufficient materials; and the illegality should go to the route of matter, vitiating the entire process of selection; majority of the appointees also should have been found to be part of the fraudulent purpose. In this case none of the appointees are found to be a part of any fraudulent purpose. Further in paragraph 40 of the judgment in Joginderpal's case, the Apex Court held that the issue of entire selection process being vitiated would have arisen, only if the findings were to the effect that it was not possible to distinguish the cases of tainted from the non-tainted ones and there was a possibility that all have got the benefit of wrong doing. In paragraphs 40 to 42 the Apex Court held as follows:
"40. In view of the above, the issue of entire selection process having been vitiated would have arisen only if the findings of the Committee were that it was not possible to distinguish the cases of tainted from the non-tainted ones and there was a possibility that all of them would have got the benefit of wrongdoings of Mr Sidhu and his accomplices. Fortunately for these appellants, it is not so as they have been found innocent. The appellants get ensconced, earning a safe place, once they are removed from the category of nefarious persons. Though the tainted candidates have rightly received their comeuppance, but the innocent persons cannot be punished with them. Thus, it is difficult to accept the fallible conclusion of the High Court.
41.We have also gone through the reasons given by the High Court in the impugned judgment, in support of the conclusion that the entire process is to be treated as vitiated. We find that the reasons are the same which were placed earlier before the High Court by the Government in Amarbir Singh case and they were very much before this Court as well when the judgment in Inderpreet Singh Kahlon was rendered. Without alluding to them in detail, we may say in a nutshell that the reasons given pertain to the conduct and role of Mr Sidhu and his accomplices who had taken money/bribes from some of the candidates or had given undue favour W.P(c).No.491/12 & conn.cases 166 to some other candidates because of other influences. The material discussed is the allegations in various FIRs and statements of Mr Jagman Singh, a confidant and tout of Mr Sidhu (who had become approver in the criminal case), and others recorded under Section 161 of the Code of Criminal Procedure, 1973 and the cases in the criminal trial. However, even after noticing these very reasons, this Court had held that those who are innocent cannot be punished because of the misdeeds of Mr Sidhu in showing favour to other tainted candidates.
42.There is yet another reason to hold that these persons who have come up clean, meaning thereby, who have entered the service by passing the examination on their own merits, should be allowed to continue in the government service. We have already mentioned in the earlier part of the judgment, while discussing the case of Inderpreet Singh Kahlon, that the Court had not approved the recommendation of the High Court, on the basis of which the Government had acted, in respect of the judicial officers whose services were also terminated. It is not necessary to state in detail the reasons given by the Court while condemning the action of terminating the services of the judicial officers, which was taken in undue haste. The Court had also remarked that all these judicial officers were subjected to viva voce/interview test as well, which was conducted as per Rule 17(a)(iii) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, and no breach of the said Rule had been pointed out. The Committee which interviewed these judicial officers included a Judge of the High Court as well. The Court categorically observed that there may be some cases where marks had been given for extraneous considerations, but only because there was such a possibility, the same by itself, without analysing more, may not be a ground for arriving at a conclusion that the entire selection process was vitiated. The direction was, accordingly, given to consider the entire matter afresh."
There is no finding that any of the candidate who was appointed or even included in the ranked list was a party to the fraud if at all there was any fraud or for any of the infirmities found. Therefore it is a case where all the three tests laid down by the apex court are not fulfilled so as to recommend a cancellation of selection. Therefore the recommendation for cancellation is not sustainable on that ground itself.
W.P(c).No.491/12 & conn.cases 167
120. The High Power Committee found that the evaluation of the handwriting was not proper while awarding marks ranging from zero to five, in a casual manner and it affected the selection seriously. However the Committee found in para XXIX(iii)that marks were awarded by 7 Ph.D holders viz. Dr. V.Lekshmanan, Dr. F. Abdul Rahim, Dr. K.Lawrence, Dr. S. Sethuraman, Dr. K.Rajaram, Dr. V. Vinod kumar and Dr. G. Bhaskaran. There is no allegation or finding that those valuers had any oblique motive or that they were influenced by any candidate for awarding them high marks or for not awarding marks to any candidate, that too, at a stage when the evaluation of written test was not done. The members of the nominated body of syndicate, who were responsible for the process of selection at the relevant time are not made parties to these proceedings. The members of the selection board come to the picture only after the evaluation.
121. The next finding as to the infirmity in selection is because of the enhanced percentage of marks in interview on account of scaling down, on the ground that the marks in interview exceeded the permissible limits. In Tridip Kumar Dingal and Others Vs. State of West Bengal and others [(2009)1SCC 768], the Apex Court, after referring to several of the W.P(c).No.491/12 & conn.cases 168 judgments on the point, held that if at all there was an irregularity found, selection shall not be disturbed after a long time. Paragraphs 49, 51, 53 are relevant which read as follows:
"49. In Munindra Kumar v. Rajiv Govil the selection comprised of written test, group discussion and oral interview. The relevant rule fixed of total marks for group discussion and oral interview (20% each). Though this Court held fixation of marks as arbitrary, being on higher side, it refused to set aside selection made on that basis since selection had already been made, persons were selected, appointed and were in service.
