IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 17TH AUGUST 2009 / 26TH SRAVANA 1931 WA.No. 2229 of 2006() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.7491/2006 Dated 29/08/2006 .................... APPELLANT(S): PETITIONERS. -------------------------- 1. DR.BINDHU.C. D/O.M.A.CHENTHAMARAKSHAN, AGED 34 YEARS, M.K.KALAM, PUDUNAGARAM, PALAKKAD. 2. MAYA.S. D/O.O.P.SUBRAMANIAN, AGED 31 YEARS, RESEARCH SCHOLAR, SCHOOL OF SOCIAL SCIENCES, M.G.UNIVERSITY, PRIYADHARSHINI HILLS P.O. KOTTAYAM. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO RESPONDENT(S): --------------- 1. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, REPRESENTED BY ITS REGISTRAR, MAIN CAMPUS, KALADY, ERNAKULAM DISTRICT. 2. THE VICE CHANCELLOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, ERNAKULAM DISTIRCT. 3. THE CHANCELLOR, UNIVERSITIES IN KERALA, RAJ BHAVAN, TRIVANDRUM. 4. THE UNIVERSITY GRANTS COMMISSION, REPRESENTED BY ITS SECRETARY, BAHADURSHAH SAFAR MARG, NEW DELHI. 5. P.I.DEVARAJAN, GUEST LECTURER IN PHILOSOPHY, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, ERNAKULAM DISTRICT. 6. P.UNNIKRISHNAN, GUEST LECTURER IN PHILOSOPHY, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, ERNAKULAM DISTRICT. 7. M.N.BABU, GUEST LECTURER IN PHILOSOPHY, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, ERNAKULAM DISTRICT. 8. C.P.VILASINI, GUEST LECTURER IN PHILOSOPHY, REGIONAL CENTRE, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, NAMBRATHUKARA, NADUVATHUR, QUILANDY, KOZHIKODE DISTRICT. ADV. SRI.N.SUGATHAN FOR R.6 SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R5 SRI.B.UNNIKRISHNA KAIMAL FOR R5 SRI.G.D.PANICKER FOR R7 SMT.JEENA JOSEPH FOR R7 SRI.B.S.KRISHNAN, SENIOR ADVOCATE FOR R1,2 SMT.LATHA KRISHNAN,SC,SANSKRIT UTY. FOR R1,2 SRI.K.ANAND, SC, SANSKRIT UTY. FOR R1,2 SRI.P.K.VIJAYAMOHANAN,SC,SANKARACHA.UTY FOR R1 SRI.S.KRISHNAMOORTHY FOR R4 SMT.N.SUDHA DEVI FOR R3 SRI.BABU KARUKAPADATH FOR R8 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ. ```````````````````````````````````````````````````` W.A. No. 2229 OF 2006 ```````````````````````````````````````````````````` Dated this the 17th day of August, 2009 J U D G M E N T Balakrishnan Nair, J. The appellants are the writ petitioners. They were candidates, who applied for the post of Lecturer in Philosophy when applications were invited for the said post by the 1st respondent University as per Ext.P1 notification. They have all the prescribed qualifications. The interview for selection to the said post was held on 3.3.2006. While participating the interview, they found that the constitution of the selection committee was not made in accordance with the statutes governing the same. Dr.Sreekumar and Dr.V.C.Narayana Das were nominated as outside experts. According to them, Dr.Sreekumar cannot be treated as an expert in Indian Philosophy. Dr.V.C.Narayana Das was, at the relevant time, the Dean of the Faculty of Arts and Social Sciences of the University. So, he cannot be treated as an outside expert. The petitioners also found that Guest Lecturers working under the University were also granted age relaxation WA.2229/06 : 2 : treating them as persons under the teaching service of the University. The appellants also came to know that the selection was, in fact, meant to regularise the appointments of respondents 5 to 8, who were working as Guest Lecturers. In view of the above facts, appellants felt that the selection will not be fair or proper and so, the writ petition was filed seeking the following reliefs:- “ (i) Issue a writ in the nature of mandamus commanding the respondents 1 and 2 to conduct the selection process to the post of lecturer in the 1st respondent university afresh in strict adherence to the provisions of the Sree Sankaracharya University of Sanskrit Statutes, 1997. (ii) Declare that the selection process to the post of Lecturer in Philosophy in the 1st respondent university and the interview held on 3.3.06 being illegal are null and void. (iii) Issue such other writ, order or direction this Hon'ble court may deem fit and proper on the facts and circumstances of the case and in the interest of justice.” 2. The appellants raised mainly two contentions in the writ petition. The first contention was that the selection committee WA.2229/06 : 3 : was not constituted in accordance with the statute in as much as the same contained Dr.Sreekumar and Dr.V.C.Narayana Das. Secondly, it was contended that persons, who are not in the regular service of the University as teachers, were granted age relaxation and over aged persons were treated as qualified hands. During the pendency of the writ petition, Ext.P8 interim order was passed in a connected writ petition, providing that interview may continue but selection shall not be finalised without the leave of this court. The said writ petition was heard along with the writ petition filed by the appellants. 