IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 1ST JANUARY 2008 / 11TH POUSHA 1929 WP(C).No. 7926 of 2004(R) -------------------------------- PETITIONER: ---------------- SATHEESH E.K. SREELAKSHMI, PALLIKKAL PO, MALAPPURAM DISTRICT 673 653, LECTURER, DEPARTMENT OOF COMMERCE, N.S.S.COLLEGE, MANJERI. BY ADV. SRI.ALEXANDER THOMAS RESPONDENTS: ------------------ 1. UNIVERSITY OF CALICUT, REP. BY ITS REGISTRAR,CALICUT UNIVERSITY POST 673 635. 2. SELECTION COMMITTE, REP. BY VICE-CHANCELLOR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY POST 673 635. 3. DR.E.P.SAINULABDEEN, DEPARTMENT OF COMMERCE, UNIVERSITY OF CALICUT,CALICUT UNIVERSITY POST 675 635. 4. SHEENA, GUEST LECTURER, DEPARTMENT OF COMMERCE, FERROKE COLLEGE, FEROKE COLLEGE P.O. CALICUT. BY ADV. SRI.S.GOPAKUMARAN NAIR, SC, CALICUT UTY SRI.M.RAMESH CHANDER SRI.M.C.SEN (SR.) SRI.E.S.ASHRAF, SC, CALICUT UNIVERSITY SRI.P.C.SASIDHARAN, SC, CALICUT UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/12/2007, THE COURT ON 01.01.2008 DELIVERED THE FOLLOWING: W.P.(C) NO.7926/2004 APPENDIX PETITIONER'S EXHIBITS EXT.P1:- COPY OF THE NOTIFICATION DT. 1.9.03 ISSUED BY THE IST RESPONDENT. EXT.P2:- COPY OF THE MEMO DT. 21.1.04 ISSUED BY THE IST RESPONDENT TO THE PETITIONER. EXT.P3:- COPY OF THE MEMO DT. 21.1.04 ISSUED BY THE IST RESPONDENT TO THE PETITIONER. EXT.P4:- COPY OF THE ORDER NO.GA.II/E1/3265/95 DT. 11.11.97 ISSUED BY THE IST RESPONDENT. EXT.P5:- COPY OF THE G.O.(P) 171/99/H.EDN. DT. 21.12.1999. EXT.P5:- COPY OF THE JUDGMENT DT. 12.8.03 IN OP. 16620/02. EXT.P6:- COPY OF THE JUDGMENT DT. 13.10.04 IN WA. 1592/03. EXT.P7:- COPY OF THE PROCEEDINGS DT. 16.11.04 OF THE SYNDICATE MEETING . EXT.P8:- COPY OF THE MEMO NO.GA II/C1/915/04 DT. 2.4.04. EXT.P8(a):- COPY OF THE PROCEEDINGS NO. GA II/C1/915/04 DT. 17.5.04. EXT.R1(a):- COPY OF THE MINUTES OF THE SELECTION COMMITTEE FOR THE POST OF LECTURER IN COMMERCE. EXT.R1(b):- COPY OF THE MINUTES OF THE SELECTION COMMITTEE FOR THE POST OF READER IN COMMERCE. EXT.R3(a):- COPY OF THE COMMUNICATION DT. 28.1.04 OF THE REGISTRAR UNIVERSITY OF CALICUT. EXT.R3(b):- COPY OF THE COMMUNICATION DT. 26.2.04 OF THE REGISTRAR UNIVERSITY OF CALICUT. EXT.R4(a):- COPY OF THE NOTIFICATION DT. 13.8.02. /TRUE COPY/ P.A. TO JUDGE tss S.SIRI JAGAN, J. ====================== W.P.(C).No.7926 of 2004 ====================== Dated this the 1st day of January, 2008 J U D G M E N T In this writ petition the petitioner challenges the selection and appointment of the 4th respondent to the post of Lecturer in Commerce and Management Studies in the University of Calicut, which according to him, is overlooking the better claim of the petitioner, on the grounds that the constitution of the selection committee is not in accordance with the statutes and the award of marks to the candidates is not in accordance with the guide lines prescribed, mala fide and discriminatory. 2. The petitioner applied for the posts of Lecturer as well as Reader. The selection was to be made on the basis of interview by a selection committee constituted for the purpose. As per the Statutes applicable, the Selection Committee was to consist of the Vice Chancellor, the Head of the department, one member of the Syndicate nominated by the Vice Chancellor and two experts in the subject of the post to which the selection is to be made. Marks were to be awarded in the interview by the w.p.c.7926/04 2 Selection Committee as per the index marks fixed in Ext.P4 order of the University which contained the guidelines approved by the Academic Council of the University for that purpose. On 25.4.2004, interviews were fixed for the posts of Professor, Reader and Lecturer. The Selection Committee constituted for the interviews consisted of the Vice Chancellor, two subject experts, namely, Dr.Surya Rao, and Prof.Manickam, Dr.Sarada, Head of the Department of Commerce, Dr.E.P.Sainul Abdeen and Sri.Balakrishnan Kidave, a Syndicate member, apart from the Registrar of the University. After the interview for the post of Professor, one of the subject experts, Dr.Surya Rao, left and the interview for the post of Reader was conducted by the rest of the Selection Committee members. For paucity of time the interview for the post of Lecturer could not be conducted on that day and postponed to the next day. However, at the request of one candidate for the post of Lecturer namely, Smt.Lali Chandran, she was interviewed by that Selection Committee on 25.2.2004. The interview for the rest of the candidates for the post of Lecturer was adjourned to 26.2.2004. On that day, Sri.E.P.Sainul Abdeen was left out from the Selection committee and the rest of w.p.c.7926/04 3 the Selection Committee out of those who conducted the interview for the post of Reader and Smt.Lali Chandran, conducted the interview, for the post of Lecturer. After the interview the 4th respondent was selected for the post of Lecturer which selection is under challenge in this writ petition. 