IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 WP(C).No. 33281 of 2007(K) ---------------------------------------- PETITIONERS: ---------------------- 1. DR. TANIA FRANCIS, LECTURER, DEPARTMENT OF CHEMISTRY, ST. TERESA'S COLLEGE, ERNAKULAM-11. 2. DR. JAYA T.VARKEY, LECTURER, DEPARTMENT OF CHEMISTRY, ST. TERESA'S COLLEGE, ERNAKULAM. 3. DR. MEENA JAN ABRAHAM, LECTURER, DEPARTMENT OF ZOOLOGY, ST. TERESA'S COLLEGE, ERNAKULAM. 4. MRS. VINITHA T.THARAKAN, LECTURER, DEPARTMENT OF HISTORY, ST. TERESA'S COLLEGE, ERNAKULAM. 5. DR. LIZA JACOB, LECTURER, DEPARTMENT OF BOTONY, ST. TERESA'S COLLEGE, ERNAKULAM. 6. MRS. AVELINE JOAN MEYN, LECTURER, DEPARTMENT OF MATHEMATICS, ST. TERESA'S COLLEGE, ERNAKULAM. 7. MISS. THUSHARA GEORGE, LECTURER, DEPARTMENT OF ECONOMICS, ST. TERESA'S COLLEGE, ERNAKULAM. BY ADV. SRI.KURIAN GEORGE KANNAMTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM Kss ..2/- ...2...... WPC.NO.33281/2007 K RESPONDENTS: --------------------------- 1. M.G. UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS, KOTTAYAM-686560. 2. THE CHAIRMAN (PROF.K.MATHEW), SYNDICAN STANDING COMMITTEE FOR AFFILIATION, M.G. UNIVERSITY, KOTTAYAM-686560 (PROF.DEPARTMENT OF PHYSICS, MAR BASELIOS COLLEGE, KOTTAYAM). 3. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION DEPT., GOVT.SECRETARIAT, TRIVANDRUM – 1. 4. THE DIRECTOR OF COLLEGIATE EDUCATION, TRIVANDRUM. 5. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. 6. THE MANAGER, ST.TERESA'S COLLEGE, ERNAKULAM, COCHIN – 682 311. ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY FOR R1,2 BY GOVERNMENT PLEADER SRI. K.V. MANOJKUMAR – R3 TO R5 ADV. SRI.BABY ISSAC ILLICKAL FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2008 ALONG WITH WPC NO. 34172 OF 2007 AND WPC NO. 33462 OF 2007, THE COURT ON 4/09/2008 DELIVERED THE FOLLOWING: Kss WPC.NO.33281/2007 K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF JUDGMENT DTD. 28/07/2004 IN WP(C) NO.22237/04 OF THIS HON.COURT. EXT.P2: COPY OF LETTER DTD. 3/09/2004 OF THE HIGHER EDUCATION (D) DEPARTMENT. EXT.P3: COPY OF REPRESENTATION DTD. 2/11/2005 TO THE VICE CHANCELLOR OF M.G.UNIVERSITY. EXT.P4: COPY OF COMMUNICATION DTD. 19/12/2005 ISSUED FROM THE REGISTRAR OF M.G.UNIVERSITY. EXT.P5: COPY OF ORDER DTD. 5/03/2007 OF HIGHER EDUCATION(F) DEPARTMENT. EXT.P6: COPY OF JUDGMENT DTD. 16/03/2007 IN WP(C) NO.9487/2006D OF THIS HON.COURT. EXT.P7: COPY OF ORDER DTD. 11/04/2007 IN I.A.5369/07 IN WP(C) NO. 9487/06 OF THIS HON.COURT. EXT.P8: COPY OF NOTICE DTD. 27/10/2007 FROM THE PETITIONERS' COUNSEL TO THE 1ST RESPONDENT. EXT.P9: COPY OF ORDER DTD. 31/10/2007 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE COMPLAINT 21/03/2005 SUBMITTED BY PROF.ANTONY.L.FERNANDEZ BEFORE THE REGISTRAR OF THE UNIVERSITY. EXT.R1(B): COPY OF THE COMMUNICATION DTD. 12/05/205 ISSUED TO THE MANAGER, ST.TERESA'S COLLEGE BY THE UNIVERSITY. EXT.R1(C): COPY OF THE LETTER DTD. 27/05/2005 SUBMITTED BY THE MANAGER TO THE UNIVERSITY. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. =============== W.P.(C) NOS. 33281, 33462 & 34172 OF 2007 ============================= Dated this the 4th day of September, 2008 J U D G M E N T The main prayer in these writ petitions is to quash the order dated 31.10.2007 issued by the Mahatma Gandhi University declining to approve the appointment of lecturers appointed in the St. Teresa’s College, Ernakulam. There is a further prayer to direct the University to grant approval to the appointment of the Lecturers in terms of the provisions contained in the Mahatma Gandhi University Statutes. There are other consequential prayers also. 2. While W.P.(C) Nos. 33281 and 33462 of 2007 are filed by the concerned lecturers, W.P.(C)No. 34172 of 2007 is filed by the Manager and Principal of St. Teresa’s College, Ernakulam. Since the issue involved is identical, these writ petitions are disposed of by this common judgment and for convenience, I shall be mainly referring to the pleadings and documents as they are marked in W.P.(C)No. 33462 of 2007. 3. As per the staff pattern fixed by the University in 2003, there were several vacancies of lecturers in the St. Teresa’s College, WPC 33281, 33462 & 34172/07 :2 : Ernakulam (hereinafter referred to as the ‘Management’ for short). However, the vacancies could not be filled up on account of the failure of the State Government and the University to nominate their representatives to the Selection Committee. The Manager of the College filed a writ petition before this Court as W.P.(C)No. 22237 of 2004 praying for a direction to the State Government and the University to nominate members of the Selection Committee and the writ petition was disposed of by Ext. P6 judgment dated 28.07.2004 directing that required steps be taken for enabling the Manager to fill up the existing vacancies in sanctioned posts. 