3. The 1st respondent University justified the constitution of the selection committee. According to it, the Dean of the faculty of the University is not a university employee. He can be Dean in other universities also. So, there is nothing wrong in treating him as an outside expert. Regarding age relaxation, it was submitted that University decided to grant relaxation to persons working as guest lecturers also. Therefore, the guest lecturers, who were over aged, were rightly treated as eligible candidates by reckoning the service rendered by them in the post of guest lecturer. The WA.2229/06 : 4 : contesting respondents also resisted grant of prayers in the writ petition. The learned single Judge heard the two writ petitions together and dismissed them by the common judgment dated 29.8.2006. The operative portion of the judgment concerning the writ petition filed by the appellants reads as follows:- “ 24. As regards the other contentions raised by the petitioners in Writ Petition No.7491/2006, I do not find any reason to grant the reliefs prayed for by the petitioners. I am satisfied that the selection process was held in a proper and legal manner and therefore, the prayer made by the petitioners to conduct a fresh selection cannot be granted.” 4. Feeling aggrieved by the above decision of the learned Single Judge, this writ appeal is filed. Sri.S.P.Aravindakshan Pillay, learned counsel for the appellants, submitted that the selection committee was not constituted in accordance with Statute 4 of Chapter III of the Sree Sankaracharya University of Sanskrit Statutes 1997. The two persons, Dr.Sreekumar and Dr.V.C.Narayana Das, cannot be treated as outside experts. The first one among them cannot be treated as an expert in Indian Philosophy, whereas the latter is a Dean of one of the faculties of WA.2229/06 : 5 : the University. So, the said illegality will vitiate the entire selection process. Further, guest lecturers can never be treated as members of the teaching service of the University. So, the selection of respondents 5 and 8 cannot be sustained, unless their service as guest lecturer is also reckonable. 5. Sri.P.K.Vijayamohanan, learned standing counsel of the University, supported the judgment of the learned single Judge. The contentions raised in the University's counter affidavit were reiterated by him before us. Sri.K.R.B.Kaimal, learned senior counsel who appeared for the 5th respondent, took us through the relevant provisions of the statute and submitted that a Dean of a faculty is not a salaried employee and he is not appointed as such, but only nominated as Dean by the Chancellor. Therefore, he cannot be treated as an employee of the University. So, the view taken by the University that he is an outside expert cannot be said to be irrational or arbitrary warranting interference of this court. Learned senior counsel also pointed out, relying on the definition of 'teacher' in Section 2(t) of the Sree Sankaracharya University of Sanskrit Act, 1994, that guest lecturers can also be treated as teachers. They are rendering service as teachers and there is WA.2229/06 : 6 : nothing wrong in granting age relaxation to them. Therefore, learned senior counsel prayed for dismissal of the writ appeal. We also heard the learned counsel appearing for the other contesting respondents. They adopted the contentions raised by the learned senior counsel. 6. Before adverting to the rival contentions, we will refer to the relevant statutory provisions. Section 2(t) defines 'teacher' as follows:- “ 'Teacher' means a Professor, Reader or such other person appointed or recognised by the University for the purpose of imparting instruction or conducting and guiding research in the University and includes any other person who may be declared by the Statutes to be a teacher.” Section 23 deals with the officers of the University. Deans of faculties are included as item (iv) among the list of officers enumerated in Section 23. Section 29 provides that Dean of each faculty shall be nominated by the Chancellor on the recommendation of the Vice Chancellor for a period of two years. It is the duty of the Dean to ensure the observance of the Statutes, WA.2229/06 : 7 : Ordinances, Regulations and Orders relating to his faculty. Section 31 deals with appointment of teachers, officers and staff. The said Section reads as follows:- “31. Appointment of teachers, officers and staff - (1) Subject to the provisions of this Act and the Statutes, the teachers, officers