51. In Buddhi Nath Chaudhary v. Abahi Kumar appointments were held to be improper. But this Court did not disturb the appointments on the ground that the incumbents had worked for several vears and had gained good experience. "We have extended equitable considerations to 'Such selected candidates who have worked on the post for a long period", said the Court.
53.In our considered opinion, the law laid down by this Court in aforesaid and other cases applies to the present situation also. We are of the considered view that it would be inequitable if we set aside appointments of candidates selected, appointed and are working since 1998-1999. We, therefore, hold that the Tribunal and the High Court were right in not setting aside their appointments."." In Swapna Surendran's case this court upheld the selection, even when the percentage of marks in the interview was 40%, ruling out allegations as to changing the rules of the game also, after the selection commenced. The enhancement from 20 to 25% marks in interview cannot, therefore be the basis for cancellation of a selection.
122. Thus it is settled law that there is no hard and fast rule with respect to the percentage of interview. It is an W.P(c).No.491/12 & conn.cases 169 undisputed fact that such scaling down was effected and marks in interview was enhanced from 25/175 to 25/100 in the previous selection. The selection board has followed that procedure on the basis of the note furnished by the Registrar in the meeting held on 30.06.2007, about the previous selection. Therefore, that scaling down itself cannot be a factor relevant for cancelling the selection.
123. Yet another contention is that the rules of the game were changed midway by the scaling down. The University statute or ordinances do not provide for any percentage of marks in interview. It does not even provide for even the nature of test to be conducted. Notification inviting applications did not provide for the percentage of marks in written test or interview. However, the instructions to candidates in the hall ticket provided for the same. At any rate, none of the beneficiaries of the scaling down are found to have influenced over any of those in the selection board or the officials. Annexure A14 list furnished by the expert member contains the details of 12 candidates, who would have been in the top of the list. The rank of those candidates, along with the details given in Annexure A14, are given in Ext.P10 comparative chart in W.P.(C) W.P(c).No.491/12 & conn.cases 170 No.1217/2012. Those 12 candidates who were ranked between 207 and 382 as per marks in written test and are ranked between 141 and 200 after the interview, would have been ranked between 140 and 196 without scaling down. Therefore, the scaling down cannot be said to be a vitiating factor on account of which the selection could be cancelled.
124. Regarding scaling down of marks in written test, no material is available to show the purpose behind scaling down. The Committee has found that the decision to scale down the marks was taken following the precedent; but it found that a bad precedent need not be followed. In this context it is pertinent to note that the Apex Court in Ashok Kumar Yadav's case (supra) case held that the candidates need not be disturbed as they had been continuing for 2 years. It was found that for about 50 years, the PSC had been adopting the same practice. Therefore the scaling down of marks following the practice adopted cannot be found fault with. The incorrect questions or incorrect answers found with respect to the written test cannot also be a factor by which a selection could be set aside. These questions and answers could have affected all the candidates equally. The members of selection board which was constituted after written W.P(c).No.491/12 & conn.cases 171 test cannot be responsible for that. But the complainant did not implead the members of the nominated body which was in power when the written test was conducted. They did not appear also in response to notice issued in the Writ Petition filed by the non- political member, the 12th respondent.
125. The decision to interview 2114 candidates was seen taken in view of the number of available vacancies. The decision to interview 5 times the number of vacancies is not seen to have caused any prejudice or benefit to any particular candidate. The fact that a decision to interview twice or thrice the number of candidates also would have been proper, cannot in any way make the decision of the selection board improper or fraudulent, as long as there is no finding as to the motive as held in Ashok Kumar Yadav's case (supra). There is no hard or fast rule that the number of candidates to be called for in the interview shall be limited. Just because 5 times number of candidates were called, it cannot be said that the selection is vitiated. When the witnesses were examined, nothing was brought about to show that any candidate was shown any favour on account of the volume of the shortlist. It is relevant to note that 2116 candidates secured marks above 62 in the written test. W.P(c).No.491/12 & conn.cases 172
126. The High Power committee has already found that the delay involved in the process of selection was inevitable in view of the absence of syndicate after the expiry of the term of the moninated body and the taking charge of the elected body of syndicate.
127. The contention raised by Sri T.R.Ravi supporting the finding of the Sukumaran committee was to the effect that even fraction of a mark would make a lot of difference in the total marks which in turn will affect the inclusion in the rank list and the position therein. The question to be considered is whether these anomalies can be grounds to recommend cancellation in a complaint involving an allegation by an outsider, in the absence of any finding with respect to any particular candidate who got such favours as well as source of such favour.