4. According to the petitioners in order to fill up the existing vacancies in sanctioned posts, Ext.P1 vacancy notification was issued by the Principal of the College, inviting applications to open merit, permanent and leave vacancies, in subjects such as Mathematics, Physics, Chemistry, Botany, Zoology, Home Science, English, Economics, History and Physical Education. The petitioners, being eligible candidates, submitted their applications. It is also stated that in compliance with Ext.P6 judgment the Government of Kerala issued Ext.P7 order dated 03.09.2004, permitting the WPC 33281, 33462 & 34172/07 :3 : Manager to fill up the existing vacancies in sanctioned posts. Thereafter, the State Government and the University deputed their representatives and selection committee was duly constituted. Accordingly, selection was held during February 2005 and select lists were prepared, in which among the petitioners in W.P.(C)No. 33462/2007, petitioners 1 and 2 were included at Rank Nos.2 and 4 against the vacancy in the Chemistry Department. The 3rd petitioner, was Rank No.1 and the 4th petitioner was selected against a leave vacancy, in the Home Science Department. 5. 15 candidates were appointed as lecturers in various departments. In so far as the petitioners in W.P.(C)No. 33462 of 2007 are concerned, Exts.P2 to P5 are the orders of appointment, pursuant to which they joined service on 01.03.2005, 11.03.2005, 23.02.2005 and 07.03.2005 respectively. Petitioners 1 to 3 are continuing in the permanent vacancies to which they were appointed and the 4th petitioner’s leave vacancy, though expired on 31.07.2007, since the leave is continuing, it is stated that she is also continuing in that post. By Ext.P8, the Principal of the College forwarded proposals to the University seeking approval of WPC 33281, 33462 & 34172/07 :4 : appointment of 15 the Lecturers mentioned therein, enclosing necessary documents. 6. University in its counter affidavit has stated that in March 2005 they had received Ext.R4(a) letter dated 31.03.2005 from a person complaining that though his daughter was an applicant for the post of lecturer in Economics and was eligible, the applicants were short-listed as a result of which, his daughter was denied an opportunity to appear before the Selection Committee. According to the University, the Manager was intimated of Ext.R4(a) and by Ext.R4 (b), it was replied stating that there were 33 applicants, that the Principal had short-listed 16 of them for the interview and that they had not done anything against the statutory provisions. Thereafter, by Ext.R4(c) the Manager again informed the University that there were 33 applicants against 3 sanctioned vacancies and that all the applications were scrutinized based on marks in the basic degree, qualifying degree, additional degree, teaching experience, published work, research experience etc., and that 16 candidates were short listed for interview, which was more than 5 times the vacancies. It was also stated that the complainant’s daughter did not come within WPC 33281, 33462 & 34172/07 :5 : the above group and hence was not called for interview. 7. The next communication received by the Management is Ext.P11 informing that the University (Amendment) Act 2005 came into force with effect from 06.01.2005, by which appointments to the posts eligible to receive salary from the Government shall be made only against posts sanctioned by the Government or by such officers as may be authorized by the Government and that the University is not in a position to approve the appointments made after 06.01.2005, till the posts are sanctioned by the Government. Petitioners state that while so, they, along with others filed W.P.(C) No. 9487 of 2006 before this Court for a direction to accord approval to their appointments. Meanwhile, the Manger filed Contempt of Court Case No. 1262 of 2006 complaining of disobedience of Ext.P6 judgment in W.P.(C)No.22237/2004. Pursuant to an order passed in the Contempt of Court Case, the Government issued Ext.P12 order dated 05.12.2007, according approval to the appointments made to 13 posts mentioned therein, effective from the date of the order and clarified that salary will also be payable from that date. In view of Ext.P12, it is stated that W.P.(C) No.9487 WPC 33281, 33462 & 34172/07 :6 : of 2006 was disposed of directing that necessary orders be passed in the light of Ext.P12 and giving liberty to the petitioners to pursue their grievances if any, against the order making their appointment prospective. 