IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 WP(C).No. 22228 of 2006(U) -------------------------- PETITIONER: ------------ DR. F.G. BENNO PEREIRA, S/O. FERNANDEZ PEREIRA, LECTURER IN ZOOLOGY, ST.ALBERT'S COLLEGE, ERNAKULAM, RESIDING AT FERINA COTTAGE, KOTTAPPURAM P.O., VIZHINJAM, THIRUVANANTHAPURAM, PIN - 695 521. BY ADV. SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR) SMT.PREETHY KARUNAKARAN SMT.MEENA.A SMT.MINI.M.R. SRI.JAYKAR.K.S. RESPONDENTS: ------------- 1. THE UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT, PIN-673 635, REPRESENTED BY ITS REGISTRAR. 2. THE VICE-CHANCELLOR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT, PIN-673 635. 3. BEATRICE AMAR, ERESSERIL, MARARIKULAM NORTH P.O., S.L.PURAM, ALAPPUZHA DISTRICT, PIN-688 542. BY ADV. SRI.O.V.RADHAKRISHNAN (SR.) SRI.E.S.ASHRAF, SC, CALICUT UNIVERSITY SRI.P.GEORGE WILLIAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.22228/2000 APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE NOTIFICATION DATED 11.1.2005 ISSUED BY THE CALICUT UNIVERSITY. EXT. P2: COPY OF THE COMMUNITY CERTIFICATE DATED 13.7.2001 ISSUED TO THE PETITIONER BY THE TAHSILDAR, NEYYATTINKARA. EXT. P3: COPY OF THE M.S.C. DEGREE CERTIFICATE DATED 11.6.1993 ISSUED TO THE PETITIONER FROM THE KERALA UNIVERSITY. EXT. P4: COPY OF THE B.ED. DEGREE CERTIFICATE DATED 24.1.1994 ISSUED TO THE PETITIONER FROM THE KERALA UNIVERSITY. EXT. P5: COPY OF THE CERTIFICATE DATED 9.6.1994 ISSUED TO THE PETITIONER BY THE UNIVERSITY GRANTS COMMISSION. EXT. P6: COPY OF THE CERTIFICATE DATED 9.11.2005 ISSUED TO THE PETITIONER BY THE PRINCIPAL, ST.ALBERT'S COLLEGE, ERNAKULAM. EXT. P7: COPY OF THE PH.D DEGREE CERTIFICATE DATED 31.7.2000 ISSUED TO THE PETITIONER FROM THE KERALA UNIVERSITY. EXT. P8: COPY OF THE CERTIFICATE DATEDF 26.3.2001 ISSUED TO THE PETITIONER BY THE UNIVERSITY OF KERALA RECOGNIZING THE PETITIONER AS A RESEARCH GUIDE OF THE UNIVERSITY OF KERALA. EXT. P9: COPY OF THE LIST OF RESEARCH PUBLICATINS CO-AUTHORED BY THE PETITIONER. EXT. P10 SERIES : COPIES OF THE CERTIFICATES ISSUED TO THE PETITIONER BY VARIOUS ORGANISATIONS/BODIES (12 IN NUMBER) PROVING THE PETITIONER'S PARTICIPATION IN NATINAL/STATE LEVEL SEMINARS IN VARIOUS FIELDS. EXT. P11: COPY OF THE MEMO DATED 27.10.2005 ISSUED BY THE 1ST RESPONDENT UNIVERSITY TO THE PETITIONER TO APPEAR FOR THE INTERVIEW ON 11.11.2005. EXT. P12: COPY OF THE ORDER DATED 4.4.2006 ISSUED BY THE 1ST RESPONDENT UNIVERSITY APPOINTING THE 3RD RESPONDENT AS LECTURER IN ZOOLOGY. EXT. P13: COPY OF THE ORDER DATED 11.11.1997 ISSUED BY THE 1ST RESPONDENT UNIVERSITY. EXT. P14: COPY OF THE LETTER DATED 24.12.1998 SENT BY THE UNIVERSITY GRANTS COMMISSION TOGETHER WITH THE UGC NOTIFICATION ON THE REVISION OF PAY SCALES, MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS IN THE UNIVERSITIES AND COLLEGES, AND OTHER MEASURES FOR THE MAINTENANCE OF STANDARDS, 1998. EXT. P15: COPY OF THE NOTIFICATION DATED 5.7.2002 PUBLISHED BY THE UNIVESITY OF CALICUT IN THE KERALA GAZETTE VOL.XLVII NO.33 DATED 13.8.2002. EXT. P16: COPY OF THE ORDER DATED 5.8.1997 ISSUED BY THE MAHATMA GANDHI UNIVERSITY APPROVING THE PETITINER'S APPOINTMENT AS LECTURER IN ZOOLOGY FROM 28.11.1995 TO 14.6.2000 IN ST.ALBERT'S COLLEGE, ERNAKULAM. EXT. P17: COPY OF THE ORDER DATED 11.12.2002 ISSUED BY THE MAHATMA GANDHI UNIVERSITY APPROVING THE PETITINER'S APPOINTMENT AS LECTURER IN ZOOLOGY FROM 15.6.2000 TO 14.6.2005 IN ST.ALBERT'S COLLEGE, ERNAKULAM. EXT. P18: COPY OF THE APPOINTMENT ORDER DATED 21.2.2004 ISSUED BY THE MANAGER, ST.ALBERT'S COLLEGE, ERNAKULAM APPOINTING THE PETITINER AS LECTURER IN AQUACULTURE. EXT. P19: COPY OF WEB PAGE OF THE JOURNAL 'AQUACULTURE NUTRITION' FOR THE PERIOD FROM FEBRUARY 2004 TO OCTOBER 2006. EXT. P20: COPY OF REPORT SUBMITTED BY SUB COMMITTEE TO THE SYNDICATE. EXT. P21: COPY OF RELEVANT PORTION OF MINUTES OF THE SYNDICATE MEETING DATED 19.7.07. RESPONDENT'S EXHIBITS: EXT. R1(A): COPY OF THE SCORE SHEET OF THE