3. The petitioner contends firstly that the constitution of the Selection Committee is against the statutes in so far as the there was only one subject expert as against two required as per the statutes and all the selection committee members who interviewed Smt.Lali Chandran on 25.2.2004 were different from those who interviewed the rest of the candidates on 26.2.2004, thus vitiating the interview for lack of uniformity in awarding marks. Secondly, the petitioner contends that although the index marks were prescribed for the posts of Reader and Lecturer, the marks awarded to him for the two posts of Reader and Lecturer for both of which he appeared, for qualifications, publications, teaching experience and additional degree vastly differed and were not in accordance with the index marks prescribed by Ext.P4 University order. According to him, the marks awardable to him for qualifications, experience and publications (even w.p.c.7926/04 4 leaving out the marks for interview) far exceeded the marks obtained by the 4th respondent and therefore, the selection is vitiated. He also alleges mala fides on this ground. 4. The respondents 1 and 2 have filed a statement and a counter affidavit. In the same, they submit that Dr.E.P.Sainul Abdeen had been included in the Selection Committee for the post of Professor under SC/ST quota, since the Head of the department was only a Reader and the Statute stipulated that the Head of the department, can be a member of the Selection Committee only if the post to which selection is made is not of the higher rank than the post held by the Head of the department. According to them, Dr.Surya Rao left after the interview for the post of Professor and the interview for the post of Reader was conducted by the Committee consisting of the Vice Chancellor, Prof.Manickam, Dr.A.K.Sarada and Sri.K.Balakrishnan Kidave. They also admit that Smt.Lali Chandran was also interviewed on 25.2.2004. They also state that on 26.2.2004 Sri.Balakrishnan Kidave was substituted by another Syndicate member Sri.V.P.Abdul Hameed. According to them, since Dr.A.K.Sarada was also an expert in the subject, she along with w.p.c.7926/04 5 Prof.Manickan constituted the two subject experts as provided in the Statute. They justify the evaluation and award of marks to the candidates by such committee as valid and proper. 5. The said Sri.Sainul Abdeen has been impleaded as the 3rd respondent in this writ petition and he has filed a counter affidavit supporting the averments of the petitioner regarding his participation in the interview for the post of Reader and the interview of Smt.Lali Chandran, apart from the post of Professor. According to him, he was nominated by Ext.R3(a) as member of Selection Committee for all three posts and he participated as a member of the Selection Committee for the posts of Professor, Reader and for the post of Lecturer in respect of one lady candidate. He further submitted that he expressed the opinion that certain candidates for the post of Reader were lacking in basic qualifications and that when he arrived for the interview on 26.2.2004 he was given Ext.R3(b) letter stating that since he was nominated only to the Selection Committee for Professor, for the selection to the post of Lecturer he need not attend. 6. The 4th respondent has filed two counter affidavits. She supports the University on the issue of constitution of the w.p.c.7926/04 6 selection Committee. She questions the validity of Ext.P4 order fixing index marks and submits that the selection should have been made taking into account the marks for the interview alone in which case she, who got much higher marks in the interview than the petitioner, was rightly selected. 7. The respondents 1 and 2 have, along with I.A.No.14647/2007 produced the minutes of the Selection Committees for the posts of Lecturer and Reader as Exts.R4(a) and R4(b). 8. Originally the writ petition was disposed of by another learned Judge as per judgment dated 1.8.2007 without hearing the 4th respondent. Later on, by order in I.A.No.13884/2007 filed by the 4th respondent, that judgment was recalled and the writ petition was re-posted for hearing. It is thus that this writ petition has come up before me for hearing. 9. I have considered the rival contentions in detail. 