8. Subsequently, on 03.05.2007 the University issued Exts.P14 and P15 to the College, alleging violation of the various provisions of the Mahatma Gandhi University First Statutes. According to the Manager on receipt of Ext.P13, they gave Ext.R6 (a) reply, answering the allegations and contending that they had not violated the provisions of the University statutes. University would also say that on receipt of Ext.P15, the Manager submitted Ext.R4 (e), which is also produced by the Manager as Ext.R6(b), once again justifying their action. University would state that after justifying their action, the Manager of the College submitted Ext.R4 (f) apologizing for violating the statutory provisions and requesting to condone the mistakes of the governing body of the College. 9. Thereafter Ext.P16 order dated 31.10.2007 was issued by the University, informing that the Syndicate Standing Committee on Affiliation at its meeting held on 23.10.2007 had resolved that WPC 33281, 33462 & 34172/07 :7 : the appointment of teachers in the College cannot be approved for the following two reasons: “1) That all the eligible applicants were not called for the interview. There is written complaint against the selection process. 2) The Mahatma Gandhi University Statutes 1997, Chapter 45 Part B, Statute 3(1) stipulates that the selection lists should contain three names for every vacancy. In this selection, this statute is found violated by the Management.” 10. In so far as W.P.(C)No. 33281 of 2007 is concerned, the petitioners therein are also lecturers, who were selected in the selection process in which the petitioners in W.P.(C)No. 33462 of 2007 were also selected and appointed and they are appointed in the departments of Chemistry, Zoology, History, Botany, Mathematics and Economics. 11. In the counter affidavit of the University in so far as the order dated 31.10.2007, declining to approval to the appointment of the writ petitioners in W.P.(C)Nos.33281 & 33462 of 2007, is concerned, the University submits that the entire selection process was vitiated by serious violations of the statutory provisions. It is stated that all the applicants applied for the posts were not called WPC 33281, 33462 & 34172/07 :8 : for the interview and that the M.G. University Statutes did not permit screening or short listing of the candidates. It is also contended that under Statute 3(1) of Chapter 45 B of the University statutes appointment in private colleges shall be made by the educational agencies from a panel of 3 names for every vacancy recommended by the selection committee. According to them statute 3(3) is subject to statute 3(1) and therefore it is essential to prepare a panel containing 3 names. It is also contended that they are entitled to ensure that appointments are made of meritorious candidates and that the selection is done in compliance with the statutes governing the same. 12. According to the University, in view of the University Law (Amendment) Act 2005, the government having sanctioned the post only by Ext.P12 Order dated 05.03.2007, the University could not take up the proposal for approval prior to such approval. It is stated that the Manager had confessed the violations committed and had tendered apology for the same by Ext.R4(f). 13. W.P.(C)No. 34172 of 2007 is filed by the Manager and the Principal of the College, they have pleaded the back ground in WPC 33281, 33462 & 34172/07 :9 : which Ext.R4(f) letter dated 28.05.2007 produced by the University and referred to earlier, has been issued by them. In this writ petition Sri.K. Mathew and Sri. Jory Mathai, who were the Chairman and Member of the Syndicate Standing Committee for Affiliation of the Respondent University have been impleaded in their personal capacity as Respondents 6 and 7. In the context of Ext.R4(f), produced in this writ petition as Ext.P8, the averments in paragraph 6 of the writ petition are important and hence, are extracted for reference: “Para 6: It is submitted that on receipt of Ext.P7 replies, the 7th respondent contacted the 2nd petitioner who was in Bangalore attending a course, over cell phone. He told that he had perused the files of the appointment and approval of teachers of the college and referring to the complaint he advised the 2nd petitioner to request the 1st petitioner to address the University admitting statutory violation, with a request to condone the same. If such a course of action follows, he assured that he would see that the appointments are approved without further delay. Out of the petitioners’ anxiety to obtain approval for the appointments, and considering the agony of the teachers working for such a long time without getting any amount as salary, the 1st