128. It is pertinent to note that this court had in Ext.P1 judgment directed to find out the role of the particular officers who were alleged to have been involved in the process of selection which was alleged to be vitiated by malpractices. In that process this court had observed that if at all whereabouts of the OMR sheets could not be found out, the irregularities if any in the selection, if found out, it will help the University to mend W.P(c).No.491/12 & conn.cases 173 its ways.
129. The nominated body of syndicate is not a party to these proceedings. There is no case for any of the parties that the members of the nominated body and those of the elected body were having the very same ideologies so as to conduct a selection to appoint persons of choice. The contention of the learned standing counsel for the University is that both these bodies are having diametrically opposite ideologies. Therefore, both these groups could not be said to have any oblique motive which is common to facilitate the appointment of persons of choice, to bring them to the top of the list. Moreover, it appears to be totally inconsistent to plead and assert that marks were awarded in hand writing test in such a way that the candidates come within the minimum cut off marks, even before the answer scripts were valued; or that after manipulation is carried out in the marks in written test, scaling down also is required, in order to award high marks in interview and therefore the interview marks are awarded without fixing norms for the same. In case the marks in the written test could be manipulated already, it would not normally require addition of marks in interview also in order to favour the candidates of choice or for that purpose W.P(c).No.491/12 & conn.cases 174 conducting an interview without fixing norms for awarding marks. Yet another fact is that the papers of handwriting test were evaluated by Ph.D holders who were examined by the high power committee by sending questionairs. The marks in handwriting test were already sent to the evaluator in 2005 along with the answer scripts which were to be valued. Even then the awarding of 5 marks to several of the candidates are allged to be given to bring them within the minimum marks of
67. Whatever it may be, neither the committee nor the Upa Lok Ayukta arrived at a finding that any particular candidate was awarded high marks either in the written test or in the interview at the instance of any particular official. The complainant had furnished a long list of candidates who were alleged to have been favoured by the malpractices. But there is no finding that any of such persons were given any marks at the instance of any of the respondents or otherwise.
130. Now I will consider whether the Upa Lokayukta is barred under Section 8 read with clause (d) of Schedule II of the Act 1999 to enter into the areas relating to illegalities/infirmities/irregularities in a selection when the complaint involves only an allegation. In Ext.P1 judgment this W.P(c).No.491/12 & conn.cases 175 court already found that what was under consideration before the Upa Lok Ayukta was an allegation and it has jurisdiction to entertain the compalint No.572 filed by Sri.Sujith. Allegation is defined under Section 2(b) of the Lok Ayukta Act, 1999 as follows:
2 (b)" allegation", in relation to a public servant, means any affirmation that such public servant,-
(i)has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person;
(ii)was actuated in the discharge of his functions as such public servant by persosnal interest or improper or corrupt motives; or iii.is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant;
Corruption is defined in sub section 4(e) of Section 2, which means corruption includes anything made punishable under Chapter 10 of the I.P.C or under the Corruption Act. Therefore, in order to constitute an allegation, the public servant should have abused his position in order to obtain any gain or favour to himself or to any other person or he should have caused harm or hardship to another person. Otherwise he should have discharged his functions in any personal interest for improper or corrupt motives. Otherwise he should be guilty of corruption, favouritism, nepotism and lack of integrity. As far as the members of the syndicate are concerned, it is pointed out that W.P(c).No.491/12 & conn.cases 176 this court had set aside the proceedings initiated against them under the Prevention of Corruption Act, on the ground that there was no material to charge them under the Prevention of Corruption Act in as much as they had not obtained any gain or favour. In this case none of the respondents is found to have any personal interest so as to have any personal gain either to himself or to anybody else.
131. Section 8 of the Act 1999, provides for the areas which are excluded from the authority of the Lok Ayukta which stipulates that the Lok Ayukta shall not investigate any action in a complaint involving grievance in respect of matters specified in the second schedule. Admittedly this is a matter found fit to be investigated as an allegation. Schedule II which excludes matters relating to the action taken in respect of appointment under clause (b) thereof will be applicable only in respect of an investigation on a grievance. Section 8 of the Kerala Lok Ayukta Act and relevant portion i.e clause (d) of Schedule II read as follows:
8(1) Except as hereinafter provided, the Lok Ayukta or an Upa Lok Ayukta shall not conduct any investigation under this Act, in the case of a complaint involving a grievance in respect of any action, if such action relates to any matter specified in the Second Schedule.
xxxxx xxxxx xxxxx xxxx W.P(c).No.491/12 & conn.cases 177
(d) Action taken in respect of appointment, removal, pay, discipline, superannuation or other matters relating to conditions of service of public servants but, not including actions relating to claims for pension, gratuity, provident fund or to any claims which arises on retirement, removal or termination of service."