CANDIDATES WHO ARE APPEARED FOR THE INTERVIEW. EXT. R3-1: COPY OF B.SC. DEGREE CERTIFICATE DATED 22-7-94 ISSUED BY M.G. UNIVERSITY TO THIS RESPONDENT. EXT. R3-2: COPY OF M.SC. DEGREE CERTIFICATE DATED 21-2-97 ISSUED BY CUSAT TO THIS RESPONDENT. EXT. R3-3: COPY OF PH.D DEGREE CERTIFICATE ISSUED TO THIS RESPONDENT. EXT. R3-4: COPY OF AWARD LETTER FROM CSIR GRANTING SRF TO THIS RESPONDENT. EXT. R3-5: COPY OF NATIONAL ELIGIBILITY TEST BY CSIR NEW DELHI. EXT. R3-6: COPY OF NATIONAL ELIGIBILITY TEST BOY AGRICULTURAL SCIENTIST RECRUITMENT BOARD (ICAR), NEW DELHI. EXT. R3-7: COPY OF SCORE CARD ISSUED BY THE ORGANISING CHAIRMAN, GATE-96. EXT. R3-8: COPY OF THE PARTICIPATION CERTIFICATE ISSUED TO THIS RESPONDENT BY ORGANISING COMMITTEE OF ASIA-PACIFIC ON MARINE SCIENCE & TECHNOLOGY, KUALA LUMPUR, MALAYSIA. EXT. R3-9: COPY OF INTERNATIONALLY PUBLLISHED PAPER ENTITLED 'NUTRITIONAL ENRICHMENT OF PRAWN SHELL WASTE BY MICROBIAL TRNASFORMATION'. EXT. R3-10: COPY OF INTERNATIONALLY PUBLISHED PAPER ENTITLED THE EFFECT OF FERMENTED PRAWNJ SHELL WASTE ON THE GROWTH AND SURVIVAL OF PENAEUS INDICUS'. EXT. R3-11: COPY OF BEST POSTER PAPER AWARD ISSUED TO THE RESPONDENT. EXT. R3-12: COPY OF CERTIFICIATE ISSUED BY CUSAT FOR PRESENTING A PAPER ENTITLED 'POLYPHOSPHATE ACCUMULATION IN MICROBES: A LUXURY PHENOMENON' IN A NATIONAL SYMPOSIUM. EXT. R3-13: COPY OF PUBLISHED WORK IN PROCEEDINGS OF NATIONAL SYMPOSIUM FRONTIERS IN APPLIED ENVIRONMENTAL MICROBIOLOGY PUBLISHED BY COCHIN UNIVERSITY. EXT. R3-14: COPY OF THE 1ST PAGE OF THE SCIENTIFIC PAPER ENTITLED 'EFFICACY OF FERMENTED PRAWN SHELL WASTE AS A FEED INGREDIENT FOR INDIAN WHITE PRAWN, FENNEROPENAEUS INDICUS' PUBLISHED BY BLACKWELL PUBLISHING LTD, IN THE JOURNAL ENTITLED AQUA CULTRUE NUTRITION. EXT. R3-15: COPY OF IELTS ISSUED BY BRITISH COUNCIL ISSUED TO THIS RESPONDENT. EXT. R3:-16: COPY OF CERTIFICATE OF POSTGRADUATE DIPLOMA IN COMPUTER APPLICATION ISSUED BY RAJIV GANDHI EDUCATION FOUNDATION TO THIS RESPONDENT. EXT. R3-17: COPY OF CERTIFICATE ISSUED TO THIS RESPONDENT BY CENTRE FOR ADVANCED STUDIES IN BOTANY UNIVERSITY OF MADRAS. EXT. R3-18(A), (B), (C) & (D): COPY OF OF FOUR CERTIFICATES ISSUED TO THIS RESPONDENT BY DIFFERENT ACADEMIC BODIES. EXT. R3-19: COPY OF TEACHING EXPERIENCE CERTIFICATE AT POSTGRADUATE LEVEL DATED 16-8-2001 ISSUED TO THE RESPONDENT BY THE DEPARTMENT OF MARINE BIOLOGY, CUSAT. EXT. R3-20: COPY OF CERTIFICATE DATED 5-11-2001 ISSUED TO THE 3RD RESPONDENT BY THE PRINCIPAL, ST.XAVIER'S COLLEGE FOR WOMEN CERTIFYING TEACHING EXPERIENCE. EXT. R3-21: COPY OF CERTIFICATE DATED 23-8-2005 ISSUED TO THE RESPONDENT BY THE PRINCIPAL, AQUINAS COLLEGE. EXT. R3-22: COPY CERTIFICATE DATED 20-4-2006 ISSUED BY PRINCIPAL, U.C. COLLEGE, ALUVA TO THIS RESPONDENT. EXT. R3-23: COPY OF LETTER DATED 19-4-2005 ISSUED TO THIS RESPONDENT BY DIRECTOR OF BHARATHIDASAN UNIVERSITY. EXT. R3-24: COPY OF CERTIFICATE DATED 30-8-2006 BY THE REGISTRAR UNIVERSITY OF CALICUT TO THIS RESPONDENT. EXT. R3-25: COPY OF A CERTIFICATE DATED 8-12-2004 ISSUED BY M.G.UNIVERSITY. EXT. R3-26: COPY OF A COMMUNICATION DATED 20-7-1964 BY THE REGISTRAR UNIVERSITY OF KERALA. EXT. R3-27: COPY OF THE CERTIFICATE DATED 22-11-2004 BY COCHIN UNIVERSITY. EXT. R3-28: COPY OF COMMUNITY AND NON-CREAMY LAYER CERTIFICATE ISSUED BY THE TAHSILDAR, CHERTHALA. EXT. R3(30): COPY OF THE LETTER NO.PR/RTI/2007 DATED 01-03-2007 OF THE PUBLIC INFORMATION OFFICER, UNIVERSITY OF CALICUT. EXT. R3(31): COPY OF THE LIST OF COURSES OF OTHER UNIVERSITIES RECOGNISED BY THE UNIVERSITY OF CALICUT. /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= W.P.