IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 32220 of 2006(I) ------------------------------------- PETITIONER: ----------------- DR.M.A. JOSEPH, LECTURER (SENIOR SCALE), DEPARTMENT OF COMMERCE AND MANAGEMENT STUDIES, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O. BY ADV. SRI.ROY CHACKO RESPONDENTS: ----------------------- 1. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, REPRESENTED BY ITS REGISTRAR, UNIVERSITY CAMPUS, THRIKKAKARA, KOCHI-22. 2. THE VICE CHANCELLOR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, UNIVERSITY CAMPUS, THRIKKAKARA, KOCHI-22. 3. DR.M. SARANGADHARAN, PROFESSOR & HEAD OF THE DEPARTMENT, DEPARTMENT OF COMMERCE, KERALA UNIVERSITY, ADMINISTRATIVE OFFICE, TRIVANDRUM-695 035. 4. DR.RAJITHAKUMAR. S., LECTURER (SENIRO SCALE), SCHOOL OF MANAGEMENT STUDIES, CUSAT, KOCHI-22. ADV. SRI.P.RAVINDRAN (SR.) FOR R4 ADV. SRI.S.P.ARAVINDAKSHAN PILLAI,SC,COCHI U FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 32220/2006-I APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ADVERTISEMENT APPEARED IN THE MATHRUBHUMI DAILY DATED 10/10/2005. EXT.P2: COPY OF THE FILLED UP APPLICATION FORM BY THE PETITIONER TO THE POST OF READER. EXT.P3: COPY OF THE RELEVANT PAGE RELATING TO THE QUALIFICATION FOR THE POST OF READER CONTAINED IN REGULATION 4.3.0. EXT.P4: COPY OF THE MEMO FOR INTERVIEW DATED 06/11/2006. EXT.P5: COPY OF THE CERTIFICATE IN PROOF OF THE PARTICIPATION OF THE PETITIONER FOR FACULTY DEVELOPMENT PROGRAMME CONDUCTED BY THE INSTITUTE OF CHARTERED FINANCIAL ANALYSIS OF INDIA, HYDERABAD FROM 27TH JUNE TO 1ST JULY 1995. EXT.P6: COPY OF THE CERTIFICATE IN PROOF OF THE PARTICIPATION OF THE PETITIONER FOR FACULTY DEVELOPMENT PROGRAMME ON PEDAGOGY IN MANAGEMENT CONDUCTED BY THE INDIAN INSTITUTE OF MANAGEMENT, KOZHIKODE FROM 29TH AUGUST TO 2ND SEPTEMBER 2003. EXT.P7: COPY OF THE CERTIFICATE IN PROOF OF THE PARTICIPATION OF THE PETITIONER FOR AICTU QUALITY IMPROVEMENT PROGRAMME ON INDUSTRIAL MARKETING AND PROJECT MANAGEMENT CONDUCTED BY THE NARSEE MONJEE INSTITUTE OF MANAGEMENT STUDIES, MUMBAI FROM 7TH TO 11TH FEBRUARY 2005. EXT.P8: COPY OF THE CERTIFICATE IN PROOF OF THE PARTICIPATION OF THE PETITIONER FOR TEACHER'S TRAINING PROGRAMME ON INTERNATIONAL BUSINESS CONDUCTED BY THE SCHOOL OF MANAGEMENT STUDIES, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN FROM 4TH TO 8TH APRIL 2005. EXT.P9: COPY OF THE CERTIFICATE DATED 15/11/2005 ISSUED BY THE DEPT. OF COMMERCE AND STUDIES. EXT.P10: COPY OF THE EXPERIENCE CERTIFICATE DATED 20/11/2006 ISSUED BY THE UNIVERSITY OF CALICUT. EXT.P11: COPY OF THE NORMS FOR SELECTION TO THE POST OF READER IN THE CUSAT. EXT.P12: COPY OF THE EXTRACT OF CLAUSE 6.15 OF G.O.(P)NO.171/99/H.EDN. DATED 02/12/1999. EXT.P12(a): COPY OF THE EXTRACT OF APPENDIX VI OF G.O.(P)NO.171/99/H EDN. DATED 02/12/1999. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.32220/2006 ----------------------------------------------------------- Dated this the 16th date of October, 2008 JUDGMENT The prayers in this writ petition are to quash the selection of the 4th respondent as Reader in the Department of Management Studies of the first respondent University and to direct respondents 1 and 2 to appoint the petitioner in the aforesaid post. 2. Ext.P1 is an advertisement issued by the first respondent University inviting applications for various posts including that of Reader. Ext.P1 shows that qualifications and experience are those as prescribed by the UGC/AICTE. Among others, petitioner and the 4th respondent were two applicants. In terms of the UGC norms, the University constituted a Selection Committee under the Chairmanship of the Vice Chancellor, consisting of 7 other members. This included three subject experts and one among them was the WP(c).No.32220/06 2 3rd respondent. Interview was held on 22.11.2006 and according to the University, the ranked list was published on 30.11.2006 and the 4th respondent was the candidate selected. It was at this stage, the writ petition was filed with the aforesaid aforesaid prayers. The main contentions raised in the writ petition are that the 3rd respondent was biased in favour of the 4th respondent, an ineligible candidate. It is also contended that the selection norms were not complied with by the Selection Committee. 3. In so far as the allegations of bias against the 3rd respondent are concerned, at the outset, it should be stated that the 3rd respondent has not chosen to file any counter affidavit controverting the allegations contained in para `6' and ground `A ' of the writ petition. It is alleged that the 4th respondent was working under the 3rd respondent as a Research Scholar at the University of Kerala preparing himself for Ph.D Dissertation. It is also stated that the respondents 3 and 4 have together authored and published the book "Indian Economy in Globalized World." Therefore WP(c).No.32220/06 3 it was not fair or proper for the 3rd respondent to take part in the selection process. 