It cannot therefore be said that there is any prohibition in entertaining or investigating a complaint involving allegations with respect to matters covered by clause (d) of 2nd schedule to the Lok Ayukta Act. However in order to place recommendations on the basis of allegations, what is to be looked into is whether the ingredients of Section 2(b) are satisfied. Report under Section 12(3) envisages satisfaction of the Upa Lok Ayukta that the allegation is substantiated in whole or part. If at all the alleged malpractices are found proved, it should be seen that such malpractises are in furtherance of corrupt motives and any of the factors constituting the allegation is substantiated.
132. Under Section 7(2), the Upa Lok Ayukta may investigate any action which is taken by a public servant in any case where a complaint involving a grievance or allegation is made in respect of such actions or such action can be or could have been in the opinion of the Upa Lok Ayukta the subject matter of a grievance or an allegation. Therefore, an W.P(c).No.491/12 & conn.cases 178 investigation can be made by the Upa Lok Ayukta on a complaint involving an allegation even in respect of matters covered by Section (2). However in order to take action on the complaint after investigation, it should be found that the allegation is substantiated. In other words, it should be found that the public servant has abused his position to obtain any gain or favour to himself or another, or that he discharged his functions with improper or corrupt motives or favouritism or nepotism or lack of integrity.
133. There is no finding by the Upa Lok Ayukta that any of the officers i.e respondents 1, 3 or 10 to 13 have obtained any personal gain or favour either to themselves or to any particular candidate or other persons. There is no finding as to the functions being discharged were actuated by personal interest or improper or corrupt motives. The allegations raised in the complaint can be termed as irregularities in the conduct of selection. Irregularities need not be on account of corrupt practices.
134. The question to be looked into is whether the aforesaid infirmities in the process of selection will constitute an allegation based on which recommendation can be made for W.P(c).No.491/12 & conn.cases 179 further proceedings, under Section 12(3) of the Lok Ayukta Act 1999. In order to proceed under Section 12(3) of the Act, the Upa Lok Ayukta should be satisfied that the allegations are substantiated wholly or in part. The relevant provision under Section 12(3) and (4) read as follows:
"3) If after investigation of any action is respect of which a complaint involving an allegation has made, the Lok Ayukta or an Upa-Lok Ayukta is satisfied that such allegation is substantiated, either wholly or partly, he shall, by report in writing, communicate his findings and recommendations along with the relevant documents, materials and other evidence to the competent authority and also intimate the complaint about its having made the report.
(4)The competent authority shall examine the report forwarded to it under sub-section (3) and, within three months of the date of receipt of the report, intimate or cause to be intimated to the Lok Ayukta or the Upa-Lok Ayukta, as the case may be, the action taken or proposed to be taken on the basis of the report."
In order to arrive at the satisfaction that the allegations are substantiated wholly or in part, the Upa Lok Ayukta should have found the ingredients of Section 2(b) of the Act which defines 'allegation' have constituted the action of the public servants. There is no case that they abused their official position for their personal gain or to favour anybody or to cause harm to anybody. No corrupt motive is also implicated or found. The finding is that the selection is vitiated by corruption, favouritism, nepotism and lack of integrity. There is no evidence to show that any of the respondents have done anything in the selection out of W.P(c).No.491/12 & conn.cases 180 favouritism or nepotism. The only ingredient which remains is whether these irregularites can be found to have occurred on account of lack of integrity of any of them in their capacity as such public servants, on account of which action is permissible. Integrity is not defined in the Act. In the judgment in Union of India v. P. Gunasekaran [(2015) 2 SCC 610], the Apex Court has considered an issue where the Government servant was punished by absenting himself unauthorisedly and thereby lacked integrity. The observations therein are relevant which read as follows:
20.In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford Dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence, etc. In short, it depicts sterling character with firm adherence to a code of moral values.
21.The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service.
135. In this context it becomes necessary to examine the two other objections raised by the members of the selection board, who were respondents 10 to 13 in the complaint. 1st objection is W.P(c).No.491/12 & conn.cases 181 that they are not public servants. 2nd is that there is no administrative department for them and at any rate, they are not under the Department of Higher Education.
