IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 WP(C).No. 35461 of 2008(V) ------------------------------------------ PETITIONER(S): -------------------------- DR.SELEENA.K.V, CHAKKALAKKAL HOUSE, VALLIKKUNNU, MALAPPURAM. BY MR.P.RAVINDRAN, SENIOR ADVOCATE, MR.HARIKRISHNAN RAVINDRAN. RESPONDENT(S): ---------------------------- 1. THE MANAGER, MALABAR CHRISTIAN COLLEGE, CALICUT-673 001. 2. THE CHAIRMAN AND GOVERNING BODY, MALABAR CHRISTIAN COLLEGE, CALICUT-673 001. 3. UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, CALICUT. R1 BY ADV..P.CHANDRASEKHAR R2 BY ADVS.MR.P.K.IBRAHIM, MR.THOMSTINE K.AUGUSTINE, MR.C.N.GOPAKUMAR. R3 BY MR.P.C.SASIDHARAN, SC, CALICUT UTY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2009, THE COURT ON 2/04/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.35461/2008 V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NEWS ITEM APPEARED IN HINDU DTD.13/08/07. EXTP2: COPY OF THE MARK SHEET. EXT.P3: COPY OF THE SELECTION LIST. EXT.P4: COPY OF THE NEWS ITEM APPEARED IN THE NEW INDIAN EXPRESS ON 23/10/2008. EXT.P5: COPY OF THE REQUEST OF THE PETITIONER DTD.23/10/08. EXT.P6: COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DTD. 14/11/2008. EXT.P7: COPY OF THE CERTIFICATE ISSUED BY THE 1ST RESPONDENT DTD. 18/12/07. EXT.P8: COPY OF THE CERTIFICATE ISSUED BY THE NCC AUTHORITY DTD. 14/09/08. EXT.P9: COPY OF THE LIST PREPARED ON 16/09/08. EXT.P10: COPY OF THE COMMUNICATION DTD. 9/09/2008. EXT.P11: COPY OF THE COMMUNICATION DTD. 30/09/2008. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF ORDER NO.GA 11/E1/3265/95 DTD. 11/11/1997 OF UNIVERSITY OF CALICUT. EXT.R1(B): COPY OF APPLICATION DTD. 4/09/2007 OF THE PETITIONER. EXT.R1(C): COPY OF THE APPLICATION DTD. 7/09/2007 OF DR.SUJA. EXT.R1(D): COPY OF THE MARK SHEET IN RESPECT OF SELECTION OF LECTURER, MALAYALAM IN MALABAR CHRISTIAN COLLEGE, CALICUT. EXT.R2(A): COPY OF THE ORDER NO.GA.01/E1/3265/95 DTD.11/11/07 ISSUED BY THE 3RD RESPONDENT. EXT.R2(B): COPY OF THE APPLICATION FORM DTD. 4/09/07 OF THE PETITIONER. EXT.R2(C): COPY OF THE MINUTES OF THE MEETING OF THE GOVERNING BODY HELD ON 7/11/08. /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 35461 of 2008-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of April, 2009. JUDGMENT The important question that arises in this writ petition is whether the educational agency is empowered to cancel the panel of names forwarded by the Selection Committee for the post of Lecturer in the College in question. 2. The notification is one for appointment to the post of Lecturer in Malayalam in the Malabar Christian College, Calicut. A vacancy arose due to retirement of a Selection Grade Lecturer. Ext.P1 dated 13.8.2007 is the notification. 3. The petitioner was an applicant for the post. She is a Post Graduate in Malayalam and has passed the National Eligibility Test and M.Phil. in Malayalam. She is having Doctorate in Malayalam language. 4. The procedure for selection is in accordance with the Calicut University (Conditions of Service of Teachers and Members of non- teaching staff) First Statutes, 1979. A Selection Committee was constituted as per Clause 4(1) of the said Statute and it comprised of two representatives of the Educational Agency, the Principal, the Head of the wpc 35461/2008 2 Department, one subject expert and a nominee of the Government. 5. The interview was held on 16.9.2008. On the apprehension that the appointment as per the select list will not be done by the Educational Agency, the petitioner sought for the details of the matter and accordingly obtained Ext.P2 mark list and Ext.P3 rank list. The order of ranking showed that the petitioner has got 55 out of 100 marks and one Dr. Suja obtained 53 out of 100. Meanwhile, a news item was published in the Indian Express Daily dated 23.10.2008 stating that the Government nominee dissented with the selection of the candidate. Again, information was sought by the petitioner as per Ext.P5 and she was given a reply as per Ext.P6 stating that the governing body in its meeting held on 7.11.2008 has decided to scrap the select list. This is under challenge in this writ petition. 6. Mainly, the challenge is based on lack of power on the Educational Agency to cancel the select list. It is contended that they are bound to make the appointment in accordance with the panel forwarded and the petitioner being rank No.1, ought to have been appointed. 