petitioner without apprehending snare, followed the advise of the Syndicate Member and wrote to the 5th respondent. A photocopy of the said letter dt.28.5.2007 is produced herewith and marked as Exhibit.P8. Later on, the petitioners discerned that it was a trap devised by the certain Syndicate Members to bargain with the petitioners and the incumbents. WPC 33281, 33462 & 34172/07 :10 : The petitioners never expected such an ignoble conduct from persons holding authority and position in the academic field. Subsequently, the 6th respondent called the 2nd respondent and told that an Enquiry Commission has been constituted, with him as the Convener. After a week, he again called the 2nd respondent and required to meet him at the University. The 2nd petitioner told him that since she did not receive any official communication she may not be able to meet him. After that, there was no response. To their shock, the petitioners were told by a teacher who is awaiting approval to her appointment that the 6th respondent advised her to persuade the teachers to join AKPCTA in order to facilitate their approval.” 14. As stated above respondents 6 and 7 in W.P.(C) No.34172 of 2007 are impleaded in their personal capacity and against them personal allegations have been raised. However, they have not filed any affidavit by themselves and answered the allegations, but it is the Registrar of the University who has filed the counter affidavit on their behalf. 15. The above allegations in paragraph 6 of the writ petition have been answered in paragraph 18 of the counter affidavit in the following words: “The averments in paragraph 6 are also distorted. The petitioners have been pursuing their request for approving the appointments. However, in view of the statutory violations the university was not in a position. The petitioners made personal requests to the members of the WPC 33281, 33462 & 34172/07 :11 : Syndicate as well. It is only in response to that the 7th respondent contacted to the 2nd petitioner. The 7th respondent had asked the 2nd petitioner to address the university explaining the reasons and circumstances leading to the statutory lapses. But the 7th respondent has never asked the 2nd petitioner to admit the statutory violation for the purpose of condonation of the same. The contention of the petitioners that Ext.P8 was procured as dictated by the 7th respondent is not true to facts. Ext.P8 was submitted by the 2nd petitioner on her own free will. Neither the 7th respondent nor the university has got any reason to lay any trap to the petitioners as alleged. The allegation against the 6th respondent is wholly unsustainable. The allegation that the petitioners were told by a teacher who is awaiting approval to her appointments that the 6th respondent advised her to persuade the teachers to join AKPCTA in order to facilitate the approval is a concocted and false allegation. It is denied. The Syndicate of the University is not composed of the members of AKPCTA alone. There are members belonging to different organizations the affiliation of any members, political or otherwise, if at all there is any, has nothing to do with the decisions of an august body like the Syndicate of the University. The averments and allegations of the petitioners in this regard is obviously intended to ridicule and belittle the university and its officers in a bid to derive undue advantage, it is submitted.” 16. It is in this background the contentions raised by both sides will have to be appreciated. 17. Counsel for the petitioners contended that in Ext.P16 order dated 31.10.2007 the University had assigned only two reasons for declining approval to the appointments. According to WPC 33281, 33462 & 34172/07 :12 : them since the legality of this order is under challenge in these writ petitions, the validity thereof should be tested in the light of those reasons and that it is not permissible for the University to supply additional reasons through the counter affidavit filed in these writ petitions to sustain the said order. Reliance was placed on the Apex Court judgment in Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi (AIR 1978 SC 851). 18. Learned Counsel for the petitioners is justified in his submission that only two reasons are stated in Ext.P16 order and therefore the validity of the order has to be tested in the light of those two reasons, as held by the Apex Court in its judgment in Mohinder Singh Gill’s case, para 8 of which is extracted below for reference: “The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16) (at p.18): WPC 33281, 33462 & 34172/07 :13 : “Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself”. Orders are not like old wine becoming better as they grow older. A Caveat.” 