10. Before going into the contentions of the parties, I must state that going by the documents available, the way in which the University has gone about conducting the interview leaves much to be desired, to say the least. w.p.c.7926/04 7 11. The constitution of the Selection Committee is governed by statute 4 of Chapter 3 of the Calicut University First Statues 1977 (hereinafter referred to as 'the 1977 Statutes'), which reads thus; “4. Selection Committee for appointment of teachers: (1) When posts are to be filled up after inviting applications by advertisement, the applications received shall be referred to a Selection Committee consisting of the following persons, namely; (i) The Vice Chancellor, who shall be the ex-officio Chairman of the Committee:- (ii) (a) For the post of Professor:- The Head of the Department in the rank of Professor, if any, in the subject concerned if the selection is made to an additional post of Professor. Where there is no University Professor in the subject one more additional expert shall be nominated by the Syndicate. (b) For the posts of Reader, Lecturer, etc. - The Head of the Department in the subject concerned, provided the post for which selection is made is not of a higher rank than the post held by the Head of the Department. (iii) One member of the Syndicate nominated by the Vice- Chancellor. (iv) (i) two experts in the subject in which the appointment is to be made. In the case of the post of Professor in a department where there is no Professor already one more expert nominated by the Vice-Chancellor. (2) No member of the Committee who is an applicant for the post or is related to or interested in any of the applicants for the post shall take part in the deliberations of the Committee, so far as the post is concerned.” According to the University, although sub clause (iv) of Statue 4 w.p.c.7926/04 8 (1) stipulates two subject experts, the Head of the Department was also an expert in the subject, if there is one more subject expert, the quorum for the selection committee would be satisfied and therefore, the constitution of the Selection Committee cannot be faulted. The 4th respondent adds to the same by arguing that in the absence of any stipulation in the statute that the quorum shall consist of the members stipulated in the statute 4(1)(iv)(i), unlike in the case of selection committee for selection of teachers in private colleges as per statute 4 of the Calicut University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes 1979 (hereinafter referred to as 'the 1979 Statutes'), which stipulates that the quorum shall consist of subject expert also, the majority of the Selection Committee would constitute valid quorum, even in the absence of the subject experts. 12. I am unable to countenance both contentions. For easy reference I shall extract the relevant portions of Statute 4 of the 1979 Statues also. Sub clauses (1) and (2) of Clause 4 of the said Statutes read thus: “4. Constitution of Selection Committee for Appointments:- w.p.c.7926/04 9 (1) In order to ensure that appointments of teachers by direct recruitment are on the basis of merit such appointments shall be made by the Educational Agency from a panel of three names for every vacancy recommended by a Selection Committee constituted by the Educational Agency and consisting of the following members namely:- (a) two representatives of the Educational Agency nominated by it, one of whom shall be the Chairman of the Selection Committee; (b) the Principal of the College; (c) the Head of Department in the subject concerned; and (d) one expert in the subject nominated by the Vice- Chancellor. (2) Three members including the member referred to in item (d) shall constitute the quorum for a meeting of the Selection Committee.” Sub clause 3 of Statute 4 relates to selection by an Educational Agency which has voluntarily entered into direct payment agreement with the Government, for whom a Government nominee shall also be a member of the selection committee as per sub clause (c) in addition to the subject expert as per clause (d). Clause 5 relating to quorum of the selection committee thereafter stipulates thus: “5. Quorum for meetings:- (1) The quorum for the meetings of the selection committee constituted under clause (3) of the Statute 4 shall be three and shall include the member referred to in item (c) and item (d) of the said clause: Provided that in the case of Oriental Title Colleges, the member referred to in the first proviso to sub-clause (c) of clause(3) of Statute 4 shall be present to constitute valid quorum. w.p.c.7926/04 10 (2) If the meeting fixed for a day cannot be held for want of quorum or owing to the absence of one or both of the members referred to in terms (c) and (d) of the said clause, the meeting shall stand adjourned and shall be held on the same day in the following week at the same place and time and such adjourned meeting shall be considered to be valid even if either or both of the aforesaid members is or are not present. (3) If the member referred to in item (c) or item (d) of clause (3) of Statute is likely to be absent on leave or otherwise so as to render him unable to attend two consecutive meetings of the committee, he shall intimate the Educational Agency and the Government or the University, as the case may be, sufficiently early and it shall be the duty of the Educational Agency to choose a substitute in the