4. In the reply affidavit filed by the petitioner, he has stated that his allegations as regards the bias against the 3rd respondent stands admitted. It is also stated that, since the 3rd respondent has co-authorised a book with the 3rd respondent, a presumption could be drawn that there was a profit making venture by both respondents 3 and 4. Learned counsel for the petitioner placed reliance on the judgments of the Apex Court in Ashok Kumar Yadav & Ors. V. State of Haryana & Ors. (1985(4)SCC 417) and M.P. Special Police Establishment V. State of M.P. and Others (2004(8)SCC7 88). In support of his contention that in the absence of an affidavit by the 3rd respondent, what is pleaded should be taken as admitted, the learned counsel for the petitioner relied on the judgment of the Apex Court in Express Newspapers Pvt. Ltd. & Ors. V. Union of India & Ors.(1986(1)SCC 133. 5. On the other hand this contention is sought to be WP(c).No.32220/06 4 controverted by respondents 1 and 2 in the counter affidavit filed. It is submitted that the 3rd respondent was only one among the 8 members in the Selection Committee. It is stated that his assessment was free from any bias and that he has not influenced any other members of the Selection Committee. It is also stated that there were other subject experts, who too have assessed the performance of the 4th respondent. It is reiterated that the selection was completed strictly in terms of the guidelines and that the assessment of the Selection Committee was approved by the Syndicate of the University. 6. In the counter affidavit the contention of bias has been dealt with in paragraph 5 and 9. In para 5 the constitution of the Selection Committee consisting of 8 members has been given and in para 9 it is stated that it was the Vice Chancellor who had constituted the selection Committee and that the 3rd respondent came to know the details of the candidates only during the interview. It is also stated that the 3rd respondent being only one of the WP(c).No.32220/06 5 members of the Selection Committee, could not have exerted any influence overriding the objection of others. It is contended that the presence of the 3rd respondent by itself could not vitiate the selection process. 7. The 4th respondent, the selected candidate has filed a detailed affidavit, admitting that the 3rd respondent was his Research Guide and that he has co-authored a book with the 3rd respondent. He also raised a plea that it is not open to the petitioner to raise any objection against the 3rd respondent. According to the 4th respondent, the interview was held on 22.11.2006 and even according to the petitioner he made enquiries on 30.11.2006 and filed the writ petition on 2.12.2006. It is contended that as the University had published the rank list on 30.11.2006, it was only after realizing that he was not selected, that the petitioner has filed this writ petition on 2.12.2006. It is stated that having participated in the selection process, without raising any objection and after taking his chance before the same committee, it is not open to the petitioner WP(c).No.32220/06 6 to challenge the constitution of the Selection Committee. It contended that in such circumstances the petitioner is estopped from raising such arguments. Counsel placed reliance on the judgment of the Apex Court in Dr. G. Sarana V. University of Lucknow and Ors. (1976(3)SCC 585) and Utkal University V. Dr. Nrusinngha Charan Sarangi & Ors. (1999(2) SCC 193). 8. It is also contended by the learned counsel for the 4th respondent that the allegation of bias is vague and that in the absence of the requisite plea and materials substantiating the same, this court should not take cognizance of the same. In support of this contention, reliance is placed on the judgment of the apex Court in Abraham Kuruvila V. SCT Institute of Medical Sciences & Technology and Ors. (2005(9) SCC 49). 9. Referring to Ext.P12(a), the learned counsel for the petitioner submits that, for the post of Reader, the process of selection should involve inviting the bio-data and reprints of three major publications of the candidates before WP(c).No.32220/06 7 the interview and the same should be assessed by the three external experts who are invited to interview the candidates. It is contended by the learned counsel for the petitioner that, as on the last date of application viz 22.11.2005, the 4th respondent had not satisfied his eligibility condition. It is contended that his publication was only in 2006 and that if that be so, he was an ineligible candidate. 