and other employees of the University shall be appointed by the Vice- Chancellor on the advice of appropriate Selection Committee constituted in the manner prescribed by the Statutes. (2) (a) Save as otherwise provided in this Act and the Statutes, every teacher, officer and other employee of the University shall be appointed under a written order. (b) The written order referred to in clause (a) shall be lodged with the Registrar and a copy thereof shall be furnished to the teacher, officer or employee concerned. (c) Every appointment shall be made consistent with the provisions of this Act and the Statutes for the time being in force in relation to conditions of service. (3) The retirement age of the teachers of the University, shall be sixty years and that of the teaching and non-teaching officers and WA.2229/06 : 8 : other employees of the University shall be fifty five years: Provided that in respect of any person who is appointed temporarily on a short term contract for a period not exceeding three years, the age limit mentioned shall not apply: Provided further that even such short term contract appointments shall be subject to the approval of the Selection Committee constituted in the manner prescribed in the Statutes. (4) The procedure for the recruitment, the qualification and conditions of service of the teaching and non-teaching employees of the University shall, unless otherwise provided for in this act be such as may be prescribed by the Statutes.” 7. Chapter III of the Sree Sankaracharya University of Sanskrit Statutes, 1997 deals with teachers of the University. Statute 3 provides that except in the case of short term contract appointments, teachers of the University shall be appointed by the Syndicate, after advertisement inviting applications. The said provision reads as follows:- “3. Appointment - Except in the case of short term contract appointments, teachers WA.2229/06 : 9 : of the University shall be appointed by the Syndicate after advertisement inviting applications by issuing notification at least in two prominent newspapers, one English and the other Malayalam. In making appointments by direct recruitment, the University shall observe the provisions of clauses (a), (b) and (c) of rule 14 and rules 15, 16 and 17 of the Kerala State and Subordinate Service Rules, 1958, as amended from time to time. It shall however be competent for the Syndicate to appoint in exceptional cases a Dean without advertisement. “ 8. Statute 4 under the above Chapter deals with constitution of selection committee. This being relevant for the purpose of this case, we quote the said statute. “ 4. Selection Committee - (1) When posts are to be filled up after inviting applications by advertisement, the applications received shall be first screened by a Committee consisting of the Head of the concerned University Department of Study and Research and two members of the Syndicate. The applications found in order by the said Committee shall be referred to Selection Committee consisting of - WA.2229/06 : 10 : (i) the Vice-Chancellor, who shall be the ex-officio Chairman of the Selection Committee; (ii) the Principal Dean of Studies; and (iii) (a) for the posts of Professor and Teaching Posts of similar status, one Syndicate member to be nominated by the Vice- Chancellor, three outside experts chosen by the Syndicate and the Dean of the Faculty, concerned; and (b) for the posts of Reader, Lecturer etc., one Syndicate member to be nominated by the Vice-Chancellor, two outside experts chosen by the Syndicate and the Head of the concerned University department or the teacher holding charge of the Head of the Department. (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 recommendations of the Selection Committee shall be placed before the WA.2229/06 : 11 : Syndicate, which shall make the appointments.” 9. Prescription of age limit and relaxation thereof are contained in Statute 6, which reads as follows:- “6. Age limit for direct appointment - The upper age limit for appointment by direct recruitment of University teachers shall be as follows: (i) Professors and teaching posts of similar status : Not more than 50 years (ii) Readers and teaching posts of similar status : Not more than 45 years (iii) Teaching post below the rank of Reader : Not more than 40 years. Notes:- (1) The usual relaxation in the upper age limit shall be allowed in respect of candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes, Relaxation in the upper age limit may also be allowed in the case of persons already in the teaching service of the University. (2) Age of the applicants shall be ascertained as on the 1st day of January of the year in which applications for appointment to such posts are invited.” 