IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 WA.No. 924 of 2011() -------------------- AGAINST THE JUDGEMENT IN WPC.32446/2010 Dated 10/03/2011 .................... APPELLANT/RESPONDENT: ------------------- UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, UNIVERSITY BUILDINGS, THIRUVANANTHAPURAM-PIN-695 034. BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. RESPONDENT/PETITIONER: ------------------------- DR.B.KUMARI VALSALA, (RETIRED READER IN MUSIC) MAHARAJAS COLLEGE, ERNAKULAM, SWAPNA, PATTANAKKAD P.O., CHERTHALA,PIN-688 531. ADV. SRI.S.P.ARAVINDAKSHAN PILLAY FOR R1 SMT.N.SANTHA FOR R1 SRI.PETER JOSE CHRISTO FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29.09.2011, ALONG WITH CONT.CASE (CIVIL) NO. 697 OF 2011, THE COURT ON 25.10.2011 DELIVERED THE FOLLOWING: “CR” C.N.RAMACHANDRAN NAIR, Ag.C.J. & P.S.GOPINATHAN, JJ. --------------------------------- W.A.No.924 OF 2011 & Cont.Case(Civil) No.697 OF 2011 ---------------------------------- Dated this the 25th day of October, 2011 J U D G M E N T ~~~~~~~~~~~ P.S.Gopinathan, J. The appellant is the respondent in W.P.(C) No.32446/2010 instituted by the respondent. By Ext.P1 notification dated 22.4.2003, the appellant invited application for appointment to the post of Professor (Ezhava turn) in the Music Department of the appellant. Responding to Ext.P1, the respondent submitted Ext.P2 application. Respondent, as per Ext.P2 is the 1st rank holder both in B.A. and M.A Music. She is also a holder of Doctorate in Music from the appellant University. Though Ext.P1 is dated 22.4.2003 and Ext.P2 is dated 22.5.2003, the appellant didn't take any action to complete the selection process despite the fact that the respondent was the only applicant in the community quota. Aggrieved by the inertia on the side of the appellant, the respondent moved this Court vide W.A.No.924/2011 & C.C.C.No.697/2011 2 W.P.(C) No.13396/2006, judgment of which was produced as Ext.P3 dated 16.6.2006. On the basis of the submission made by the learned counsel for the appellant that the appellant would proceed with the selection process and bring it to a logical conclusion at the earliest the Writ Petition was closed by Ext.P3. The appellant didn't proceed with the selection process as submitted before this Court which is recorded in Ext.P3 judgment. Thereupon, the respondent moved a petition for contempt. The appellant submitted that sanction was accorded to constitute the Selection Committee after bringing notice that three Writ Petitions were pending before this Court. Recording the submission made by the appellant the contempt proceedings was closed by Ext.P4 judgment dated 1.7.2009. Thereafter, an interview was conducted on 10.5.2010. However, the result of the interview was not communicated to the respondent. Later, through an information obtained under the Right to Information Act the respondent came to know that the Selection Committee didn't recommend any of the candidates for appointment. Ext.P6 is the copy of the information so conveyed. Assailing the selection process and seeking a writ of mandamus commanding W.A.No.924/2011 & C.C.C.No.697/2011 3 the appellant to appoint the respondent as Professor in the Music Department in pursuance to Ext.P1 notification, the respondent moved the Writ Petition. 2. The Registrar of the appellant through a counter affidavit stated that the Selection Committee did not recommend any candidate due to the reason that the performance in the interview, quality of published work and research work are not upto the standard of qualification prescribed for the post of Professor in the notification and that the Vice Chancellor accepted the recommendation of the Selection Committee. Annexure-R1(a), a photocopy of the minutes of the selection committee was also produced. 3. The learned Single Judge by the impugned judgment found that Ext.R1(a) didn't contain any details and therefore, it could not be held to be valid. However, it was further found that it is for the expert academic bodies to evaluate the qualification of the candidates and the eligibility, especially, when a Selection Committee was formed. Therefore, while allowing the petition, W.A.No.924/2011 & C.C.C.No.697/2011 4 selection process as per Ext.R1(a) was held illegal. Without issuing a writ of mandamus directing the appellant to appoint the respondent, the appellant was directed to constitute a fresh Selection Committee for conducting an interview afresh and to take appropriate action in the matter. Alleging non compliance of the judgment, contempt case was filed. Thereupon, belated appeal was preferred. Delay in filing the appeal was condoned by separate order. 4. We have heard the learned counsel representing the standing counsel as well as Sri.S.P.Aravindakshan Pillai, the learned counsel appearing for the respondent and perused the records including Annexure-R1(a). 5. Ext.P1 notification didn't even stipulate minimum educational qualification. It is very vague leaving sufficient room for arbitrariness. The qualification prescribed as per Ext.P1 is as follows: “Qualification: An eminent scholar with published work of high quality actively engaged in research with 10 years experience W.A.No.924/2011 & C.C.C.No.697/2011 5 in post graduate teaching and/or research at the University/National Level Institutions, including experience in guiding research at doctorate level. OR An outstanding scholar with established reputation who has made significant contribution to knowledge.” 