19. The first reason stated in Ext.P16 is that all the eligible applicants were not called for interview. The fact that all applicants were not called for interview is not disputed by the management and their justification is that among the applicants, they had shortlisted the candidates to be called for interview. In view of this, the question is whether the management had the authority to shortlist candidates and if so, whether the shortlisting was done based on any reasonable and acceptable criteria. 20. When the available vacancies are few, and the number of applicants is large, it is always open to the management to restrict the zone of consideration, subject to any minimum prescribed in the rules. If there is no such prescription, management need only WPC 33281, 33462 & 34172/07 :14 : ensure the availability of reasonable number of candidates as against the number of vacancies that are to be filled up, following a reasonable criteria. This right of the management, to shortlist the candidates cannot be doubted, so long as the criteria adopted is fair and reasonable in the light of the judgments in Union of India and another vs. T. Sundararaman and Others (1997 (4) SCC 664), Madhya Pradesh Public Service Commission vs. Navnit Kumar Potdar and another (1994 (6) SCC 293) and Jayakumar vs. High Court of Kerala (2001 (2) KLT 924). Therefore I cannot accept the plea of the University that the Management was incompetent to short list candidates. The further question is whether there was sufficient number of short listed candidates for selection. University has not raised such an argument and therefore it is not necessary for me to consider that issue. 21. Then what remains is whether the Management had followed an acceptable and reasonable criteria for shortlisting the candidates. The basis of on which shortlisting has been done is stated in Exts.R4(c) and R4(e) letters of the Management. The relevant portion of Ext.R4(e), is extracted below for reference: WPC 33281, 33462 & 34172/07 :15 : “However, the circumstances under which the screening was done is give below:- The District Collector, Ernakulam was the Government nominee in the Staff Selection Committee. The District Collector was very busy during the period of interview due to tsunami and he was kind enough give two days to participate in the staff selection committee on condition that the entire interview and selection for all subjects should be completed within two days given by him. Accordingly all the applications were scrutinized based on the marks in their basic degree, qualifying degree, additional degree, teaching experience, published works, research experience etc. On the basis of the above screening the candidates upto 3 to 5 times of the vacancies were called for interview. This is permissible as per the judgment of the Hon’ble Supreme Court in the State of Punjab and Others vs. Manjit Singh and others (AIR 2003 SC 4580)”. It can be seen from the above that the criteria adopted by the Management are the marks obtained by the candidates in their basic degree, qualifying degree, additional degree, teaching experience, published works, research experience, etc. It is also stated that they had shortlisted candidates upto 3 to 5 times the vacancies. The aforesaid criteria are certainly reasonable, fair and valid and by this process, as the College had ensured the availability of candidates’ upto 3 to 5 times vacancies, I do not find anything irregular or illegal in the action of the management in shortlisting the WPC 33281, 33462 & 34172/07 :16 : candidates. 22. The second reason stated in Ext.P16 is that the statute 3 (1) of Chapter 45 B of the University statutes stipulate that select list should contain 3 names for every vacancy and that this provision was violated. The correctness of this contention has to be tested in the light of the statute itself. Statutes 3(1) and 3(3) Chapter 45 B being relevant, are extracted below for reference: “(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 buy 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): …………………………………………………………………… (3): Notwithstanding anything contained in clause (1), in the case of any Educational Agency which has voluntarily entered into a written agreement with the Government for the direct payment of salaries to the teachers and the non teaching staff of its Arts, Science or Training Colleges, appointments of teachers, whether provisional or permanent, shall be made only WPC 33281, 33462 & 34172/07 :17 : from a list of persons prepared by a selection committee constituted by the Educational Agency and consisting of the following