136. Next question is whether the members of syndicate - respondents 10 to 13 in the complaint are Public Servants as defined under the Act. Even though the Upa Lok Ayukta in its first report found that members of syndicate/selection board come under Section 2(o)(vii)(F), in the report impugned it is found that they would come under sub clause (v) of Section 2(o). Section 2(o)(v) reads as follows:
"(o) "Public servant" means a person who is or was at any time,-
(i) xxxx;
(ii) xxxxx;
(iii) xxxxx;
(iv) a Government servant;
(v)the Chairman and the Vice-Chairman (by whatever name called) or a member of a local authority in the State or a statutory body or corporation established by or under any law of the State Legislature, including a Co-operative Society, or a Government Company within the meaning of section 617 of the Companies Act, 1956 (Central Act 1 of 1956) and such other Corporations or Boards, as the Government may, having regard to its financial interest, in such Corporations or Boards by notification, from time to time, specify;
"Section 2(o)(vii) reads as follows:
(vii) a person in the service or pay of,-
(A) a local authority in the State;
(B) a statutory Body or a Corporation (not being a local authority) established by or under a State or a Central Act; owned or controlled by the Government of Kerala and any other Board or corporation as the Government may, having regard to its financial interest therein, specify, by notification in the Gazette from time to time; (C) a Company registered under the Companies Act, 1956 (General Act 1 W.P(c).No.491/12 & conn.cases 182 of 1956), in which not less than fifty-one percent of the paid up share capital is held by the Government of Kerala or any company which is a subsidiary of such company;
(D) a society registered or deemed to have been registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955 (XII of 1955) or the Societies Registration Act, 1860 (Central Act 21 of 1860), which is subject to the control of the Government of Kerala and which is notified, in this behalf, in the Gazette; (E) a co-operative society;
(F) a University;
Explanation- In this clause, "co-operative society" means a co-operative society registered or deemed to have been registered under the Kerala Co-operative Societies Act, 1969 (21 of 1969) and "University" means a University established by or under any law of the State of Kerala."
It is also pointed out that the members of Syndicate were included in the Kerala Public Mens' Corruption (Investigation and inquiries) Act, 1987. Under section 2 (v) of that Act, a member of a local authority, or the syndicate or executive committee of a University established by an Act of State Legislature was included in the definition of Public Servant. But the members of syndicate are not included in the Lok Ayukta Act, 1999. Therefore, the contention is that the exclusion is intentional. Another contention is that all the bodies included in clause (v) are to the effect that they are having the capacity to sue or to be sued, even though the syndicate is a statutory body which is constituted under the provisions contained in the Univesity Act, the syndicate cannot sue or to be sued. Respondents 10 to 13 in the complaint are members of the W.P(c).No.491/12 & conn.cases 183 syndicate which came into power in June, 2006 and when the interview was conducted. Clause (v) includes a Chairman, Vice Chairman or member of a local authority in a statutory body established by or under any law of the State legislature. It will also include such other Corporation or boards as Government may by notification from time to time specify. Therefore, the statutory body should be established by or under any law of the State legislature. It cannot be said that the syndicate is not a statutory body established under the Kerala University Act, the legislation of the State legislature. Syndicate is defined under Section 2(26) of the Kerala University Act, 1974 to mean the syndicate of the university. Under Section 16(ii) of the Act, the syndicate is an authority of the University. Section 3 of the Kerala University Act provides that the Chancellor, the Pro Chancellor, the Vice Chancellor, the Pro Vice Chancellor and the members of the senate, syndicate and academic council shall constitute the body corporate by name of the University of Kerala. Sub section 2 provides that the University shall have perpetual succession and a common seal and shall sue and be sued by the name. Therefore, when the University sues it should mean that it includes the Vice Chancellor as well as the members W.P(c).No.491/12 & conn.cases 184 of senate and syndicate. Therefore, members of syndicate would be part of the University. Clause (v) provides that Chairman, Vice Chairman or a member of the statutory body or Corporation established by any law of State legislature would be a public servant. Therefore, when the syndicate is one of the constituents of the University and the University is having a perpetual succession and common seal, it cannot be said that the members of the syndicate would not come under clause (v). Therefore, the contentions raised by respondents 10 to 13 that all other body corporates are liable to sue and be sued, unlike the syndicate or that there is a separate provision provided in clause (vii) of Section 2(o) which specifically provides for University separately in clause (F), will not help the petitioners so as to exclude the jurisdiction of the Upa Lok Ayukta against it. In sub clause (b) of clause (vii) of Section 2(o), it is provided that a statutory body or a corporation is established by or under of State or Central Act owned or controlled by the Government of Kerala and any other board or corporation. At the same time what is provided in clause (v) is a statutory body or corporation established by or under any law of the State legislature. A statutory body established by or under the law of State legislature and a W.P(c).No.491/12 & conn.cases 185 statutory body established under a State or a Central Act owned or controlled by the Government of Kerala are different. At any rate, since there is a separate provision including University when it refers to persons in the service of pay of University, will not mean that the members of the syndicate or a university is not included under a statutory body. When the University itself is inclusive of the member of the syndicate, which is in turn a member of the University, as provided under Section 3 of the Universities Act, it will definitely come under the purview of the definition of public servant as well as under the jurisdiction of the Upa Lok Ayukta. Under Section 16 it is one of the authorities of the University. Section 21 provides that the syndicate shall be Chief Executive body of the University and it further provides for the members who shall be comprised in the syndicate. Therefore, the members of the syndicate are public servants.
