IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 WA.No. 415 of 2011() -------------------- AGAINST THE JUDGEMENT IN WPC.22438/2008 Dated 24/02/2011 .................... APPELLANT: RESPONDENT NO.4 ----------------------------- DR.K.G. SUDHIER, C-7 UNIVERSITY STAFF QUARTERS, KARIYAVATTOM CAMPUS, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM - 695 58 (NOW WORKING AS LECTURER DEPARTMENT OF LIBRARY AND INFORMATION SCIENCE, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM) BY ADV. MR. KRB.KAIMAL, SENIOR ADVOCATE MR. B.UNNIKRISHNA KAIMAL RESPONDENTS: PETITIONER AND RESPONDENTS 1 TO 3 ------------------------------------------------ 1. DR.MINI DEVI.B, W/O. AJAYAN, FLAT NO.11, C.R.H.S GOVERNMENT QUARTERS, HARIHAR NAGAR, NALANDA JUNCTION, KOWDIAR.P.O, THIRUVANANTHAPURAM, (WORKING AS REFERENCE ASSISTANT, DEPARTMENT OF COMMERCE, UNIVERSITY OF KERALA,THIRUVANANTHAPURAM. 2. UNIVERSITY OF KERALA, REPRESENTED BY VICE CHANCELLOR, UNIVERSITY OF KERALA, THIRUVANANTHAPRUAM - 695 034. 3. THE VICE CHANCELLOR AND CHAIRPERSON OF THE SELECTION COMMITTEE FOR THE SELECTION TO THE POST OF LECTURER, DEPARTMENT OF LIBRARY AND INFORMATION SCIENCE, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM - 695 034. 4. THE REGISTRAR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM- 695 034. R1 BY MR. N.N.SUGUNAPALAN, SENIOR ADVOCATE ADV. MR. M.C.GOPI R2 TO R4 ADV. MR. M.RAJAGOPALAN NAIR, SC, KERALA UTY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07/07/2011, ALONG WITH WA NO. 466 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.A. Nos. 415 & 466 OF 2011 ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 7th day of July, 2011 JUDGMENT Ramachandra Menon J. Whether the qualification prescribed for selection and appointment to a particular post is to be considered and decided with reference to the 'last date for submission of application' or whether it could be stretched up to the 'date of interview', is the point involved in these writ appeals. Writ Appeal No. 415 of 2011 has been preferred by the selected candidate, whose selection and appointment has been set aside by the learned Single Judge, while Writ Appeal No. 466 of 2011 has been preferred at the instance of the University - the employer (parties and exhibits are referred to herein, as given in W.A. No. 415 of 2011) 2. The sequence of events as discernible from the pleadings and proceedings is as follows. The University issued Ext. P1 notification dated 26.02.2007, inviting applications from the qualified candidates for W.A Nos. 415 & 466 of 2011 :2: appointment to the post of Lectures in Library & Information Science, along with applications from eligible candidates in respect of other disciplines as well. The qualifications prescribed in respect of the post in question are not in dispute. The last date for submission of application, along with all the testimonials as prescribed therein, was on or before 09.04.2007. The selection procedure as to the granting of 'index marks', is as provided under Ext. P2 norms issued by the University as early as on 19.01.2006. The dispute involved herein is rather confined to item Nos. 3 and 4 mentioned in Ext. P2 i.e. as to the marks awarded in respect of 'Publications in standard / approved journals' ( 2 marks for each paper - subject to maximum of 10 marks) and as to the 'Participation and presentation of papers in national and international seminar / conference' (providing 1 mark each per paper - subject to maximum of 3 marks). 3. Pursuant to the above notification, the candidates including the writ petitioner as well as the 4th respondent in the writ petition (appellant in W.A. No. 415 of 2011) submitted their applications. After completing the process of selection, rank list was published by the University, selecting the 4th respondent in the writ petition as the most suitable candidate and was given placement accordingly, which in turn was subjected to challenge by W.A Nos. 415 & 466 of 2011 :3: the writ petitioner, mainly contending that, the 4th respondent in the writ petition was not eligible to have awarded 10 marks in respect of item No. 3 of Ext. P2 and 3 marks in respect of item No. 4 of Ext. P2 selection procedure. It was specifically pointed out that, out of the 5 papers stated as published, only two items were actually published and the rest 'three' items were published subsequently i.e. after the cut-off date for submitting the application with the relevant testimonials. As such, it was contended that, the 4th respondent in the writ petition was eligible to have only '4' marks awarded under that particular head and that the 6 marks awarded in excess, was liable to be scaled down. Similar contention was there with regard to item No. 4 as well, stating that, granting of 3 marks, in respect of the alleged participation and presentation of papers in national and international seminar / conference was only subsequent to the last date of submission of application i.e. 09.04.2007 and hence the said '3' marks also were to be deleted, on which event, the writ petitioner would stand in front of the queue. 