6. We had earlier mentioned the educational qualification of the respondent. It is submitted from the Bar that the respondent was working as a Selection Grade Lecturer in the Department of Music at Maharajas College, Ernakulam and had long term teaching experience. The fact that the respondent is the 1st rank holder in Degree and Post Graduate level as well as a research degree holder is not disputed. It is also not disputed that the respondent is the only candidate from the Community for which the post was reserved on rotation. Going by Annexure-R1(a), it is seen that she was interviewed along with three other candidates; of which two are admittedly belonging to forward community. The 4th candidate had crossed the age limit. The Selection Committee observed that there was no eligible candidate in the Ezhava community for W.A.No.924/2011 & C.C.C.No.697/2011 6 selection to the post of Professor in the Department of Music. The learned counsel for the respondent while supporting the judgment impugned heavily assailed the minutes of the Selection Committee. It was further submitted that though the notification was made as early as 2003 and the respondent was the only candidate qualified for the post, the selection process is being delayed somehow or other with ulterior motive, namely, to allow the Reader, who is holding charge of the post of the Professor to continue till his retirement and that despite the writ of this Court and the submission by the appellant before this Court in the earlier round that the selection process would be completed soon, no action was taken and that the selection process initiated only after the respondent moving the contempt proceedings. It was also submitted that the recommendation of the Selection Committee that the respondent is not eligible is malafide and that the selection process was an eye wash and that no specific reason is given by the Selection Committee and that the entire drama is to defeat the chances of a candidate entitled to reservation and therefore, the learned Single Judge was right in interfering with the process. Per contra, relying upon the W.A.No.924/2011 & C.C.C.No.697/2011 7 decision reported in Sugunan v. University of Kerala and other [1984 KLT 1086] and Tresa v. Fernandez v. University of Kerala and Others [1997(1) KLJ 102], it was submitted that the assessment made by the expert academic bodies shall be interfered only on limited grounds of illegality or patent material irregularity in the Constitution of the Committee, procedure or malafides and in this case, there is no such allegation and therefore according to the learned counsel the learned Single Judge erred in issuing a direction to the appellant to conduct a fresh selection process. 7. Having carefully gone through Annexure-R1(a) as well as Ext.P2 application, we find that in addition to the respondent securing 1st rank in Graduate and Post Graduate level and obtaining research degree, she is a member of Board of studies of four out of five Universities in the State with 21 years teaching experience as on the date of application. She had publications and a winner of Sree Chithra Award. She had performed more than 1000 music concerts. If such a person is found ineligible for the post of Professor in the University, no W.A.No.924/2011 & C.C.C.No.697/2011 8 doubt, there is something seriously rotten in the education and research system in the appellant University and in all the Universities in which she is a Member of Board of Studies or in the interview and selection process. If the respondent is not eligible to be posted as a Professor, how can she be a member of Board of Studies of the four Universities including the appellant. A curious question stares at the appellant. Learned counsel for appellant has no answer. We are also annoyed to hear that the appellant is managing the Music Department without a Head. In charge governance is being run for more than eight years. We cannot rule out the allegation of malafide advanced by the learned counsel for the respondent. The attempt to somehow or other avoid the respondent cannot be ruled out. 8. According to the learned counsel for the appellant, the respondent is an eligible candidate, but not upto the mark. Countering the above argument, the learned counsel for the respondent, while denying the allegation, canvassing our attention to Note II Rule 14 Part II Kerala State and Subordinate Service Rules, 1958 submitted that in the selection process to a W.A.No.924/2011 & C.C.C.No.697/2011 9 reserved seat, a candidate eligible for appointment cannot so be rejected stating that the candidate is not upto the mark and that such selection process is illegal. The relevant Note reads as follows: “Suitable candidates for the purpose of this Rule shall mean candidates with notified minimum qualification and marks in the selection process lowered to the extent necessary.” The above Note takes care of the situation like the one on hand. Therefore, according to the learned counsel, the respondent, who is a holder of Doctorate degree in Music and 1st rank holder in Graduate and Post Graduate Level, had sufficient qualification and that the respondent is eligible to the post, but was denied the selection by the Selection Committee for putting a very low mark in the interview in utter disregard to the above Note. 9. Going