10. Now, we will examine the tenability of the two WA.2229/06 : 12 : contentions raised on behalf of the appellants. It is common ground that Dr.V.C.Narayana Das was the Dean of one of the faculties of the 1st respondent University. Section 23 treats him as one of the officers of the University also, though he is nominated by the Chancellor and he is not treated as an employee for the purpose of payment of salary. We think a Dean, who is treated by the Act as an officer of the University, cannot be treated as an outsider. The purpose of inclusion of two outside experts is to maintain the objectivity of the selection and as far as possible, to exclude subjective factors. If the officers of the University are included in the selection committee, it may affect the impartiality of the selection process. That may be the reason why the statute provided that two outside experts should be included in the selection committee. In this case, the said statutory provision has clearly been violated while constituting the selection committee. Though learned standing counsel for the University submitted that the same will not vitiate the selection, we find it difficult to accept that submission. Having regard to the nature of the constitution of the committee, we think the provision for including two outside experts is a mandatory provision. If the said provision is violated, WA.2229/06 : 13 : the selection will definitely get vitiated. 11. The next point to be considered is regarding the age relaxation given to respondents 5 and 8 by reckoning their service under the University as guest lecturers. For selecting guest lecturers, no selection process as contemplated under Statute 3 of Chapter III of the aforementioned Statutes is followed. Rules governing the reservation are also not followed. Such persons are engaged on hourly basis and paid also accordingly. They are normally engaged to teach in short time leave vacancies. The persons engaged as guest lecturers and without proper selection and without observing the Rules of reservation cannot be treated as persons in the teaching service of the University. A person can be treated as a member of service of the University, if only he is appointed substantively to a vacancy in a cadre post in the service. Normally, it should be preceded by a regular selection. Some persons were able to function as guest lecturers in the University. The same can never be treated as a ground to extend special favours to them. Going by the provisions in Statute 6 of Chapter III of the Statutes, we feel that relaxation is meant for those working on a regular basis in the University as teachers. We WA.2229/06 : 14 : notice the submission of the learned senior counsel for the contesting respondents that going by the definition of 'teacher' in Section 2(t), no such requirement that the incumbent should be in regular service, could be inferred. Even assuming guest lecturers are teachers, still, by no stretch of imagination, they could be treated as teachers borne on the teaching service of the University. 12. In the result, the appellants are entitled to succeed. We hold that the selection of respondents 5 to 8 was vitiated by the illegality in the constitution of the selection committee. Age relaxation was granted to respondents 5 and 8 illegally. Therefore, the writ appeal is allowed. The judgment of the learned single Judge is reversed. The selection of respondents 5 to 8 to the post of Lecturer in Philosophy is quashed. We notice that the contesting respondents have a contention that their appointments were not separately challenged in the writ petition. But, going by the prayers, we see that the selection process itself was impugned. The appointments made pursuant to the dismissal of the writ petition were only dependent proceedings. If the selection itself is found to be vitiated, the appointments made pursuant to WA.2229/06 : 15 : the vitiated selection will also collapse, as dependent proceedings. So, it is not necessary for the appellants to separately challenge the appointments of the individual appointees. The University shall conduct selection from among the candidates, who applied pursuant to Ext.P1, in accordance with law and complete the selection process, as expeditiously as possible, at any rate, within six months from the date of production of a copy of this judgment. It is ordered that till regular selection and appointments are completed, respondents 5 to 8 shall be allowed to continue as temporary hands, provided the University requires their services. Sd/- (K.BALAKRISHNAN NAIR, JUDGE) Sd/- (P.S.GOPINATHAN, JUDGE) aks // True Copy // P.A. to Judge