(C) No. 22228 of 2006 (U) ======================= Dated this the 19th day of March, 2008 JUDGMENT Petitioner is an aspirant for the post of Lecturer in Zoology in Calicut University. Notification was issued by Ext.P1 dated 11.1.2005, inviting applications for the post. One post was reserved for Latin Catholic/Anglo Indian. Both the petitioner as well as the 3rd respondent were applicants to the reserved vacancy. The 3rd respondent was preferred to the petitioner and appointed. The petitioner is challenging the appointment of the 3rd respondent on two grounds in this writ petition. First is that, the 3rd respondent possessed only the qualification of Master's Degree in Marine Biology, whereas, as per Ext.P1 notification, the qualification prescribed was Master's Degree in the relevant subject. According to the petitioner, this would mean that qualification prescribed is Master's Degree in Zoology which the 3rd respondent does not possess. The second contention is that, the University itself has prescribed guidelines for award of marks during selection to the post of Lecturer and marks awarded were W.P.(C) No. 22228/2006/U -2- not in accordance with the guidelines. According to the petitioner, if marks were awarded in accordance with the guidelines, the petitioner would have got much more marks than the 3rd respondent, in which case the petitioner ought to have been preferred to the 3rd respondent. 2. The 3rd respondent would contend that as far as the qualifications are concerned the University itself has recognised Master's Degree in Marine Biology as equivalent to Master's Degree in Zoology. He would rely on equivalency certificate issued by the University in this regard. Regarding the second contention, 3rd respondent would contend that even if marks were awarded in accordance with the guidelines, the 3rd respondent would have got three marks more than the marks the petitioner would have got. 3. The University has filed a counter affidavit in which some of the facts stated by the petitioner are not disputed. 4. I have considered the rival contentions in detail. I am not inclined to go into the merits of the rival contentions in view of the subsequent events. The University itself had conducted an enquiry into the validity of selection and appointment of teaching W.P.(C) No. 22228/2006/U -3- staff during 3 years prior to 2007. The selection in question in this writ petition was also subject matter of enquiry. In respect of the same, a sub committee was appointed which filed Ext.P20 report. In that report, in respect of selection in question in this writ petition, it has been found thus: "2. Lecturer (LC/AI-Temporary) The post was notified as 'temporary' when 5 permanent posts of Lecturers were lying vacant in the Department. Among the 4 applicants, 3 candidates attended the interview. Smt.Mona Augustin Karipel was not awarded marks treating her as 'over aged'. But she was only 41 years 8 months on 1-1- 2005, and she is eligible for 3 years relaxation in upper age limit as per provisions in KS & SSR. Dr.Benno Pereira had 9 years of regular and approved teaching experience at the time of notification and therefore, is eligible for 15 marks for his experience. But he was not awarded any marks on that count. Further, he is an approved research guide of Kerala University. If he were awarded 15 marks for experience, he would get 71 marks. The appointed candidate, Dr.Beatrice Amar, scored only 62 marks, i.e., 9 marks less than what Benno Pereira is eligible. It is to be noted that Dr.Beatrice Amar's P.G. degree is in Marine Biology, whereas Dr.Benno Pereira is a P.G. degree holder in Zoology. All these show the malafide intention of the Selection Committee and its Secretary. Therefore, the impugned selection and appointment need review." "The Committee would like to state here the following: The impugned selection and appointment of individuals against the posts of Lecturers in Zoology pursuant to the notifications dated 11.1.2005 and 18-4-2005 have been made W.P.