IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 WP(C).No. 24261 of 2007(L) -------------------------- PETITIONER: -------------- C.V.AMBUJAN, AGED 42, S/O. M.K.GOPALAN NAIR, OVERSEER GR-I(CIVIL), ENGG. DIVISION, KELAPPAJI COLLEGE OF AGCRL. ENGG. & TECHNOLOGY, KERALA AGRCL. UTY. CAMPUS, TAVANUR, NOW WORKING AS TECHNICAL ASST./TRAINING ASST.,KRISHI VIGYSN KENDRA, KERALA AGCRL. UTY. CAMPUS, TAVANUR. BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENTS: ---------------- 1. THE KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY ITS REGISTRAR. 2. SUMA NAIR, ELNIKKAL HOUSE, P.O.KARUVAMBRUM, MANJERY, MALAPPURAM-676 123. R1 BY SRI.RENJITH THAMPAN,SC,KERALA AGRL.UTY R2 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.S.A.ANAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 24261/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE PROCEEDINGS NO.GA/01/20718/95 DATED 9.9.96 ISSUED BY THE 1ST RESPONDENT. EXT.P2 : TRUE COPY OF THE GAZETTE NOTIFICATION NO.GA/E3/40644/96 DATED 22.2.05. EXT.P3 : TRUE COPY OF THE CIRCULAR NO.CA/K3/421168/05 DATED 27.2.06 ISSUED BY THE 1ST RESPONDENT. EXT.P4 : TRUE COPY OF THE NEWS ITEM IN DESABHIMANI DAILY DATED 14.2.07. EXT.P5 : TRUE COPY OF THE COMPARATIVE LIST OF THE SERVICE PARTICULARS OF THE PETITIONER AND THE 2ND RESPONDENT. EXT.P6 : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN WPC : 13971/07 DTD.9.6.07. EXT.P7 : TRUE COPY OF THE JUDGMENT IN WPC 13971/07 DATED 18.6.07. EXT.P8 : TRUE COPY OF THE ORDER NO.GA/A3/24343/2007 DTD.4.8.07. EXT.P9 : TRUE COPY OF THE NOTIFICATION NO.GA/A3/42168/2005 DATED 3.8.07. EXT.P10 : TRUE COPY OF THE ORDER NO.GA/A3/9971/96 DATED 18.3.96. RESPONDENTS' EXHIBITS: EXT.R1(A) : TRUE COPY OF THE NOTE TO EXECUTIVE COMMITTEE OF KERALA AGRICULTURAL UNIVERSITY. EXT.R1(B) : TRUE COPY OF THE NOTICE DATED 5.5.07 OF THE KERALA AGRICULTURAL UNIVERSITY. EXT.R1(C) : TRUE COPY OF THE LETTER DATED 2.6.07. EXT.R1(D) : TRUE COPY OF THE NOTE SHOWING THE ENDORSEMENT OF THE REGISTRAR. EXT.R1(E) : TRUE COPY OF THE ORDER DATED 4.8.07 OF THE UNIVERSITY. EXT.R2(A) : TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE DIRECTOR OF RESEARCH I/C DATED 26.5.05. EXT.R2(B) : TRUE COPY OF THE CERTIFICATE DATED 2.5.03. WPC : 24261/07 EXT.R2(C) : TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY DR.P.S.GEETHAKUTTY, ASSOCIATE PROFESSOR & PROJECT CO-ORDINATOR, CENTRE FOR STUDIES ON GENDER CONCERNS IN AGRICULTURE KAU, VELLANIKKARA. EXT.R2(D) : TRUE COPY OF THE CERTIFICATE DATED 27.9.95. EXT.R2(E) : TRUE COPY OF THE M.TECH DEGREE CERTIFICATE DATED 4.12.99. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 24261 OF 2007 ------------------------------------------------- Dated this the 8th day of June, 2009 JUDGMENT The petitioner is an aspirant for appointment to the post of Assistant Engineer(Agricultural Engineering) in the Kerala Agricultural University(KAU). He is working as an Overseer Grade I (Civil) in the Engineering Division of the Kelappaji College of Agricultural Engineering and Technology situated in the KAU campus. By Ext.P3 notification the 1st respondent invited applications for selection to the post of Assistant Engineer (Agricultural Engineering). The essential qualification prescribed was B.Tech degree in Agricultural Engineering. A desirable qualification was also incorporated in Ext.P3, which is field experience in Agricultural Engineering in KAU or any other institutions recognised by KAU. The petitioner possesses B.Tech degree and has 15 years and 6 months of field experience in the KAU itself. The petitioner applied for the post. The 3rd respondent was also an applicant for the post. The 3rd respondent was an Assistant Grade II in the University itself and was appointed as such on 04.01.06. Ext.P3 notification WPC : 24261/07 -:2:- was issued on 27.02.06. 