by Annexure-R1(a), it is seen that out of the 25 marks for the interview the respondent was awarded only 8 marks, whereas 20 marks were awarded to one candidate belonging to a forward community, who cannot be considered. Interviewing candidates belonging to forward community along W.A.No.924/2011 & C.C.C.No.697/2011 10 with reservation candidate for a reserved post itself is an illegality. By that alone, the selection process is vitiated and liable to be quashed. As against 12 marks set apart for producing ph.D, the respondent was awarded only zero mark. As against 8 marks for seminar/conference, the respondent was awarded only one mark. As against 20 marks for publication (2 marks for each paper), the respondent was awarded only 4 marks. Going by Ext.P1 notification, we find that the categorisation of the marks for the above three is out of the notification, but imported. The source remains mystery. There is no stipulation that the applicant should have produced ph.D. There is also no mention that the applicant should have attended National or International Seminar/Conferences. Though Ext.P2 would show that the respondent had four publications, marks were awarded only for two publications. Why the two publications were omitted is not disclosed. Though it is stated in paragraph 5 of the counter affidavit that the quality of the published work and research work are not upto the standard of qualification prescribed for the post of Professor in the notification, we fail to find out any such mention in Ext.P1. W.A.No.924/2011 & C.C.C.No.697/2011 11 Adding to that, there is nothing in Ext.R1(a) to show that any of the published work or research work was analysed or assessed by the Selection Committee. It is also pertinent to note that the respondent was awarded ph.D by the appellant University. How the said award can be now ignored as one not upto the standard is not at all disclosed by any statement of the Selection Committee. In fact, the plea of not upto the standard is the invention of the appellant or its Registrar and not that of the Selection Committee. According to the Selection Committee, the respondent is not eligible. Even the appellant cannot support that remark. The learned counsel fairly conceded that the remark of the Selection Committee is not correct. In this view of the matter, we find that the Selection Committee has thoroughly gone wrong. Their decision is arbitrary and perverse. Rejection of the respondent as not eligible is illegal as declared by the Single Judge. We find merit in the submission made by the learned counsel for the respondent. It appears that certain requirements, which were not at all mentioned in Ext.P1, were imported to the interview process and the respondent was awarded only less than 1/3rd of the mark for interview by which W.A.No.924/2011 & C.C.C.No.697/2011 12 alone the total marks obtained to the respondent was reduced. It is evident that the respondent who has very excellent academic record in her credit was rejected by stamping her 'not eligible'. It is nothing but ridicule. It appears that the Selection Committee is not aware of the meaning of the words 'not eligible'. Suffice to say that the decision of the Selection Committee is perverse, arbitrary and totally erroneous. Concerted effort to deny the right of a reservation candidate cannot be ruled out. The respondent being the only eligible candidate for the notified post, her suitability alone should have been the consideration of the Selection Committee. The Selection Committee didn't care to consider what ought to have been considered. Notified post being a reserved post and the respondent being the only candidate from the community, her suitability should have been assessed in the light of Note-II to Rule 14 quoted earlier. Interviewing or comparing her with candidates belonging to forward community is illegal. At no stretch of imagination we cannot follow the rationale of interviewing and comparing candidates belonging to reserved community along with candidates belonging to forward W.A.No.924/2011 & C.C.C.No.697/2011 13 community for a post exclusively reserved for a particular community. Lack of bonafide is apparent in the selection process. The learned counsel for the appellant could not satisfactorily explain the circumstance by which a Reader in the University was asked to hold the post of the Professor for the last more than 8 years after delaying the selection process for about eight years and then rejecting the respondent stating that she is not eligible. Malafides are evident so as to warrant judicial interference. 10. In the above circumstance, we find that the selection process impugned was vitiated. The learned Single Judge was right in interfering with the selection process and directing the appellant to constitute a Selection Committee for conducting interview afresh and to take appropriate decision. The appeal is devoid of merits. In the result, the appeal is dismissed. The appellant is directed to finish the selection process within 15 days from today. No costs. In view of the time granted as above Contempt W.A.No.924/2011 & C.C.C.No.697/2011 14 Proceedings are closed for the time being with liberty to the respondent to apply for revival in the event of failure of the appellant to complete the selection process within the abovesaid time limit. (C.N.RAMACHANDRAN NAIR, Acting Chief Justice) (P.S.GOPINATHAN, JUDGE) ps/11/11