7. Respondents 1 and 2 have filed separate counter affidavits. The first respondent is the Manager and the second respondent is the Chairman of the governing body who has issued Ext.P6. In the counter affidavit filed by the second respondent, mainly it is contended that in Ext.P3 rank list the wpc 35461/2008 3 Chairman did not put his signature and therefore it is only a draft. It is also contended that he did not approve the rank list after finding that there was merit in the objection raised by the Government nominee. He was acting in accordance with the legal opinion obtained in the matter, wherein opinion was to the effect that the petitioner was awarded marks lavishly, whereas Dr. Suja who has come second, was having more marks after assessment of her qualification. But deliberately in the interview she was given very low marks. The petitioner was granted uniform marks by the two members of the management and the Principal and this will raise serious suspicion against the members of the management representatives and the Principal. It is averred that on the basis of the said legal opinion, the Educational Agency resolved to cancel the list prepared by the Selection Committee for the post of Lecturer in Malayalam and ordered for fresh selection. Accordingly, the rank list was cancelled. 8. On the merits of the matter also, in paragraphs 8 and 9 of the counter affidavit, it is contended that the petitioner could not have been ranked first in the selection list for many reasons. She was awarded 15 marks for NET and Ph.D., whereas she did not entitle for this 15 marks as she did not have Ph.D. on the date of her application. The guidelines for awarding of marks is as per Ext.R2(a) given by the University. Before wpc 35461/2008 4 giving ranking to the candidates, the Selection Committee has has not subjected further scrutiny of the marks awarded to the candidate for their educational and other credentials at the office of the Principal. This omission has resulted in vitiating the rank list prepared by the Selection Committee. It is also contended that merely because she happened to be rank No.1, no right has been accrued to enforce the appointment. The recommendation of the Selection Committee is not binding on the governing body which has full power and authority to examine the merits of the ranking and can take its own decision on being satisfied by an objective assessment of the merit of the candidate. 9. In the counter affidavit filed by the first respondent Manager, similar contentions have been raised. 10. Heard learned Senior Counsel Shri P. Ravindran, for the petitioner and Shri P. Chandrasekhar and Shri P.K. Ibrahim for the respondents. 11. Shri P. Ravindran, learned Senior Counsel appearing for the petitioner submitted that going by the relevant provisions of the Statute, the Educational Agency has no role to twinkle with the panel forwarded by the Selection Committee. The assessment of qualification and merit is entirely for the Selection Committee to make and once their assessment has become wpc 35461/2008 5 final, the Educational Agency cannot have any role in reassessing the qualification and find out whether the award of marks for each candidate is correct or not. Relying upon the relevant provisions of the Calicut University Act and the relevant First Statute, it is pointed out that none of the provisions therein specifically empower the Educational Agency any power to have a reassessment as done in this case. Therefore, whatever done by the Educational Agency by cancelling the select list as per Ext.P6 is beyond its jurisdiction. Therefore, the same has to be declared null and void. 12. On the merits of the matter also learned Senior Counsel submitted that the contention that the marks awarded to the petitioner by the two representatives of the management and the Principal is on the uniform rate and is tainted by suspicion, cannot be justified. It is pointed out that the petitioner had been given 14 marks each by the Chairman, Manager and the Principal and 10 marks by the Government nominee. Therefore, it is cannot be said that the awarding of marks is tainted at all. Regarding the absence of Ph.D. and awarding of 15 marks for NET along with Ph.D., learned Senior Counsel pointed out that in the application it was clearly stated that she has appeared for Ph.D. It is contended that Ph.D. is not a qualification prescribed for the post of Lecturer and Ph.D. and M.Phil are treated as wpc 35461/2008 6 desirable qualifications by the University. The additional qualifications are looked into by the Selection Committee at the time of interview. At the time of submitting the application, she had submitted her thesis for Doctorate and was awaiting result. Doctorate was awarded on 9.9.2008 which is evidenced by Ext.P10 and at the time of interview held on 16.9.2008, she had produced the relevant documents before the Selection Committee. On being satisfied about her qualification, the Selection Committee has awarded marks . It is therefore submitted that there is no illegality in the matter. 