IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WA.No. 571 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.7926/2004 Dated 01/01/2008 .................... APPELLANT/ RESPONDENT NO.4 ----------------------------- SHEENA, W/O.DR.P.V.SURESH, LECTURER DEPARTMENT OF COMMERCE AND MANAGEMENT STUDIES CALICUT UNIVERSITY, THENJIPALAM, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT RESIDING AT 'KARTHIKA', KOTTAPPADY, KOTTAKKAL PO MALAPPURAM DISTRICT. BY ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE SRI.M.RAMESH CHANDER RESPONDENTS/ PETITIONER AND RESPONDENTS 1 TO 3 ------------------------ 1. SATHEESH E.K., SREELAKSHMI, PALLIKKAL PO MALAPPURAM DISTRICT-673 653, WORKING AS LECTURER, DEPARTMENT OF COMMERCE, NSS COLLEGE, MANJERI. 2. UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY PO, 673 635 3. SELECTION COMMITTEE, REPRESENTED BY THE VICE CHANCELLOR, UNIVERSITY OF CALICUT CALICUT UNIVERSITY PO, 673 635. 4. DR.E.P.SAINULABDEEN, PROFESSOR (RETIRED) DEPARTMENT OF COMMERCE, UNIVERSITY OF CALICUT, PRESENTLY RESIDING AT KOHINOOR, THENJIPALAM, CALICUT UNIVERSITY PO-673 635 ADV. SRI.P.C.SASIDHARAN, SC, CALICUT UTY. FOR R2 TO 4 SRI.ALEXANDER THOMAS FOR R1 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A.No.571 OF 2008 ------------------------------- Dated this the 1st day of June, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The point that arises for decision in this case is the validity of selection to the post of Lecturer in the Department of Commerce and Management Studies of the University of Calicut. The 4th respondent in the writ petition is the appellant. The 1st respondent herein was the writ petitioner. 2. The brief facts of the case are the following: The University invited applications for appointment to various posts, including the post of Lecturer in Commerce and Management Studies, by Ext.P1 notification dated 1.9.2003. The appellant and 1st respondent were candidates at the selection to the above post of Lecturer. The qualified persons, who applied pursuant to the said notification, were called for an interview on 26.2.2004. The appellant herein was selected for the said post and she was served with Ext.P8 memo dated 2.4.2004 and pursuant to that memo, she joined duty on 7.4.2004 itself. The Syndicate W.A.No.571/2008 2 approved her appointment, as per Ext.P8(a) proceedings on 17.5.2004. Her probation was also declared in due course. Soon after the interview, the 1st respondent herein filed the writ petition on 2.3.2004, challenging the interview held for the selection. During the pendency of the writ petition, it was amended incorporating the challenge against Ext.P8 series also. 3. The 1st respondent contended that the Selection Committee, which interviewed the said respondent and other candidates including the appellant, was not properly constituted. As per Statute 4 of Chapter III of the Calicut University First Statutes 1977, the Selection Committee should consist of two subject experts, apart from other members mentioned therein. In the case on hand, there was only one subject expert in the Committee. Though Dr.Surya Rao and Prof.Manickam were nominated as experts from outside the University, Dr.Surya Rao could not participate in the interview, owing to personal inconvenience. So, the Committee, which interviewed the candidates, was not properly constituted and the same makes the selection illegal. Secondly, it was contended that the award of marks to be made by the Selection Committee should be as per W.A.No.571/2008 3 Ext.P4 order issued by the University. But, in this case, the norms prescribed in Ext.P4 were not followed by the Committee. Marks were awarded arbitrarily, without properly considering the various parameters mentioned in that order, for the interview. The same also vitiated the selection, it was contended. 4. The appellant resisted the prayers in the writ petition and met the contentions raised on behalf of the 1st respondent. According to her, once the 1st respondent participated in the selection knowing fully well the defect in the constitution of the Committee and took a chance of being selected, he cannot turn round and complain about the defect in the constitution of the Committee. His conduct of taking a chance before the Committee disables him from challenging its constitution later. The 2nd point was met by the appellant, pointing out that the guidelines contained in Ext.P4 are framed by the Academic Council. The Academic Council has no power or authority to frame such guidelines. Suggestions, if any, given by the Academic Council have to be approved by the Senate; then only, the same will become statutory and binding. It was also pointed W.A.No.571/2008 4 out that after the issuance of Ext.R4(a), Ext.P4 is no longer in force. Therefore, the reliance placed on Ext.P4 is unsustainable. Ext.R4(a) is a regulation framed by the University, prescribing the qualifications for appointment of teachers in the University and Colleges under it. 5. The learned Single Judge considered the rival submissions and accepted both the contentions raised on behalf of the 1st respondent. The learned Single Judge found that two outside experts are included in the Selection Committee to ensure transparency of the selection. The absence of one of the outside experts goes to the root of the matter and therefore, the selection is vitiated. On the second point, the learned Single Judge found that in view of Ext.P5 judgment, which was affirmed by the Division Bench in Ext.P6, the attack against Ext.P4 cannot be accepted. The learned Single Judge held that this Court has upheld Ext.P4, as the guidelines governing the norms for selection. Referring to the marks awarded to the various candidates, including the appellant and the 1st respondent, the learned Single Judge held that the marks were not awarded properly, in the light of the norms contained in Ext.P4. W.A.No.571/2008 5 Therefore, the selection is vitiated. The contentions raised by the appellant relying on Ext.R4(a) was rejected by the learned Single Judge. Ext.R4(a) does not deal with any norms for selection, it only prescribes the qualifications for appointment to various posts, it was held. In the result, the learned Single Judge quashed the impugned orders concerning the selection and appointment of the appellant and directed the University to make fresh selection in accordance with law, from among the applicants already applied pursuant to Ext.P1. 