4. The challenge was sought to be resisted from the part of the selected candidate and the University. The main contention was that the allocation of marks under item Nos. 3 and 4 of Ext. P2 was not in respect of W.A Nos. 415 & 466 of 2011 :4: any 'mandatory qualification'; that the 'publication' had virtually been effected before the date of interview held on 27.05.2008 and hence the said marks were liable to be counted. It was also stated that, the relevant articles had already been written and submitted for effecting the publication, which in turn were accepted by the publisher and the position was duly conveyed, which position was brought to the notice of the University as well, while submitting the application . In the course of the proceedings, the articles were published as assured before the date of interview and it was accordingly that full marks were alloted by the University. 5. The University, while seeking to sustain the stand taken, contends that, as per the practice and procedure followed by the University, the Screening Committee constituted for the purpose of selection will go through the applications and the qualified candidates will be called for interview, when the credentials of the qualified candidates will be placed for consideration of the Selection Committee. By the time the candidates were interviewed by the Selection Committee, all the disputed publications had appeared in the journals, which fact was considered by the said Committee, who alloted the marks as provided in Ext. P2. W.A Nos. 415 & 466 of 2011 :5: 6. The learned Single Judge, after considering the rival contentions, arrived at a clear finding that the course pursued by the University was quite wrong, holding that, the merits of the candidates had to be assessed as on the 'last date for submission of the application'. Reliance was also placed on the decision rendered by a Division Bench of this Court in Jaya Vs. Suchit (2010 (2) KLT 709), Accordingly, the selection made by the University was set aside and the University was directed to prepare the rank list afresh, in the light of the observations therein, after deleting the six marks awarded to the selected candidate in respect of the subsequent publications after the last date for submission of application under item No. 3 of Ext. P2, also deleting 3 marks in respect of item No. 4 of Ext. P2 with regard to the disputed participation and presentation of papers in the national and international seminar / conference, the same having admittedly been after the last date for submission of application. 7. Mr. K.R. B. Kaimal, the learned senior counsel appearing for the appellant in W.A. No. 415 of 2011 (selected candidate) submits that the factum of submission of the articles and as to the assurance given to have the same published in the journals was substantiated by producing relevant materials, at the time of submitting the application itself. Proving the word W.A Nos. 415 & 466 of 2011 :6: by the deed, the appellant had produced the requisite materials to show that the publication of the articles was effected before the 'date of interview', which was on 27.05.2008. It is also stated that the decision rendered by the Division Bench of this Court stands on a different pedestal and that the law declared therein has to be confined to the particular facts and circumstances of the said case. The learned counsel submits that the alleged defect, if at all any, is not substantial in character and that the selected candidate had actually secured a total of 87.31 out of 100 marks, whereas the writ petitioner could secure only 81.40 marks, above whom there was another candidate who had scored 81.60. The case of the writ petitioner was more on the probabilities, stating that, the candidate who was placed above her, scoring 81.60 marks, had already joined elsewhere and in the said circumstances, if the excess marks alloted to the selected candidate were deleted, she would get a chance to be selected and appointed. The learned counsel further points out that, even if the 'three' marks in respect of the participation in conference, as stipulated under item No. 4 of Ext. P2 are deleted, the selected candidate will still stand in front of the queue, for having secured higher margin than the writ petitioner. W.A Nos. 415 & 466 of 2011 :7: 8. Sri. N.N. Sugunapalan, the learned senior counsel appearing for the writ petitioner (first respondent in both the Writ Appeals) submits that the idea and understanding of the appellants is quite wrong and misconceived. By virtue of the notified norms for selection and the law declared by the Apex Court on the point, it is no more open for the University to say that the selection can be pursued notwithstanding the cut off date of 09.04.2007 to have reckoned the qualifications and to have weighed the merits / demerits on the basis of the qualification acquired subsequently, till the date of interview. Besides the reliance placed on the decision referred to in the impugned judgment, reference is also made to the verdict passed by the Apex Court in Asok Kumar Sonkar Vs. Union of India and others (2007 (4) SCC 54) with reference to paragraph Nos. 11, 15 and 20, of which, paragraph 11 and 20 are more relevant and extracted below, for the purpose of convenience of reference; 11. The question as to what should be the cut-off date in absence of any date specified in this behalf either in the advertisement or in the reference is no longer res integra. It would be last date for filing application as would appear from the discussions made hereinafter. W.A Nos. 415 & 466 of 2011 :8: 20. Possession of requisite educational qualification is mandatory. The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut - off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, in law, therefore, as held by this Court would be the last date for filing the application. 