10. The counsel for the 4th respondent disputes this contention. According to him Ext.P12(a) requires production of reprints of major publications of the candidate. Refering to para 10 of the counter affidavit filed by the University, it is contended by the counsel for the 4th respondent that he had 7 journal papers, one seminar paper, 5 book chapters and 4 other publications to his credit. It is stated that though the two volumes of books were edited by him in 2006, since he had other publications to his credit, that satisfied the requirement of production of major publications as prescribed in Ext.P12(a) norms of the UGC. In addition WP(c).No.32220/06 8 to this, it is also contended that this is not a plea raised in the writ petition. It is stated that this being a contention raised only in the reply filed by the petitioner to the counter filed by respondents 1 and 2, the 4th respondent had no notice of this plea to have answered it in better terms. 11. The University also would assert that the 4th respondent was eligible and that he had sufficient publications to his credit, which were assessed by the external experts. 12. The other contention raised is that the selection norms were not complied with. Ext.P11 indicates the various criteria for awarding index marks for the academic achievements of a candidate and according to the petitioner, this also has not been complied with . Though, this plea has also been raised in the reply to the counter filed by respondents 1 and 2, I do not think a detailed deliberation is necessary. This is for the reason that the University has made available the original mark sheets from which it is seen that for each of the criteria which are indicated in WP(c).No.32220/06 9 Ext.P11, separate marks have been awarded to all the candidates and therefore this plea of the petitioner is only to be rejected and I do so. 13. The plea of bias against the 3rd respondent is the main contention raised by the learned counsel for the petitioner. This contention is set up on two factual issues, one is that the 4th respondent was working under the 3rd respondent as a Research Scholar, in the University of Kerala preparing for his Ph.D Dissertation and the other is that respondents 3 and 4 have co-authored the book "Indian Economy in Globalised World". As already noticed, factually the assertions made by the petitioner stands uncontroverted. The 3rd respondent has not chosen to file an affidavit. The 4th respondent who has filed an affidavit has also admitted this fact in para 4. But the question is whether by virtue of these facts, this court should infer bias on the part of the 3rd respondent. 14. Reference was made to para 16 to 18 of the judgment in Ashok Kumar Yadav's case (1985(4) SCC WP(c).No.32220/06 10 417, where it has been held that what is objectionable is not that the decision is actually tainted with bias but the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision and that the basic principle underlying this rule is that justice should not only be done but must also appear to be done. In this judgment, the Apex Court referred to its judgment in A.K Kraipak V. Union of India (1969(2)SCC 262), where a selection was held to be vitiated for the presence of one of the candidate himself in the Selection Board. After noticing this judgment, the Apex Court, upheld the selection challenged in Ashok Kumar Yadav's case(1985(4)SCC 417) on the ground that the selection was conducted by the PSC, a constitutional body. 15. In the decision in M.P. Special Police Establishment v. State of M.P. And others {2004(8) SCC 788}, relied on by the counsel for the petitioner, it has been held that the question would be whether there is a WP(c).No.32220/06 11 reasonable ground for believing that there is likelihood of bias and actual bias would only lead to automatic disqualification where the decision maker is shown to have an interest in the outcome of the case. It was pointed out that the principle of real likelihood of bias has now taken a tilt to “real danger of bias” and “suspicion of bias”. In this judgment referring to the judgment in A.K.Kraipak v. Union of India {(1969) 2 SCC 262}, the Apex Court accepted the contention that bias is likely to operate in a subtle manner. 