IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 OP.No. 18803 of 2000(L) ----------------------- PETITIONER(S): --------------- THE MUSLIM EDUCATIONAL SOCIETY (REGD.), CALICUT, REP. BY ITS GENERAL SECRETARY. BY ADV. SRI.A.A.ABUL HASSAN SMT.S.SALINI RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE CALICUT UNIVERSITY, REP. BY ITS REGISTER, UNIVERSITY CAMPUS, THENHIPPALAM, CALICUT UNIVERSITY P.O. ADV. SRI.S.GOPAKUMARAN NAIR, SC, CALICUT UTY GOVERNMENT PLEADER SRI. M.R. SABU. SRI.E.S.ASHRAF, SC, CALICUT UNIVERSITY FOR R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ALONG WITH OP NO. 23091 OF 1999 ON 06/11/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 18803/2000. ---------------------------------------------------------------- EXT.P1 TRUE COPY OF PROFORMA DT. 16-11-1981. EXT.P2 ORDER DT. 23-7-1999. EXT.P3 COPY OF REPRESENTATION. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. Nos. 23091/99 & 18803/2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 6th November, 2008. J U D G M E N T The petitioners in these two original petitions are All Kerala Private College Managements Association and two educational agencies which are running aided colleges in the State of Kerala, affiliated to various Universities. They are challenging the validity of Ext. P2 norms issued by the Calicut University for selection/appointments/approval of appointments of teachers in private colleges affiliated to the Calicut University . They are particularly aggrieved by Appendix III of the norms, wherein norms are laid down for awarding marks under different heads and ranking of candidates in the selection for the purpose of direct recruitment of teaching staff in private colleges. The appendix reads thus: “ APPENDIX – III Norms governing the awarding of marks under different head and ranking of candidate in the selection list for the purpose of direct recruitment of teaching staff in private colleges. Scheme of weightage Total 100 marks. (I) Academic qualification 40 marks (II) Publications 15 marks (3 marks for each paper) (III) Interview 25 marks (IV) Teaching Experience (3 marks for each year) 15 marks (V) Additional Degree 5 marks ------------------- Total 100 marks ======== Note: The undermentioned guidelines have been laid down for assessing the candidates on each of the above items. Candidates with consistently good academic record with I class through out or Ph.D. M.Phil, M. Litt., D.Litt., D.SC. etc. has to be taken O.P.Nos. 23091/99 & 18803/2000 -: 2 :- note of in the reckoning of marks out of the 40 marks set apart for academic qualification. Split up details of marks in respect of qualification Ist Class and above in P.G.Degree 20 Marks. I Class I Rank 25 Marks I Class II Rank 23 Marks I Class III Rank 22 Marks NET Nil NET + M.Phil 5 Marks M.Phil (before 92) Nil P.Hd (before 93) 10 marks UGC/JRE/SRE/Conferred Ph.D etc. 10 Marks III Interview: (a) 10 Marks may be set apart exclusively for the subject expert. (b) 15 marks for all other members put together. While awarding the marks set aside for the interview, the Selection Committee may take into consideration such factors as the performance of the candidate in the interview teaching/research experience; published papers-extra-curricular achievement, etc. The marks awarded under different heads will be finally totalled by the Committee and this shall be the basis for ranking candidates in the selection list. No person shall be a member of the Selection Committee if any of his relatives is an applicant for the post in succession.” 2. The petitioners challenge the above norms on two grounds. The first is that the University has no powers under the Calicut O.P.Nos. 23091/99 & 18803/2000 -: 3 :- University Act and Statutes to prescribe such norms and therefore the norms are ultra vires the Calicut University Act and Statutes thereunder. The second is that the same is arbitrary in so far as the same does not give adequate importance to the will of the appointing authority, namely, the manager of the college. The contention is that if these norms are to be followed, then the selection process itself is a mechanical process for which even a selection committee is not required. Any person can look at the qualifications and select teachers accordingly denying the appointing authority the chance of selecting meritorious and teachers suitable to the particular college, is the contention raised. 3. The University has filed a counter affidavit in which they seek to justify the norms as a regulation, although the same is styled as norms. According to them, the norms are regulations framed by the University in exercise of powers conferred on the syndicate. Therefore, according to them, notwithstanding the nomenclature, the same is valid regulations. Regarding the second contention, the University would contend that there is absolutely no arbitrariness in fixing the norms which are under challenge in these original petitions. According to them, the marks are fixed based on very intelligible criteria. In fact, it would help to avoid any arbitrariness in the selection as a result of which the selection proceedings would be transparent. They would further submit that out of 100 marks, 25 marks are prescribed for interview, which, going by the Supreme Court decisions on the subject, is very adequate. They would therefore submit that the norms do not suffer from the vise of arbitrariness as alleged by the petitioners. O.P.Nos. 23091/99 & 18803/2000 -: 4 :- 4. I have considered the rival contentions in detail. 5. First of all, it must be noted that the situation in Kerala regarding appointment of teachers in aided colleges is something unique in so far as the appointing authority is the manager of the aided school whereas the salary and allowances are paid by the Government. In such circumstances, I am of opinion that the selection of competent teachers who are to be paid by the Government cannot be left to the absolute subjective satisfaction of the managers alone. Therefore, it is necessary that appropriate norms are to be fixed for such selection to avoid any arbitrariness, nepotism etc., on the part of the appointing authority. On a reading of the appendix, which is under challenge before me, I do not find anything arbitrary or irrational or unreasonable in any of the norms therein. The norms disclose very intelligent criteria which, in fact, would help to avoid all kinds of arbitrariness and would make the selection transparent. The various aspects mentioned in the Appendix for which marks are allotted are very relevant for deciding the merits of the candidates and the allocation of marks are also in keeping with the objects sought to be achieved. At the same time, it would give sufficient involvement of the managers also in the selection process. As such, I do not find any merit whatsoever in the contention of arbitrariness or unreasonableness in the norms fixed as per the Appendix III. 6. Regarding the other contention, about the validity of the norms itself as a regulation, I am of opinion that even assuming that the same cannot be justified as a regulation, the same can certainly be justified as an executive order, which does not run counter to any of O.P.Nos. 23091/99 & 18803/2000 -: 5 :- the provisions of the Act and Statutes. It is settled law that the field not covered by a legislation can be governed by executive orders in so far as the same is not inconsistent with any provisions of the statute. Therefore, I do not find any merit in that contention also. In the above circumstances, I do not find any merit in the contentions in the original petitions and accordingly, they are dismissed. Sd/- S. Siri Jagan, Judge. Tds/