9. The learned counsel for the first respondent also sought to substantiate the position as to the demerits of the selected candidate and the excess marks alloted for the publication with reference to the three disputed articles stated as published, pointing out that, the same was only subsequent to the last date of submission of the applications. Reference is made to Ext. P27, Ext. P28 and Ext. P29 in respect of the said items. It is also brought to the notice of this Court that the factual position in this regard rather stands admitted as given in paragraph 19 of the counter affidavit filed by the selected candidate (appellant in W.A. No. 415 of 2011), which is extracted below. 19. Ext. P11, the list of publications includes all the publications which were published, accepted for publication and sent for publication. Maximum 10 marks will be given for 5 articles (2 marks each for articles). Other articles are not W.A Nos. 415 & 466 of 2011 :9: considered for giving index marks, at the time of interview. Copies of Reprints were attached for Sl. Nos. 1 & 2, Preprints are enclosed for Sl. Nos. 3 to 7, and the other articles, Sl. Nos. 8 - 10 were clearly mentioned as 'Communicated'. The Preprints produced were verified with the originals at the time of interview by the experts and accordingly the Respondent herein was given 10 marks (5 x 2). 10. Coming to the materials on record, as per Ext. P2 the selection norms, the marks are to be awarded only in respect of the publications in standard / approved journals. It is stipulated in Ext. P1 notification, as to the necessity to have submitted the application on or before 09.04.2007, with all the enclosures including, the certificates, testimonials etc so as to reach the University office before the said date. The said notification was issued on 26.02.2007. The interview was conducted one year after the said notification i.e. on 27.05.2008. If the version of the University as to the alleged practice and procedure is to be accepted, the cut-off date so as to reckon the marks in respect of the various heads as provided under Ext. P2 can be prolonged even beyond the farthest stretch of imagination, simply by adjourning the interview time and again so as to extend undue advantage to the persons of choice, who come within the zone of consideration. The law has been laid down in crystal - clear terms by the W.A Nos. 415 & 466 of 2011 :10: Apex Court in 2007 (4) SCC 54 (cited supra), which stands against the appellants. 11. Incidentally, it has to be to be noted that, presentation of the articles before a publisher does not mean “publication” of the articles. What is stipulated in Ext. P2, so as to have awarded the marks is in respect of the “publication effected” and not for mere submission. This is more evident from the emphasis given as to the publication in standard / approved journals; which is a matter to be ascertained and analysed. Even if, an article is accepted to be published by the publisher, nothing prevents the publisher from having a second thought and to ignore the commitment and not to have the same published, for some or other reasons. This being the position, the scope of Ext. P2 has to be read and understood with reference to the cut-off date of 09.04.2007, as stipulated in Ext. P1 notification; wherein it has been clearly mentioned that the applications along with all the testimonials should reach the Deputy Registrar of the University on or before 09.04.07. It means, the particulars of the published articles should have been there on or before the last date of receipt of application i.e. 09.04.2007 and the 'merit rating' of the concerned candidates ought to have been pursued by the University only W.A Nos. 415 & 466 of 2011 :11: on the basis of such credentials. In the above circumstances, we find that the finding and reasoning given by the learned Single Judge is perfectly within the four walls of law. No interference is called for. Both the appeals fail and they are dismissed accordingly. It is made clear that the University shall ensure, that if any excess marks have been given to any of the candidates in violation of norms as above, the same shall be scaled down to appropriate extent, in the light of the above observations, while preparing the revised rank list, as ordered in the Writ Petition. J. CHELAMESWAR, CHIEF JUSTICE P. R. RAMACHANDRA MENON, JUDGE kmd