manner mentioned in the said item (c) or item (d), as the case may be, and no other meeting of the Selection Committee shall be held until the substitute is chosen and notice of the next meeting is given to him.” 13. Regarding the contention raised by the University that even without the 2nd subject expert the constitution of the Selection Committee is proper, I am of opinion that the statute does not admit of such an interpretation. Sub clause 1(b) of the Statute 4 of the 1977 Statutes specifically states “the Head of the Department of the subject concerned”. Sub clause (iv)(1) stipulates two subject experts in addition to the Head of the Department. The framers of the Statute intended two subject experts in addition to the Head of the Department of the subject concerned and not merely two subject experts. Subject experts are the most important constituent of the Selection Committee w.p.c.7926/04 11 because in the interview primarily the knowledge of the candidates in the particular subject has to be assessed, which can be done only by the subject experts and not by the other members. 14. The acceptance of the contention raised by the 4th respondent would lead to dangerous and anomalous results. If the quorum consists of the three members other than the two subject experts, then the Vice Chancellor and the Syndicate member who may not have any knowledge of the subject would be the deciding factor. According to me, when subject experts are included in Selection Committees, the quorum should specifically include them also, as is made clear in the 1979 Statues. The basic principle for selection as per the 1979 Statues applicable to private colleges should be made applicable to selection to University departments also, especially since basically there is no difference in the posts to which selections are made under the two statutes. It would ensure better transparency in the selections also. Constitution of the Selection Committee without the two subject experts is therefore against the Statute. 15. The petitioner has averred in the writ petition that the w.p.c.7926/04 12 3rd respondent was a member of the Selection Committee on 25.2.2004 and he was not present on 26.2.2004. This is not controverted specifically by respondents 1 and 2, although they state that the 3rd respondent was a member of the Selection Committee for the post of Professor only. The 3rd respondent filed his counter affidavit on 15.5.2004 in which he has stated that he was appointed as Selection Committee member for all three posts and that he took part in the interview for the posts of Professor, Reader and Lecturer (in the case of a lady candidate), but he was not allowed to sign the minutes as decided earlier. The respondents 1 and 2 chose to file a counter affidavit on 1.3.2005 and also later filed an affidavit in support of the petition to accept Exts. R1(a) and R1(b) minutes of the Selection Committee, in both of which they have not chosen to controvert the averments in the counter affidavit of the 3rd respondent. Assuming that the copy of the counter affidavit may not have been served on them (as usually in writ petitions copies of counter affidavits of respondents are served only on the petitioner) in the judgment dated 1.8.2007, the affidavit of the 3rd respondent was specifically extracted. In fact I.A.No.14647 of w.p.c.7926/04 13 2007, seeking to accept Ext.R1(a) and R1(b) minutes of the Selection committee was filed only on 24.10.2007, much after the earlier judgment, in which also the averments of the 3rd respondent are not controverted. The 4th respondent also has not chosen to controvert the same. The said counter affidavit of the 3rd respondent reads thus: “2. I was nominated to the selection committee constituted for the selection of Lecturer/Readers/Professor in the Department of Commerce and Management Studies of the University of Calicut. The decision of the Vice Chancellor in the above regard was communicated to me vide communication No.Rt/1096/2003 dated 28.01.2004. 3. The interview for the posts were proposed to be held at 3.30 p.m. on 25.2.2004. The selection committee consisted of the Vice Chancellor, two subject experts (Dr.Surya Rao and Prof.Manickam), Dr.Sarada (head of the department) Sri.Balakrishnan Kidavu (Syndicate member) and myself. 