137. The next issue to be considered is whether the Higher Education Department is the competent authority as far as members of the syndicate are concerned, to whom the Lok Ayukta can forward the report. As per Rule 2 (b)(i) of Kerala Lok Ayukta (Constitution of Competent Authothority) Rules, 2000, W.P(c).No.491/12 & conn.cases 186 competent authority as far as public servants as defined under Section 2(o)(v) to (vii) is the Secretary of the administrative Department. Relevant portion of Rule 3 reads as follows:
"The competent authority in relation to a public servant referred to in sub-clause (v) of clause (d) of Section 2 of the Act shall be,-
(a)
(b) for the purposes of this Act, except for Section 22 thereof
(i)in respect of a public servant referred to in sub-clauses (v), (vi),
(vii), (x), (xi), (xii) and (xiii) of clause (o) of Section 2 of the Act, the Secretary in charge of the Administrative Department to which the public servant is related to;
(ii)xxx Under Section 21 of the Kerala University Act, the syndicate shall consist of Vice Chancellor, Pro Vice Chancellor, Secretary to Government, Director of Public Instructions, Director of Collegiate Education, Secretary to Government, Information Technology Department or an officer of that Department and 13 members elected by the senate, out of which 7 shall be persons who are not teachers, of whom, one shall belong to Scheduled Caste or Scheduled Tribe Community, 2 shall be Principal of Fine Arts college, of whom one shall be Principal of Government college; 4 shall be teachers who are not principals of whom one shall be a University teacher and one shall be a teacher of Government College. Therefore, there are at least 7 persons W.P(c).No.491/12 & conn.cases 187 who are nominated by the Government. Under Section 23 of the Act, the syndicate is having general superintendence/control over the institutions of Universities and powers including that to appoint the teaching and non-teaching staff of the University. As per Section 7, the Head of the University is the Chancellor and the Chancellor is having the right to suspend or dismiss any of the authorities of the University. The Chancellor is the appellate authority in respect of actions taken by the syndicate. Therefore, as far as the members of the syndicate are concerned, the Department of Higher education cannot be said to have any adminsitrative control over them and the said Department cannot therefore be the competent authority. Thus as far as the members of syndicate are concerned, even though they are public servants as defined under the Act 1999, there is no competent authority prescribed under the Act or Kerala Lok Ayukta (Constitution of Competent Authothority) Rules, 2000.
138. Next issue to be considered is whether the petitioner in W.P.(C) No. 37082/2007 has locus standi to pursue the case, once he ceased to have any interest in getting appointed as Assistant Grade II on his appointment as Deputy Collector. It is not disputed that once he had filed a not pressed memo in the W.P(c).No.491/12 & conn.cases 188 case and later it was withdrawn. Therefore, as at present he is having only public interest. Eventhough Sri. Anand argued that the adjudication of the writ petition should be as on the date of filing the writ petition, I am unable to accept the said contention. The private interest of the petitioner has already conformed to public interest. A writ petition cannot be allowed to be pursued merely for academic interest, especially when the petitioner is not interested in the fruits of the same. As rightly contended by the learned Senior Counsel Sri. Shaji, it is settled law that there cannot be any Public Interest Litigation in Service matters, in the light of the judgments of the Apex Court in Duryodhan Sahu v. Jitendra Kumar Mishra : (1998) 7 SCC 273; B. Singh v. Union of India : (2004) 3 SCC 363: Dattaraj Nathuji Thaware v. State of Maharashtra: (2005) 1 SCC 590; Gurpal Singh v. State of Punjab, (2005) 5 SCC 136; Hari Bansh Lal v. Sahodar Prasad Mahto [(2010) 9 SCC 655]; Madan Lal v. High Court of J&K: (2014) 15 SCC 308, etc. In these circumstances the W.P.(C) No. 37082 of 2007 is only to be dismissed.
139. The petitioner in W.P.(C).No.11937/2011 is claimed to W.P(c).No.491/12 & conn.cases 189 be a person interested in implementation of the Upa Lok Ayukta's order. He claims that he had appeared in the selection. However admittedly he has approached this court for the first time in 2011, after a period of 4 years. On that ground itself the writ petition is liable to be dismissed. Moreover, no arguments were also raised. In the above circumstances, W.P.(C) No. 11937/2011 is also dismissed.
W.P(c) No.519 of 2012
140. It is relevant to note that the case of the 3rd respondent Pro Vice Chancellor was that he did not have any role either in the conduct of examination or in dealing with the collection of answer scripts and that his role was confined to conduct of academic examination, as per Ext.R3(a). According to him, he has only helped the Vice Chancellor as and when he requested for the same. According to him, as per the University Act and Statutes the conduct of examination or custody of answer papers or any records of the University does not come under any of his duties enumerated. But it is the duty of the Registrar to maintain and keep custody of the records.
141. But it is seen that the 3rd respondent admitted that the Secure Print Ltd. had sent the soft copy of the results of the W.P(c).No.491/12 & conn.cases 190 written test along with hard copy to him and he entrusted the same to the Registrar. He himself produced a letter before the Upa Lok Ayukta in which he had addressed the Secure Prints to retain the answer scripts with them. But the Upa Lok Ayukta discarded it since he did not choose to produce the same in the initial proceedings. However that letter will only indicate his involvement, in the conduct of examination, which goes against his contentions.