16. Though the legal position canvassed by the learned counsel for the petitioner, Sri. Roy Chacko, is beyond dispute, I am inclined to think that these principles cannot be applied to the case on hand. From the facts it is evident that the interview in question was held on 22.11.2006, when the petitioner participated in the selection process without any objection regarding the presence or participation of the 3rd respondent in the selection committee. Thereafter, the rank list was published on WP(c).No.32220/06 12 30.11.2006 and according to the petitioner he enquired about the outcome of the selection process on that day. Obviously he would have come to know that he did not get selected and it was thereafter that this writ petition was filed on 2.12.2006. Petitioner has not argued before me that he came to know of the facts on the basis of which bias is alleged, only subsequent to 30/11/2006. Therefore, on facts it is evident that without any protest petitioner participated in the selection process before a committee consisting of the third respondent, which also interviewed the fourth respondent and it was after realising that he was unsuccessful in the selection, that he filed this writ petition making allegations of bias against the third respondent. In such a factual situation, the principles of estoppel will operate against the petitioner as held by the Apex Court in Dr. G.Sarana v. University of Lucknow and others {(1976) 3 SCC 585} and Utkal University v. Dr.Nurusingha Charan Sarangi and others {(1999(2) SCC 193}. WP(c).No.32220/06 13 17. As can be seen from paragraph 15 of the judgment in Dr. G.Sarana v. University of Lucknow and others (1976(3) SCC 585) the Apex Court declined to examine the plea of reasonableness of bias or real likelihood of bias, on the ground that though the appellant knew all the relevant facts, he did not raise any protest against the constitution of the selection committee or before appearing for interview or even at the time of interview. It has been found that the party had voluntarily appeared before the committee, taken the chance of having a favourable recommendation and that having done so, it was not open to him to turn round and question the constitution of the selection committee. In arriving at this conclusion the court followed judgment in Manak Lal's case (1957 SCR 575). 18. Paragraph 9 and 10 of the judgment in Uthal University's case (1999 (2) SCC 193) being relevant, are extracted below for reference. “The last contention of the first respondent which has been accepted by the High Court is that of bias on the part of one of the members of the WP(c).No.32220/06 14 Selection committee. The so-called bias, as set out in the original petition, is that one of the experts was a member of an organisation which brought out a magazine of which the selected candidate was the Editor while one of the members of the Selection Committee was on the Editorial Board. Both the University as well as the selected candidate have pointed out that this fact was known to the first respondent throughout. He did not, at any time, object to the composition of the Selection Committee. He objected only after the selection was over and he was not selected. This would amount to waiver of such objection on the part of the first respondent. Reliance is placed on a decision of this Court in G. Sarana (Dr) v. University of Lucknow in which this Court found that depsite the fact that the appellant knew all the relevant facts, he had voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it was not open to him to turn round and question the constitution of the Committee. A similar view has been taken by this Court in the case of U.D.Lama v. State of Sikkim. What is more, we fail to see how on account of one of the experts being a member of an organisation or being on the Editorial Board of a magazine brought out by that organisation, he would necessarily be favourably inclined towards the Editor of that magazine. There is no allegation of any personal relationship between the member of the Selection Committee and the candidate. Not unnaturally, the member concerned of the Selection Committee has taken strong exception to the charge of bias. In his letter addressed to the University dt 10.5.1994, he has pointed out that he was, in fact, more closely connected with the first respondent, WP(c).No.32220/06 15 Dr.Nrusingha Charan Sarangi than the selected candidate. He has pointed out that the first respondent hails from his native place, belongs to the family of his priest and the first respondent has dedicated his book to the said member. All this is prior to the said interview. He has also pointed out that he agreed to be associated with the said Shri Jagannath Gabesana Parishad only because his teacher is one of its founders. Another expert on the Selection Committee, Dr.J.B.Mohanty, has also addressed a letter dt. 21.1.1994 to the University pointing out that the selected candidate was selected on merit after taking into consideration his academic record, Honours teaching experience, research activities and performance at the interview. The first respondent, although