2. Apprehending that, overlooking the better claims of the petitioner, the 3rd respondent is going to be appointed to that post, the petitioner filed WP(C) No.13971/07. In that writ petition Ext.P6 counter affidavit dated 19.06.07 was filed by the University, wherein it was stated that minutes of the selection committee was placed before the executive committee for approval and the selection process is not yet over. Therefore the University submitted that the writ petition is premature. On that basis by Ext.P7 judgment, the petitioner was permitted to withdraw the writ petition with liberty to approach this Court again if situation so warrants. Thereafter, on 04.08.07 Ext.P8 order was passed appointing the 2nd respondent in the post. Ext.P9 rank list was published on 03.08.07 based on which Ext.P8 order was passed. In Ext.P9 it is stated that the rank list was based on the recommendation of the selection committee meeting held on 14.02.07, which was approved by the executive committee meeting held on 28.04.07. Since on 19.06.07 the University submitted before this court that the selection has not been finalised and the executive committee had approved the rank list on 28.04.07, WPC : 24261/07 -:3:- the petitioner alleges mala fides on the part of the 1st respondent. It is under the above circumstances the petitioner has filed the writ petition seeking the following reliefs: “i. to issue a writ of certiorari or other writ order or direction calling for the records leading to Ext.P8 and P9 and quash them both; ii. to declare that the 2nd respondent is not eligible to be considered/appointed as Assistant Engineer(Agrl. Engineering) pursuant to Exts.P2 & P3 and that the petitioner is eligible and is to be appointed as Assistant Engineer(Agrl. Engineering) pursuant to Exts.P2 & P3; iii. to declare that a person can be termed as an employee only if he is a regular employee and that one gets the status of a regular employee only after the probation is declared; iv. to issue a writ of mandamus or any other appropriate writ order or direction commanding the 1st respondent to appoint the petitioner as Assistant Engineer(Agrl. Engineering) forthwith;” 3. The contention of the petitioner is that the entire action of the 1st respondent in selecting and appointing the 2nd respondent is dubious. The petitioner would contend that the 2nd respondent does not have the desirable qualification mentioned in the notification whereas the petitioner has more than 15 years of desirable qualifications. The only educational qualification prescribed is B.Tech in Agricultural Engineering, which both of them possessed. WPC : 24261/07 -:4:- Based on such qualifications petitioner would argue that the petitioner is better qualified to be selected insofar as he had 15 years and 6 months of field experience which is a desirable qualification, whereas the 2nd respondent’s only additional qualification is M.Tech. He would therefore seek quashing of Exts.P8 and P9. 4. The University has filed a statement and affidavit as directed by this Court. They would submit that the entire selection was conducted validly and properly. According to the University, it was after obtaining legal advice from the Standing Counsel for the University that the University has approved the selection by the selection committee. According to them, after the selection committee submitted its report, as evidence by Ext.R1(b), the executive committee in its meeting held on 28.04.07 authorised the Registrar to take a decision on the same after getting legal advice. Ext.R1(c) legal advice was furnished by the Standing Counsel and based on the same the Registrar opened the minutes of the selection committee meeting on 03.08.07, which is Ext.R1(d). On opening of the same it was found that the 2nd respondent was the first rank holder. It is based on the same, 2nd respondent was appointed on WPC : 24261/07 -:5:- 04.08.07 is the contention raised by the University. 