142. It is also pertinent to note that the deposition of the Vice Chancellor before the Upa Lok Ayukta and the statement in the counter affidavit filed by him, are also to the effect that the Pro-Vice Chancellor was in over all charge of the examinations. It is also seen that several meetings were also headed by the Pro- Vice Chancellor in connection with the examination. Therefore, the contention that he has no role cannot be accepted. The evidence adduced after examining the Production Manager of the Secure Print Limited- Mr.Phanikrishna, its Chief Executive Officer as well as the Joint Registrar Smt.Krishnambal, also will indicate the involvement of the 3rd respondent in dealing with the OMR answer scripts at least for the purpose of sending it for valuation, receiving the soft copies and mark lists. W.P(c).No.491/12 & conn.cases 191
143. However the Committee found that there is no direct evidence as to the fate of the OMR answer scripts. The finding of the Upa Lok Ayukta is that it was possible that he received it. That finding was arrived at on the basis of the letter given by the Secure Prints after the complaint was filed in 2008 along with the only document of 9.11.2005. According to the University also it is not returned.
144. The case of the complainant was that the 3rd respondent had received the answer scripts; but in order to conceal the manipulation in the marks awarded, the answer scripts were concealed or destroyed.
145. As pointed out by the learned Senior Counsel, it is true that the letter dated 9.11.2005 alone does not contain the details of dispatch in full, with mode of transportation, lorry receipts, etc. It is also clear that the charges mentioned therein are with respect to the parcel sent on 29.06.2005 i.e a date prior to the written examination. Therefore, on the basis of the said letter, it cannot be said that the 3rd respondent has received it.
146. The petitioner came forward with a letter saying that he instructed the Secure Prints to retain the answer scripts. Then Up Lok Ayukta cannot be found fault with in not accepting W.P(c).No.491/12 & conn.cases 192 the same, when the petitioner chose to produce such a letter only in the second round of trial and the petitioner had been saying that he did not have any involvement in the conduct of selection to the post of Assistants. But he admits that he received the soft copies from the evaluating agency.
147. On an overall assessment, even though the Upa Lok Ayukta has relied on circumstantial evidence, it can be seen that there is some evidence regarding some involvement of the petitioner in the process of selection, even from his own document. There are also evidence to show that payment was made to the agency on instructions by the petitioner. At the same time the findings that he received the OMR sheets, is without any direct evidence and is only a possibility.
148. However there is not even a vague reference as to any oblique motive behind Dr. Jayaprakash, for concealing or destroying the OMR answer scripts, or to favour any candidate or to cause harm to any candidate. No candidate is named as having found benefited by his influence. No harm is also caused by his action to any candidate. Even though it was alleged that one of his relatives was included in the ranked list, that inclusion was not found to be influenced by him. Complainant has no case W.P(c).No.491/12 & conn.cases 193 that the 3rd respondent got any personal gain or caused any harm to anybody by the alleged concealing of the OMR answer scripts. No corruption or nepotism could be proved.
149. Of course the Upa Lokayukta has relied on the assertions of the complainant, to arrive at conclusions as to the receipt of OMR sheets in the University and the infirmities in selection on the basis of circumstantial evidence. In paragraph 40 of the report, Upa Lok Ayukta stated that the complainant was definite in saying that the valued OMR sheets were received by the 3rd respondent." Upa Lok Ayukta found that the evaluation agency or the University did not have a case that any further payment was due to the agency towards valuation.
150. Even though the 3rd respondent produced Ext.R3(a) to prove that his duties were confined to academic examinations and it was pointed out that as per the University Act or statute the Pro Vice Chancellor's duty does not relate to anything related to examination for recruitment of the staff, the 3rd respondent himself admitted his involvement in the examination. According to the counter affidavit filed by the Vice Chancellor in this case and in WP.(C).No.37082/2007, it was the Pro Vice Chancellor who was supervising the selection and he was in W.P(c).No.491/12 & conn.cases 194 charge of the entire process of selection right from the beginning. As per the statements filed by respondents 1 and 2, it was the 3rd respondent who was in charge of the examination, which the 3rd respondent disputed. He himself has produced documents to show that he had requested the Chief Executive Officer/Production Manager of Secure Prints to keep the answer scripts with the printer. If such answer scripts are allowed to be retained by the evaluating agency, that would only prove the irresponsible nature of those who are in the helm of affairs of the University. Upa Lok Ayukta has rightly found that even if the answer sheets were not received in the University, there was no reason for the University Officials or the members of the selection board for not making any inquiry into its non-receipt when they received the mark list when there was no agreement executed for retaining the answer scripts with the evaluation agency.