he was given time to file a counter affidavit hereafter all these documents were disclosed, has not filed any reply. Allegations of bias must be carefully examined before any selection can be set aside. In the first place, it is the joint responsibility of the entire Selection Committee to select a candidate who is suitable for the post. When experts are appointed to the Committee for selection, the selection should not be lightly set aside unless there is adequate material which would indicate a strong likelihood of bias or show that any member of the Selection Committee had a direct personal interest in appointing any particular candidate. The expert in question, in the present case, had no personal interest in the selection of any particular candidate. It is not even alleged by the first respondent that he had any such personal interest in the selection of the candidate who was selected. The mere fact that the expert as well as one of the candidates were members of the same organisation and connected with the magazine brought out by it would not be sufficient, in the facts and WP(c).No.32220/06 16 circumstances of the present case, to come to a conclusion that the selector had a specific personal interest in the selection of that candidate. The experts, in the present case, are experts in the Oriya language and are men of stature in their field. The candidates who would be considered for selection by the Selection Committee would also be candidates who have some stature or standing in the Oriya language and literature, looking to the nature of the post. Any literary association in this context, or any knowledge about the literary activities of the candidates would not, therefore, necessarily lead to a conclusion of bias. Looking to the circumstances of the present case, it is not possible to come to a conclusion that the Selection Committee was biased in favour of the candidate selected."(emphasis supplied) 19. In UD Lama's case, the Apex Court rejected the plea of bias, despite the allegation that one of the candidate was the wife of a member of the Committee, since objection was not taken as soon as the committee was constituted. Again it is judgment in Chandra Prakash Tiwari v. Shakuntala Shukla (2002 (6) SCC 127) it was held in the event a candidate appears at the interview and participates therein, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or that there was some lacuna WP(c).No.32220/06 17 in the process. This judgment has been followed by the Apex Court in its judgment in Union of India and others. v. S. Vinodh Kumar and others (2007(8) SCC 100). Evidently therefore, the petitioner having raised the plea of bias after having lost in the selection, in my view is estopped from raising the said contention and he is deemed to have waived any such objection. 20. Further from the mark sheets that are made available, I also notice that there is not much variation in the marks obtained by the petitioner and the fourth respondent. The consolidated mark sheet made available shows that the fourth respondent, was the first rank holder with 31.5 marks and the petitioner, secured only 27 marks. It is also seen that yet another candidate, one Sri. Vinod Thomas, had scored 29 marks. From the individual mark sheets that are made available, it is seen that while the petitioner got 6 marks for teaching experience, respondent No:4 was given only two marks. But, however, for publication when the fourth respondent got 5 marks, the WP(c).No.32220/06 18 petitioner got only one mark. That apart for performance in the interview the fourth respondent got 14 marks whereas the petitioner got only 10 marks. A perusal of the mark sheets show that the assessment of performance of the candidates was based on the unanimous decision of the Selection Committee, and, therefore, there is no material to conclude that the third respondent has, in any manner influenced the committee to select the fourth respondent. 21. Yet another contention that was raised by the petitioner is that the qualification of the candidates should be determined as at the time of notification and or atleast as on the last date for submitting application and that the fourth respondent did not satisfy the prescribed qualifications even as on the last date for submission of application. This contention is raised by the counsel for the petitioner on the basis that the fourth respondent had no publication to his credit at the time when he submitted his application. It was contended that he had effected publication only in 2006 whereas the last date for submitting WP(c).No.32220/06 19 application was 21.11.2005. The counsel also relied on the judgment of the Apex Court in Rekha Chathurvedi (Smt.) v. University