13. Learned Senior Counsel relied upon various decisions of the Apex Court and of this court, viz. Hukam Chand Shyam Lal v. Union of India and others (AIR 1976 SC 789), The Chancellor and another v. Dr. Bijayananda Kar and others {(1994) 1 SCC 169}, Bhagwan Parshu Ram College v. State of Haryana and others {(1999) 6 SCC 46}, Kerala University v. Sunny (1996 (2) KLT 565) and Sobha B. Nair v. University of Kerala (2004 (1) 541). 14. On behalf of the respondents, a decision of the Apex Court in Pramod Kumar v. U.P. Secondary Education Services Commission and others {(2008) 7 SCC 153} was relied upon to contend that if there is lack wpc 35461/2008 7 of essential qualification, illegality cannot be cured. 15. Before going into the merits of the matter, the relevant provisions of the State also will have to be referred to. Chapter II of the Calicut University (Conditions of Service of Teachers and members of non- teaching staff) First Statutes, 1979 deals with conditions of service of teachers in private colleges. The Statute provides for constitution of Selection Committee for appointments. Herein, the selection is made by a panel as provided under Statute 4(1) which is to the following effect: “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) xxxxxxxx (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) (1) 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- wpc 35461/2008 8 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 that post is concerned. (3) The Registrar shall be the Secretary of the Committee. (4) The recommendations of the Committee of selection shall be placed before the Syndicate, which shall make the appointments: Provided that when the Syndicate proposes to make the appointment other wise than in accordance with the above provisions or against recommendation of the Selection Committee, the Syndicate shall record its reasons and submit its proposals for the sanction of the Chancellor after getting which alone shall an appointment be made.” 16. Learned Senior Counsel appearing for the petitioner submitted that in the case of appointments in the Universities, the relevant provisions allows the Syndicate to prefer choice in the matter and a similar provision is not there under the First Statutes providing for appointment in colleges are concerned. Therefore, the statutory position is clear in that once the Selection Committee makes the selection and prepares a panel, the Educational Agency cannot tamper with the same and the appointment will have to follow. 17. The question has been examined under different circumstances by the Apex Court and this court. In Chancellor’s case {(1994) 1 SCC wpc 35461/2008 9 169, while considering the finality of the proceedings of the Selection Committee, it was held thus in para 8: Xxxxxx Apparently, the view taken is that individual members of the Selection Committee cannot thereafter raise controversies in the matter. In Kerala University’s case (1996 (2) KLT 565) a Division Bench of this court considered whether the recommendation of the Selection Committee is binding on the Syndicate. While considering the matter, it was held in para 4 in the following terms: Xxxxxxxx The case considered in Bhagawan Parshu Ram College’s case {(1999) 6 SCC 46) show that the Selection Committee selected one person and the Managing Committee did not issue any appointment order. The appointing authority sought for reasons to object to the said appointment stating that he should not be given any appointment. While considering the matter, it was held thus in para 5: “The appointment made by the Selection Committee had to be accepted inasmuch as the relevant rules did not permit the Managing Committee to sit in judgment over such a selection made wpc 35461/2008 10 and, therefore, the view taken by the Managing Committee in this regard is wholly arbitrary.” Their Lordships further held that “it is no doubt true that the position in law is that a selection process commenced for an appointment may be cancelled or stopped at any stage or not completed by appointment of the selected candidate but such action can be attacked as arbitrary or mala fide.” Thus, it is evident from the above decision that the Managing Committee has no right to sit in judgment over such a selection. 