4. Due to lack of planning and co-ordination the interview could not be completed as scheduled. Therefore, the interview for the post of Lecturer was postponed to 26.2.2004. After completing the interview for the post of Professor one subject expert Dr.Surya Rao left and the interview was continued in his absence. Thereafter one lady candidate for the post of Lecturer was interviewed, as she wanted to leave on the very same day. 5. Thereafter, the interview for the post of Reader was commenced. Since most of candidates appearing for the post of Reader were lacking basic qualifications, I objected to considering of their names. By the time the interview was completed it was very late and it was decided to minute the decision of the selection committee on the succeeding day. 4. When I arrived on 26.2.2004 for attending the interview the Registrar of the University informed me that I am not included in the selection committee for the post of Reader and Lecturer and a letter to the effect was handed over to me. To my knowledge the w.p.c.7926/04 14 selection committee which interviewed the candidates for the post of Lecturer on 26.2.2004 consisted of Vice Chancellor, Prof.Manickam (Subject Expert), Dr.Sarada (head of the department) and V.P.Abdul Hameed (Syndicate member) I was not even allowed to sign the minutes of the proceedings on 25.2.2004 as decided earlier. As a member of the selection committee I had acted bonafide, to the best interest of the University and the student community. 16. In Ext.R1(a) minutes of the Selection Committee for the post of Lecturer, the following are the members. (1) The Vice Chancellor (Ex-officio Chairman) - Sd/- (2) Dr.A.K.Sarada, Head, Department of Commerce, University of Calicut.- Sd/- (3) Sri.V.P.Abdul Hameed, Syndicate Member, Sd/- (4) Dr.Surya Rao (Expert), Head, Department of Management Studies, Madurai Kamaraj University- Not present. (5) Prof.M.Manickam (Expert) Head, Department of Commerce, Bharathiyar University - Sd/- (6) The Registrar (Secretary) University of Calicut. - Sd/- In Ext.R1(b) minutes of the Selection Committee for the post of Reader except Sl.No.3, all others are the same, Sl.No.3 being Sri.Balakrishnan Kidavu, Syndicate Member. 17. The affidavit of Sri.Sainul Abdeen remaining uncontroverted, since he had participated in the interview for Reader as well as for one lady candidate for the post of Lecturer, his signature should have been there in both the minutes for w.p.c.7926/04 15 selection to the post of Reader and that of Lecturer. So also since Sri.Balakrishnan Kidavu had admittedly participated in the interview of Smt.Lali Chandran, for whom also marks have been awarded in Ext.R1(a), he also should have signed Ext.R1(a) minutes. In the absence of their signatures in Ext.R1(a), the selection as per Ext.R1(a) is clearly unsustainable. 18. Further, Smt.Lali Chandran was interviewed by a Selection Committee consisting of Sri.Sainul Abdeen and Sri.Balakrishnan Kidavu, whereas the other candidates were interviewed by a committee omitting Sri.Sainul Abdeen and replacing Sri.Balakrishnan Kidavu by Sri.V.P.Abdul Hameed. Naturally, as contended by the petitioner, the evaluation of the candidates would not be uniform because two members are different. For this reason also the selection is improper. The reliance of the 4th respondent in the decision of Ishtar Chandra v. Satyanarayanan Shina (AIR 1972 SC 1812) in support of her contention that in the absence of any rule or regulation for fixing the quorum of a selection committee the presence of majority of members would constitute a valid meeting cannot be countenanced since the same is clearly distinguishable on facts. w.p.c.7926/04 16 That case is related to selection of Vice Chancellor, in which there is no relevance for a subject expert. The 4th respondent also relies on the decision in Union of India and others v. Boundaries Anathema's and others [(1989) 1 CC 175] in support of her contention that bona fide absence of a member of the Selection Committee due to his official engagements would not be fatal to the proceedings. I am not satisfied that, the said decision also has any application to the facts of the case. That case relates to meeting of a Departmental Promotion Committee for the purpose of considering candidates in the feeder category for promotion. No interview is contemplated in such promotion and there is no relevance for a subject expert there. Here the subject expert has a decisive role to play in the selection, whose absence would certainly affect the quality of the selection itself. That is why in the 1979 statutes the quorum prescribed is to mandatorly include the subject expert, since the role of the subject expert cannot be played by the other members. The spirit of the 1977 statute also contemplates a decisive role w.p.c.7926/04 17 for both subject experts which cannot be substituted by other members of the Selection Committee. For better transparency in selection also the presence of the subject experts is mandatory. 19. The next question is regarding the discrepancy in the marks awarded to the petitioner as per Ext.P4 for the posts of Reader and Lecturer. The petitioner possesses the educational qualifications of 1st Class Master's Degree in Commerce and Ph.D. in Financial Services Marketing from Calicut University. He has teaching experience from 1995 and has 6 published works to his credit. As per Ext.P4 the index marks prescribed for selection of Lecturers in the