(C) No. 22228/2006/U -4- by the then Vice-Chancellor and the Registrar in flagrant violation of the binding norms contained in the guidelines framed by the Academic Council 11-11-1997 and in the U.O.No.GAII/E1/3265/95. The Honourable High Court of Kerala as per judgment in O.P.16620/02 filed by Smt.Sheela Thomas has conclusively held that the guidelines is mandatory and binding on the selection committee and all other authorities of the University and that any selection and appointment made by the University in violation of said U.O. is liable to be quashed. The Honourable High Court further held therein based on the dictum of the Apex Court laid down in 1995(6)SCC1 and a catena of other decisions that the Selection Committee has no jurisdiction to deviate from the said guidelines and that the Selection Committee is bound to strictly follow the norms and guidelines contained in the U.O. for selection to the teaching post. Accordingly, the Honourable Court as per the judgment in O.P.16620/02 quashed the impugned selection for the post of Lecturer in English, and directed to constitute the Selection Committee, and to re-do the selection and to select a suitable candidate strictly based on the guidelines. Later, in the writ appeal filed as W.A. 1595/03 it was contented before the Division Bench that the guidelines are not binding or applicable to the selection and that the said guidelines can be ignored as they are non-statutory. The Division Bench repelled the said contentions and held that the guidelines and U.O. are binding on the University even if it is considered as non-statutory and accordingly dismissed WA 1592/03 on 13-10-2004 and affirmed the judgment. Again the matter was re-agitated before the Division Bench by filing review petition as RP 928/04 against the judgment in WA 1592/03 and the Division Bench passed judgment dismissing the above R.P., affirming the previous judgments. These judgments were known to the Registrar while he was functioning as the secretary to the Selection Committees, and he is responsible and answerable for these selections and appointments, which were done in violation of the existing norms and rules." W.P.(C) No. 22228/2006/U -5- 5. By Ext.P21 minutes of the 7th meeting of the syndicate on 19.7.07 Ext.P20 report has been approved and it was resolved to take appropriate action in the matter in accordance with law. Now that University itself is seized of the matter, I am of the opinion that the University should complete further action as proposed in Ext.P21 expeditiously. Accordingly, this writ petition is disposed of with a direction to the University to take further action as contemplated in Ext.P21 and complete the same, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. If on conclusion of the proceedings, it is found that the selection has to be revised the University shall do the same also. Needless to say, it would be open to either party to challenge any action taken in that regard, if they are so entitled to. The counsel for the 3rd respondent submits that the right of the 3rd respondent to challenge the report also may be reserved. I need not express any opinion on that. If the 3rd respondent is entitled to challenge the same, this judgment would not stand in the way. 6. The 3rd respondent would rely on a syndicate decision regarding the equivalency of the two qualifications of M.Sc. in W.P.(C) No. 22228/2006/U -6- Zoology and M.Sc. in Marine Biology. The counsel for the petitioner would contend that the syndicate has no power to pass any order regarding equivalency of qualifications and that power rests with the academic council as per the University Act. He also submits that such power can be exercised only by way of regulations framed and not by University orders. The counsel for the University submits that the minutes of the syndicate meetings did not reveal any such decision for equivalency has been taken by the syndicate with regard to the equivalency of M.Sc. Zoology with M.Sc. Marine Biology. I am not expressing any opinion on any of these questions on merit. It is left to the University to take appropriate decision in the matter in accordance with law. The writ petition is disposed of as above. S.SIRI JAGAN, JUDGE jp