18. In Subha B. Nair’s case (2004 (1) KLT 541, more or less a similar issue was considered. But the appointment therein was to the service of the University itself. The Selection Committee had conducted the selection, but that was rejected by the Syndicate by stating various reasons. This was challenged in the writ petition on the ground that the Syndicate has no jurisdiction for deciding on such a rejection. After analyzing the relevant provision, it was held in para 15 thus: Xxxx Learned Senior Counsel relied upon the principles stated by the Apex Court in Hukam Chand Shyam Lal’s case (AIR 1976 SC 789) to the effect that when a Statute prescribes a particular mode of things, that mode alone should have been adopted. Their Lordships held in para 18 thus: wpc 35461/2008 11 Xxxxxxxx Now I will consider the decisions relied upon by the learned counsel for the respondents. In United India Insurance Company v. Roy (2005 (2) KLT 63) = ILR 2005 (2) Ker. 307), this court considered the question whether a defect could be corrected by the authority concerned even though the benefit was granted to the person concerned. The issue was whether a cash incentive given contrary to the guideliens issued by the General Insurance Company, could be recouped. After analyzing the question, it was held in para 2 thus: Xxxxxxx The legal position declared therein is that a mistake can be corrected by the administration concerned. In State of Punjab v. Suman Lata (1999 STPL (LE) 27047 SC), the dictum laid down was to the effect that “when the Selection Committee which consists of persons with sufficient experience in that field with the knowledge of job requirements and necessary qualifications in this regard having examined the qualification possessed by the respondent selected the respondent as Arts and Crafts Teacher, the District Education Officer ought not have cancelled that appointment.” This is relied upon in support of the argument that the decision of the Selection Committee is final. wpc 35461/2008 12 Reference can be made to the principle stated by the Apex Court in Pramod Kumar’s case {(2008) 7 SCC 153}. There, a person was appointed to a teaching post for which the qualification required was B.Ed. Degree. Later, it was found that he had not acquired the qualification from a recognized University. Show cause notice was issued and after conducting an enquiry, his service was terminated. While considering the matter, the Apex Court held that when somebody lacks qualification for appointment, that cannot be condoned. Only an irregularity can be sought to be regularized and not an illegality. The principles stated therein are in the following terms: Xxxxxxxxxxxxxxxxx Herein, in the additional affidavit, the minutes of the meeting of the governing body dated 7.11.2008 has been produced as Ext.R2©. After referring to the newspaper report and the adverse comments of the Government nominee abnd after relying upon the legal opinion in the matter, it was decided to cancel the selection and to initite fresh selection. It is seen that they have taken a further decision to issue a fresh notification. Going by the counter affidavit filed by respondents 1 and 2, the justification for cancellation of selection is mainly on the ground that the marks awarded to the eptitoner was far more than what she was actually wpc 35461/2008 13 entitled to as per the guidelines issued by the Calicuty Unviersity, produced as Ext.R1(a). It is pointed out that the best candidate ought to have been recruited. Objection is taken with regard to the assignment of 15 marks towards NET and Ph.D. It is stated that only a candidate who had acquired Ph.D. + NET is entitled to 15 marks as per Ext.R1(a) and the petitioner who had passed only M.A. and M.Phil. was entitled only for five marks as per the said order. It is pointed out that as on the date of selection, she had not acquired Ph.D. and therefore 15 marks should have been reduced from her total marks of 33 for qualification. She wold have entitled only for 23 marks for qualification. Going by the academic record, the second person, viz. Dr.Suja is qualified and is the better candidate. Reliance is placed on the mark sheet also and the academic qualifications of Dr. Suja who was M.A. with Ist Class. Compared with that of the petitioner, she has not passed M.A. with Ist class. Thus, the contention taken is tht the entire selection is faulty and the faulty selection process cannot confer any right on the petitioner. Going by the statutory scheme under the First Statutes, it is the selection committee which has to conduct the selection and interview, award mrks and prepre the panel. No