151. Even though the learned counsel for the petitioner pointed out that there is difference in signature of Sri.Phanikrishna in the letter stated to have been sent by him and the letter forwarded by the CEO of the Secure Print Limited and that it appears to have vast difference between the two W.P(c).No.491/12 & conn.cases 195 signatures; that Smt.Krishnambal who deposed in her first round of examination that she made the payment on instruction received from Pro-Vice Chancellor, she did not have any answer in her examination in the second round, those are not matters, which require consideration by this court under Article 226 of the Constitution of India. It is not a case where there is no evidence against the 3rd respondent. There is some evidence connecting the involvement of the 3rd respondent with respect to the conduct of examination as well as the OMR answer scripts. However, there is no evidence to establish that Dr. Jayaprakash received the answer scripts, as the finding of the Committee itselef is that there is no direct evidence that it was received by him and it is only a possibility coupled with assertions of the complainant before the Upa Lok Ayukta.
152. Learned counsel for the petitioner had relied on the judgment of the Orissa High Court in Jagannath Naik others vs. Additional district Magistrate (LR) Balahora and others [1996 Orissa 16] regarding the course of action to be taken when there is some evidence. In this case, the finding against the petitioner is regarding the missing of answer scripts. The contention is that evidence which cannot support a finding W.P(c).No.491/12 & conn.cases 196 shall be treated as no evidence. Page 312 of " Administrative Law 7th Edition by HWR Wade, which deals with 'findings, evidence and jurisdiction', is relevant, as argued by the learned Senior Counsel, which reads as follows:
"This no evidence principle clearly has something in common with the principle that perverse or unreasonable action is unauthorised and ultravires. Xxxx "It is one thing to weigh conflicting evidence which might justify a conclusion either way, or to evaluate evidence wrongly. It is another thing altogether to make insupportable findings."
But at any rate, there is no finding that the Pro vice Chancellor had any oblique motive for concealing the OMR answer scripts or for destroying it or to make any correction in the marks in written test. The complaint was that the members of selection board wanted to bring in sympathizers of CPI(M), which, could not be substantiated or rather ruled out completely in para 51 of the report. Despite all these no evidence has come forth to show that any appointment was made on the basis of his influence or that he had influenced any of the members of the selection board in order to have any personal gain or favour. Therefore, it cannot be said that his action amounted to favouritism or nepotism. Those findings are inconsistent and unsupported by evidence. At the most it can be said that there is lack of integrity. W.P(c).No.491/12 & conn.cases 197
153. In the above circumstances, I am of the considered view that it is necessary that appropriate action is taken against the officials of the University for the casual, careless and irresponsible approach in conducting the examinations, as a corrective measure as observed in Ext.P1 judgment of this court and it is upto the competent authority to decide the course of action to be taken.
154. Based on the aforesaid discussion and findings arrived at on all these issues, these writ petitions are disposed of with the following declarations:
(i) the recommendation of the Upa Lok Ayukta to cancel the the rank list and the appointments of Assistant Gr II made from the rank list and to conduct fresh selection to the posts of Assistants in the Kerala University are absolutely unwarranted.
(ii) the appointments made from the rank list are treated as regular and the appointees would be entitled to all service benefits based on their respective dates of appointment;
(iii) non-constitution of selection board before commencement of selection/decision to conduct selection by the whole syndicate, missing of OMR answer scripts, W.P(c).No.491/12 & conn.cases 198 absence of minutes as to fixing of norms for awarding marks in interview/awarding of marks without determining the norms, in the circumstances explained above, can only be irregularities in the process of selection, for which action can be taken against those who are guilty of lack of integrity;
(iv) Higher Education Department cannot be the adminstrative department as far as the members of syndicate are concerned, and it is seen that there is no competent authority notified for them as provided in the 2000 Rules.
(v) Infirmities found in the process of selection calls for measures for rectification and not cancellation or fresh selection;
(vi) the petitioner in W. P.(C) No.37082/2007 is not entitled to pursue the writ petition, once he got appointment as Deputy Collector.
(vii) No further appointment need be made from the rank list at this distance of time. Hence petitioners in W.P. ) No. 23311/2016 cannot have any claim for appointment from the select list.W.P(c).No.491/12 & conn.cases 199
(viii) action is permissible against the Vice Chancellor, Pro-
Vice Chancellor and members of syndicate, to the extent of lack of integrity, on account of the irresponsibility and irregularities in the process of selection.
(ix) the report dated 10.12.2010 of the High Power Committee and the report dated 29.12.2011 of the Upa Lok Ayukta in Complaint No.572 of 2008 shall stand set aside to the extent indicated above.
W.P. ) No. 10644/2015 As I have already upheld the selection of the appointed candidates, the University shall grant them all benefits flowing from the respective date/order of appointment including promotions and all consequential benefits in preference to their juniors. This shall be done within a period of 2 months from the date of receipt of a copy of the judgment.
Sd/-
(P.V.ASHA, JUDGE) rtr/