5. The 2nd respondent would contend that she also holds the desirable qualifications as evident from Exts.R2(a), R2(b), R2(c) and R2(d). She would submit that since she holds Post Graduate degree also, she is in any way superior to the petitioner and therefore there is nothing wrong in the selection and appointment of the 2nd respondent to the post. 6. Pursuant to a direction on 28.5.09 the files relating to the selection has been produced before me. In the file it was found that a sub-committee was constituted for deciding the criteria for internal selection to the post of Assistant Engineer(Agricultural Engineering) from among employees of the KAU, which on 11.09.06, fixed the criteria for selection. Minutes of that meeting is found in page 113 of file No.GA/K3/42168/05 produced by the University. In the same the committee decided to apportion the marks fixed for selection as given below: “1. Bachelor's degree (As per the OGPA) : 15 marks 2. Higher qualification (As per the OGPA) : 5 marks 3. Outstanding achievements/ rank/etc. : 5 marks WPC : 24261/07 -:6:- 4. Experience : 10 marks 5. Publication like books/ research or popular articles etc. : 5 marks 6. Interview : 10 marks ----------------- Total : 50 marks” ========== 7. Since that decision was taken long after the last date fixed for receipt of applications i.e., 13.03.06, I directed the Standing Counsel for the University to inform this Court as to whether the criteria fixed by the sub-committee was informed to the candidates who applied for the post in advance. Today, the learned Standing Counsel on instructions submits that, it was not. Along with the files two covers were also produced before me. One cover was sealed and other cover was opened, which contained the original of Ext.R1 (d) minutes of the selection committee meeting. The other cover still remains sealed. The cover contains the following endorsement: “Score sheet of candidates who attended the interview held on 14.2.07 for the internal selection to the post of Assistant Engineer(Agricultural Engineering) held at KAU Headquarters, Vellianikkara.” 8. According to the learned Standing Counsel the sealed cover WPC : 24261/07 -:7:- contains marks awarded by the members of the selection committee. I specifically asked the Standing Counsel as to how without opening the same the executive committee or the Registrar had come to the conclusion that the marks were properly awarded. The Standing Counsel could not give me any satisfactory explanation. That being so, it remains a fact that the executive committee who is the authority to finalise the rank list of candidates, had not considered the marks awarded by the selection committee before approving the rank list. I am of opinion that, for that reason alone, the selection is liable to be quashed. Apart from that, I do not think that the selection could have been made on the basis of the criteria fixed by sub-committee long after the applications were received from the candidates. Such a procedure would leave room for allegation that the criteria was fixed to favour some candidates who satisfied the additional criteria for which marks were set apart, which did not form part of the notification inviting applications or the recruitment rules. Further this criteria were not disclosed to the candidates, admittedly. It contains marks for various components which were not mentioned in the notification inviting applications or in the recruitment rules. When these WPC : 24261/07 -:8:- components were not mentioned in the notification inviting applications and when criteria were not published for the information of the candidates, the candidates would not be able to respond based on these criteria also, which also would vitiate the selection process. Therefore, I am satisfied that the selection on the basis of such a procedure is not proper. Accordingly, Exts.P8 and P9 are quashed. The University is directed to make fresh selection in accordance with Ext.P3 notification inviting applications without reference to the criteria fixed by the sub-committee but based on the criteria mentioned in the notification inviting applications and the recruitment rules. This shall be done as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The files including the opened and sealed covers submitted before this Court would be returned to the Standing Counsel for the University. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE ttb WPC : 24261/07 -:9:-