other body is entitled to assess the qualification and award marks. The guidelines for awarding marks (Ext.R1 wpc 35461/2008 14 (a)) is issued by the University. The same was approved by the Academic Council. Therefore, that is binding on the Selection Committee also. If the governing body has got a case that the Selection Committee had failed to effectively assess the qualification and the awarding of marks is not in tune with the gudelines, then the question arises what is the next step which can be taken by them. In this case, going by the averments in the counter affidavit it is clear tht the Eductional Agency had sit upon the entire selection procedure initiated by the selection committee, assessed the entitlement of the particular candidate for assignment of marks, gone to the correctness of the marks awarded by the Selection Committee and has taken the view that the eptitoner who is rank No.1 in the panel, was not given the correct marks. Thus, by the exercise done by the Eductional Agency as is explained in the counter affidavit, they themselves have taken upon the responsibility of the Selection Committee and has clearly deviated from the marks awarded by the Selection Committee. Going by the relevant provisions of the First Statutes, the panel has to be prepared by the Selection Committee. Read with the guidelines in the matter, the entire duty or burden is on the Selection Committee itself. Going by Statute 4(1), appointment of teachers by direct recruitment should be on the basis of marks and such appointment shall be made by the Educational Agency from wpc 35461/2008 15 a panel recommended by a Selection Committee constituted by the Eductional Agency. Therefore, the role of the Educational Agency is specific that they will have to make appointment from a panel recommended by the Selection Committee. Of course, as strongly pleaded by the learned counsel for the respondents, merit is the sole criteria. Suppose there is a failure to consider the merit, it will be a defect which will definitely affect he preparation of the panel. That surely will vitiate the entire selection. No amount of statutory protection will give credence to such a panel prepared by the Selection Committee. But even then, whether the Educational Agency could re-assess the qualification, award of marks, etc. for the particular components as provided in the guidelines, is the moot question. Going by the vairous decisions of the Apex Court and this Court as referred to above, especially the decision of the Apex Court in Bhagwan Parshu Ram College's case {(1999) 6 SCC 46), the Managing Committee is not permitted to sit in judgment over a selection made. But at the same time, a selection process could be stopped or cancelled for other reasons. But herein, such other reasons leading to cancellation are not evident and the cancellation is mainly on the ground that the petitioner's qualification has not been properly assessed. In that view of the matter, the dictum laid down in the said case that the Managing wpc 35461/2008 16 Committee is not permitted to sit in judgment over the selection applies on all fours. In the absence of any power conferred by the First Statutes to the Educational Agency to have a separate assessment of its own, the exercise made by them cannot be supported. But still, the question is whether suppose a candidate is not fulfilling the qualifications or in a case where the candidate is not entitled for award of such marks on the basis of the documents and materials produced, then, can such a candidate be appointed. The appointment of candidates can only be on the basis of their merit provided by Statute 4(1) of the Calicut University First Statutes. The same will be subject to approval by the University also which is evident from Statute 4. Therefore, all these pre- supposes that the candidate selected is fully qualified in accordance with the guidelines and other notified stipulations. When in a case like this there are allegations or there are materials which may lead to have a re-look of the entire matter, it cannot be said that the Educational Agency lacks power to revert the matter back to the Selection Committee. In fact, this Court in Bernard Fenn v. University of Kerala (1979 - 85 KUC 167) considered the question whether if the candidate selected is having no qualification and that aspect was overlooked by the Selection Committee, such remedial measures could be taken or not. Of course, that was an appointment to the wpc 35461/2008 17 post of Reader in the University which falls within the ambit of the Statute. Clause (4) of Rule