6. Feeling aggrieved by the judgment of the learned Single Judge, the appellant has preferred this appeal. Learned senior counsel, Mr. O.V.Radhakrishnan, appearing for the appellant reiterated the contentions of the appellant, which we have already referred above. The learned senior counsel also added that the Academic Council has no power to frame any guidelines in the nature of Ext.P4. If at all, the University wants the Selection Committee to follow any guidelines, there should be regulations framed in accordance with law. It should have the approval of the Senate and the same should be published in the gazette also. In support of the submission, the learned W.A.No.571/2008 6 senior counsel relied on the decision of the Full Bench of this Court in Mary Philipose v. State of Kerala [1981 KLT 380], wherein the powers of the Academic Council were dealt with. The learned senior counsel also submitted that the absence of a member of the Selection Committee will not affect the validity of its proceedings. In support of that decision, the learned senior counsel relied on the decisions of the Apex Court in Ishwar Chandra v. Satyanarain Sinha [AIR 1972 SC 1812] and Union of India and others v. Somasundaram Viswanath and others [1989 (1) SC 175]. 7. We also heard Mr. P.C.Sasidharan, learned Standing Counsel for the University and also Mr. Alexander Thomas, learned counsel for the 1st respondent. They would point out that in view of Exts.P5 and P6 judgments, the University is bound to follow Ext.P4. Since the Selection Committee has no power to frame norms for its guidance, it has to follow Ext.P4. They also submitted that if marks were awarded strictly in accordance with Ext.P4, the appellant would not have got 1st rank. The learned Standing Counsel also made available to us, the award of marks made by the Selection Committee for the W.A.No.571/2008 7 interview held on 17.3.2008, pursuant to the judgment of the learned Single Judge, impugned in this appeal. 8. We went through the materials and documents on record and also considered the rival submissions made at the Bar. We feel that it is unnecessary for us to finally pronounce in this case, whether the absence of a single member of a Committee will result in vitiating the entire selection. Therefore, it is unnecessary to consider the point whether the 1st respondent, who participated in the interview, could challenge the constitution of the Selection Committee. But, we uphold the judgment of the learned Single Judge on the second point that the University was bound to follow Ext.P4, in the matter of selection and in this case marks were not awarded as stipulated in Ext.P4. The contention of the appellant is that Ext.P4 is framed by the Academic Council and therefore it is invalid. According to us, it is an executive order issued by the University. Of course, for issuing that executive order, the suggestions made by the Academic Council have been accepted. The University does not have a case that it is a regulation. If it is a regulation, of course, it should be approved by the Senate and published in the W.A.No.571/2008 8 gazette. Even if, Ext.P4 is non-statutory and it is only an executive order giving the guidelines, still the same will bind the University, in view of Exts.P5 and P6 judgments. The decision relied on by the learned senior counsel in Mary Philipose v. State of Kerala [1981 KLT 380] has no application to the facts of this case. Now, it is settled law that the Selection Committee cannot lay down its own norms for the purpose of selection, in view of the decision of the Apex Court in Dr.Krushna Chandra Sahu and others v. State of Orissa and others [1995 (6) SCC 1] and various decisions of this Court, following the same. 9. Further, if Ext.P4 is invalid, the entire selection will go. The contention of the learned senior counsel for the appellant is that if Ext.P4 goes, the selection can be made, only, based on interview. Again, it is a matter for the University to decide whether the selection should be done in that manner. The Selection Committee cannot arrogate that power and make the selection, only, based on interview. So, the argument of the appellant regarding the validity of Ext.P4 will not take her anywhere. W.A.No.571/2008 9 10. Next, we will refer to the findings of the learned Single Judge that marks were not awarded as per Ext.P4 order. The minutes of the Selection Committee are available at pages 156 to 160 of the paper book. The broadsheet relevant for selection is available at pages 157 & 158. As per the said document, the appellant got 20 marks for qualification, 5 marks for teaching experience and 5 marks for additional degree. She got the highest marks for interview, that is, 23 out of 25. According to the University, in fact, she was not entitled to get any marks for experience, as she had only experience of teaching as Guest Lecturer for three months. Her additional degree is B.Ed. For that, no additional marks could have been granted. The 1st respondent was awarded 40 marks for qualification. In fact, he is eligible only for 35 marks, according to the University. For publication, he was entitled to 6 marks, whereas, he was awarded only 2 marks. For teaching experience, he was entitled to 15 marks, but he was awarded only 5 marks. In the interview, he was awarded only 5 marks out of 25. Thus, he got 52 marks, whereas, the appellant got 53 marks. The 1st respondent was a candidate for selection to the post of Reader also. For that post, he was awarded for W.A.No.571/2008 10 qualification 35 marks, for publication 10 marks, for teaching experience 15 marks and for interview 7 marks. Though the parameters were the same, the very same Committee awarded him 67 marks for the post of Reader and only 52 marks for the post of Lecturer. The above facts would show that marks were awarded arbitrarily. There is manifest illegality committed by the Selection Committee in the award of marks for selection to the post of Lecturer. We also notice that being aware of the irregularity in the award of marks, the appellant has chosen to challenge Ext.P4 itself. We fully agree with the finding of the learned Single Judge that marks were not awarded in accordance with the norms and the same was done arbitrarily. Therefore, we are of the view that the selection and appointment of the appellant was rightly set aside by the learned Single Judge. We affirm the same. In the result, the Writ Appeal is dismissed. No costs. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps