IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE V.GIRI & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 33661 of 2005(G) -------------------------------------- PETITIONER: ------------------- DR. CYRIL JOHNSON, HEAD OF DEPARTMENT, DEPARTMENT OF BOTANY AND BIO-TECHNOLOGY, ST.XAVIER'S COLLEGE, THUMBA, THIRUVANANTHAPURAM. BY ADV.MR.P.C.SASIDHARAN. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, KERALA UNIVERSITY CAMPUS, THIRUVANANTHAPURAM. 3. THE VICE CHANCELLOR, KERALA UNIVERSITY, KERALA UNIVERSITY CAMPUS, THIRUVANANTHAPURAM. 4. THE SELECTION COMMITTEE CONSTITUTED FOR SELECTION TO THE POST OF CONTROLLER OF EXAMINATIONS IN THE UNIVERSITY OF KERALA, REPRESENTED BY ITS CHAIRMAN (VICE CHANCELLOR, UNIVERSITY OF KERALA, KERALA UNIVERSITY CAMPUS, THIRUVANANTHAPURAM). W.P.(C). NO.33661/2005-G: 5. M.T. SULEKHA, PRINCIPAL, N.S.S. COLLEGE FOR WOMEN, KARAMANA, THIRUVANANTHAPURAM. R1 BY GOVT. PLEADER SMT. R. BINDU, R2 TO R4 BY MR.M.RAJAGOPALAN NAIR, SC, KERALA UTY., R5 BY ADV. MR.GEORGE POONTHOTTAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2009, ALONG WITH WPC NO. 35595 OF 2005, THE COURT ON 07/10/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.33661/2005-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTIFICATION ISSUED BY THE UNIVERSITY DTD. 25/07/05. EXT.P.2: COPY OF THE NOTIFICATION ISSUED BY THE UNIVERSITY DTD. 13/01/05. EXT.P.3: COPY OF THE OBJECTION FILED BY THE PETITIONER. EXT.P.4: COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT DTD. 12/01/2005. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE NOTIFICATION. EXT.R2.B: COPY OF THE BIO DATA OF THE R.5. EXT.R2.C: COPY OF THE SCORE SHEET. EXT.R2.D: COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE HELD ON 06/12/2005. EXT.R2.E: COPY OF THE NOTIFICATION OF THE UNIVERSITY DTD. 13/01/2005. EXT.R2.F: COPY OF THE NOTIFICATION OF THE KERALA UNIVERSITY DTD. 01/07/2005. EXT.R2.G: COPY OF THE LIST. EXT.R2.H: COPY OF THE NORMS FOR SELECTION OF TEACHING STAFF IN THE KERALA UNIVERSITY. EXT.R2.I: COPY OF THE CHART OF MARK LIST. //TRUE COPY// P.S. TO JUDGE. Prv. K.BALAKRISHNAN NAIR, V.GIRI & C.T.RAVIKUMAR, JJ. ---------------------------------------- W.P.(C)Nos.33661 & 35595 of 2005 ---------------------------------------- Dated this the 7th day of October, 2009. JUDGMENT Giri, J. The point that has been formulated for consideration of this bench is whether Antony P.A. V. Krishnadas M.N. {ILR 2007(1) Kerala 244} lays down the correct legal position concerning the powers of the selection committee in evolving norms for a selection. The issue arises in the context of selection to the post of Controller of Examinations in the Kerala University. The committee is constituted in terms of the provisions of the Kerala University First Statutes, 1977 and it should consist of the Vice Chancellor and two other Syndicate members. The Controller is to be appointed by the Syndicate of the University on the recommendation of the selection committee. The First Statutes also provide for the powers and duties of the Controller. The Statutes do not specifically provide for the norms that are to be adopted by the Selection Committee. The Syndicate also did not lay down the norms. W.P.(C)Nos.33661 & 35595 of 2005 :: 2 :: Norms were evolved by the selection committee on their own, apparently in the course of conducting the selection and they proceeded to select the 4th respondent. Recommendations of the selection committee were accepted by the Syndicate and the 4th respondent was appointed as Controller of Examinations. This has been called in question in these writ petitions. 2. Learned single Judge, before whom the writ petition came up for consideration, referred to the stand taken by the University in their counter affidavit and observed that the selection committee had evolved their own norms for the selection. It was observed that the committee had arrogated to itself the power of framing the norms for selection. This, the learned Judge observed, was clearly inconsistent with the law laid down by the Supreme Court in Dr.Krushna Chandra Sahu and others v. State of Orissa {1995(6) SCC 1}, wherein the Supreme Court held that the selection committee does not have the inherent jurisdiction to lay down the norms for selection, nor can such power be assumed or inferred by implication. Learned single Judge W.P.(C)Nos.33661 & 35595 of 2005 :: 3 :: observed that a contrary view has been taken by a bench of this court in Antony P.A. V. Krishnadas M.N. {ILR 2007 (1) Kerala 244}. The Bench in Antony held that where the selection committee is statutorily constituted, but the statute which provides for the constitution of the selection committee does not, at the same time, lay down any guidelines or norms to regulate the selection, then the committee is entitled to evolve its own norms, which have to be fair and reasonable. In other words, the Division Bench proceeded to uphold the power of the selection committee to evolve their own norms in the absence of a specific prescription in that regard in the statute, which in the first place had provided for the constitution of the committee. Learned single Judge, after observing that the dictum in Antony was inconsistent with the principle laid down in Dr.Krushna Chandra Sahu and others v. State of Orissa {1995(6) SCC 1}, adjourned the writ petitions to be heard by a Division Bench. The Division Bench felt that the matter, requires consideration by a Full Bench, so as to avoid conflicting decisions by co-ordinate benches. Accordingly, these cases as such have been W.P.(C)Nos.33661 & 35595 of 2005 :: 4 :: referred to a Full Bench and essentially the point for consideration is whether Antony lays down the correct legal position concerning the powers of the selection committee to evolve the norms for selection. 3. Reference to the facts in W.P.(C)No.35595/05, would be comprehensive of W.P.(C)No.33661/05 as well. 4. By Ext.P1 notification dated 25.7.2005, the University of Kerala invited applications for appointment to the post of Controller of Examinations. Copy of the said notification reads as follows: “The qualifications prescribed are as follows: “A first or second class Masters Degree or equivalent qualification, about 5 years teaching experience at University level and about 5 years administrative experience in a responsible post, including management of staff in a University or College or Education Department or similar Institutions (Academic qualification, age and experience relaxable in the case of candidates otherwise highly qualified).” W.P.(C)Nos.33661 & 35595 of 2005 :: 5 :: 5. It seems that 35 persons applied and 21 persons appeared for the interview. The selection committee consisted of the Vice Chancellor and two members of the Syndicate of the University. 6. It is common case that the criteria for selection are not either prescribed in the statute or otherwise laid down by the appointing authority viz., Syndicate of the University. It is also common case that the selection committee did not evolve the norms or publish the same, prior to the interview. The selection committee formulated their criteria for selection on the date of interview. It was further contended that the 4th respondent did not have 5 years administrative experience. She was also a member of the Syndicate till 26.11.2005, just three days prior to the interview. In fact, she resigned from the Syndicate vide letter dated 24.11.2005, which was accepted on 26.11.2005. The 4th respondent was able to influence the constitution of the selection committee, it is contended by the petitioner. 7. It was further contended by the petitioners that the criteria for assessing the comparative merits of the W.P.(C)Nos.33661 & 35595 of 2005 :: 6 :: candidates were formulated by the selection committee only on 29.11.2005, i.e. the date on which they conducted the interview. One aspect, which has been pointed out relates to the awarding of 8 marks to the 4th respondent for guiding P.Hd students at the rate of 2 marks for each P.Hd students. But the petitioner in W.P.(C)No.33661/05 was not awarded any marks for guiding M.Phil Research Scholars. The petitioner further contends that the selection committee had erred in awarding equal marks to him as also to the 4th respondent for administrative experience, since the 4th respondent had only two years and 6 months period of actual experience. Two tabular statements have been given by the petitioner in W.P.(C)No.35595/05 in an attempt to graphically illustrate the impact of the contention that the selection committee had formulated norms, on the date of the interview with the clear intention of facilitating the award of higher marks in favour of the 4th respondent and consequently, ensuring her selection. The following is the statement showing the marks actually awarded to the petitioner in W.P.(C)No.35595/05 and the 4th respondent. W.P.(C)Nos.33661 & 35595 of 2005 :: 7 :: Dr.Keshav Mohan (Petitioner) Dr.M.T.Sulekha (3rd respondent) Academic qualification 30 30 Addl. Qualification- Ph.D. 10 10 Teaching Experience 10 10 Administrative Experience 7 7 Publication 5 5 For producing Ph.D. - 8 Interview 20 20 Total 82 90 8. If marks were awarded to the petitioner for guiding M.Phil students and if the 4th respondent is awarded marks only for the actual administrative experience which she had acquired, then the statement of marks, according to the petitioner, would read as follows: Dr.Keshav Mohan (Petitioner) Dr.M.T.Sulekha (3rd respondent) Academic qualification 30 30 Addl. Qualification- Ph.D. 10 10 Teaching Experience 10 10 Administrative Experience 7 2 Publication 5 5 For producing Ph.D. 10 10 Interview 20 20 Total 92 85 W.P.(C)Nos.33661 & 35595 of 2005 :: 8 :: 9. It was inter alia on these premises that the selection, as such, has been impugned in the writ petition. 10. Similar contentions have been taken up by another candidate, who had participated in the interview, in W.P.(C)No.33661/05 as well. 11. Per contra, the University, as also the selected candidate contend that the selection committee was constituted by the Syndicate in terms of the provisions of the Act and the first statutes. The fact that the 4th respondent was a member of the Syndicate till 24.11.2005 is of no consequence as she had ceased to be a member on 26.11.2005, well before the interview was actually conducted. Neither the Act, nor the statutes specifically provide for any criteria that have to be adopted by the selection committee, called upon to assess the comparative merits of the rival candidates, who participate in the selection to the post of Controller of Examinations. The body is constituted in terms of the statutes. Since the statutes do not specifically provide for the criteria and the Syndicate, the appointing authority also did not lay down the guidelines on W.P.(C)Nos.33661 & 35595 of 2005 :: 9 :: its own, the selection committee was perfectly competent to adopt such criteria as are reasonable and fair. The allegation that the 4th respondent did not have adequate administrative experience, as prescribed in the notification is also denied. It was further contended that once the criteria are found to be fair and reasonable, going by the parameters normally adopted in cases of judicial review, there is no vitiating factor in the selection, which would warrant interference by this court. 12. We heard Mr.N.Sugathan, Mr.P.C.Sasidharan, learned counsel for the petitioners, Mr.Rajagopalan Nair, learned counsel for the University and Mr.George Poonthottam, learned counsel for the 4th respondent, the selected candidate. 13. As we indicated at the outset, the main issue that has been posited for consideration by the Full Bench is whether the selection committee constituted under the Statutes would be competent to evolve and adopt its own criteria for assessing the comparative merits of the candidates. The correctness of the dictum laid down by the W.P.(C)Nos.33661 & 35595 of 2005 :: 10 :: Division Bench in Antony {ILR 2007(1) Kerala 244} also comes up for consideration. 14. Before we deal with this main issue, we would like to refer to the contention raised by the learned counsel for the petitioners that the selection as such is vitiated since the 4th respondent was a member of the Syndicate till 26.11.2005 and it was the Syndicate which had constituted the selection committee. We do not find any force in this submission. True, the 4th respondent was a member of the Syndicate. But she had tendered her resignation on 24.11.2005 and it was accepted and the factum relating to the resignation was also notified on 26.11.2005. The selection committee had met only on 29.11.2005. There was no statutory bar which stood in the way of the 4th respondent appearing before the selection committee or aspiring for the post of Controller of Examinations. No statutory provision has been brought to our notice which provides that membership of the Syndicate will act as a disqualification to seek appointment under the University. W.P.(C)Nos.33661 & 35595 of 2005 :: 11 :: 15. The fact that the 4th respondent was a member of the Syndicate when the selection committee was actually constituted is also of no consequence as such in the facts and circumstances of the case. The constitution of the selection committee is governed by the provisions of the University Act or the First Statutes. The selection committee could not have been constituted otherwise than in the manner prescribed in the statute. There are no allegations of any personal bias against the individual members of the selection committee and such persons are not eo-nominee parties to the writ petition as well. 16. We do not find any substance in the aforementioned contention taken up by the petitioners. 17. The main issue, which has been debated upon, relates to the competence of the selection committee, constituted by the Syndicate of the University to evolve its own norms for the selection. It is appropriate to refer to the relevant provisions in the statutes at this juncture. 18. Section 9 the University Act provides for the officers of the University and Controller of Examinations is W.P.(C)Nos.33661 & 35595 of 2005 :: 12 :: one of the officers so enumerated. Section 13 of the Act provides that the Controller of Examinations is a whole time salaried officer appointed in this regard by the Syndicate. Clause 25 of Chapter II of the Kerala University First Statutes, 1977 {hereinafter referred to as the “First Statutes”} provides for the mode of appointment of the Controller of Examinations. Clause 25(1) being relevant is extracted hereunder: “25. Mode of appointment of the Controller of Examinations: (1) The Controller of Examinations shall be appointed by the Syndicate on the recommendation of Selection Committee consisting of the Vice-Chancellor as Chairman and two other Syndicate members, for a period of one year in the first instance. He shall be a whole time salaried officer of the University and be appointed by a written order. In case his appointment has been continued for over a period of one year, he shall be deemed to be on probation for a period of one year (Commencing from the date of is first appointment) within a continuous period of two years. The written order of his appointment shall be lodged with the Vice-Chancellor.” W.P.(C)Nos.33661 & 35595 of 2005 :: 13 :: 19. The qualifications for the post of Controller of Examinations is prescribed in the schedule to the Kerala University First Ordinances and it is prescribed as the same as that of a Registrar. It is this qualification which has been noted in Ext.P1 notification as well. 20. It cannot be gainsaid that the statutory provisions which provide for the post of Controller of Examinations, and that which provides for the method of appointment to the said post (Clause 25 Chapter II of the First Statutes) do not lay down the criteria that have to be adopted by the selection committee while conducting the selection. It also cannot be gainsaid that in the instant case, the selection committee evolved their own criteria, without being guided by either any statutory prescription or any guidelines laid down by the appointing authority in that behalf. Such criteria adopted by the selection committee were not mentioned in the notification. In fact, they were not even published at any point of time, prior to the interview held on 29.11.2005. The criteria, as such, adopted by the selection committee are discernible only from the minutes of W.P.(C)Nos.33661 & 35595 of 2005 :: 14 :: the selection committee held on 29.11.2005. Those minutes have been produced as Ext.R2(d), along with the counter affidavit filed by the University in W.P.(C)No.33661/05. It would be appropriate to extract the minutes of the meeting of the selection committee so held on 29.11.2005 in its entirety. “Minutes of the Meeting of the Selection Committee constituted to interview candidates for the post of Controller of Examinations in the University of Kerala. Venue : VC's Chamber Time : 10.30 AM Date : 29.11.2005 Members present: 1. Dr.M.K.Ramachandran Nair, Vice-Chancellor. Sd/- 2. Dr.V.P.Mohammed Kunju Metharu, Member, Syndicate. Sd/- 3. Dr.Varghese Perayil, Member, Syndicate. Sd/- At the outset the Committee discussed in detail the various aspects to be considered while considering the applications for the post of Controller of Examinations and resolved that:- 1. Weightage at the rate of 25 and 30 be awarded respectively to candidates who secured II class and I class in their PG Exams. W.P.(C)Nos.33661 & 35595 of 2005 :: 15 :: 2. A weightage of 10 marks be awarded to candidates possessing Ph.D Degree. 3. A weightage of 1 mark be awarded for each year of teaching experience subject to a maximum of 10 marks. 4. The weightage for administrative experience be @ 1 mark for one year of service subject to a maximum of 10 marks. 5. To award 1 mark for each research paper/book published limiting the maximum to 5 marks. 6. To award 2 marks for each Ph.D produced, the maximum of which is limited to 10 marks. And 7. The maximum marks for the interview be 25 marks, so that the total marks come to 100. Also resolved that while awarding marks for the interview proper weightage be given for the candidate's academic excellence, his/her exposure to and awareness of the University administrative systems in general and the University examination systems in particular and their performance in the interview. W.P.(C)Nos.33661 & 35595 of 2005 :: 16 :: The process of interview commenced at 11.00 AM. Out of the 35 candidates called for interview, only 21 candidates appeared before the Selection Committee. After assessing the relative merits of the candidates according to the stipulations above, the Committee unanimously recommended that the post of Controller of Examinations be offered to:- Dr.M.T.Sulekha, B21, Abhayam, Sreerangam Lane, Sasthamangalam, Thiruvananthapuram-10. The whole process of interview came to an end at 5 PM.” 21. It is also not in dispute that the selection committee had met for the first time on 29.11.2005 and the criteria for assessing the merits of the candidates were apparently evolved by the selection committee on the same day. It is also not in dispute that the candidates including the petitioners and the 4th respondent were also interviewed on 29.11.2005. We find it difficult to brand as fanciful, the W.P.(C)Nos.33661 & 35595 of 2005 :: 17 :: contention that the selection committee decided to select the 4th respondent and then evolved the criteria for assessing the comparative merits of the candidates. In other words, it is contended that, after having decided to select the 4th respondent, the criteria, the adoption of which would justify her selection, as such, were evolved by the selection committee. When the selection committee commenced its proceedings, the curriculum vitae of the candidates were before it. If it wanted to favour a candidate, norms for awarding marks could be modulated accordingly. Experience in teaching and administrative experience are notified qualifications. If a candidate is having longer experience in teaching and lesser in administration, he can be superseded by lowering the rate of marks per year for teaching and increasing the rate for administrative experience. Ext.P1 notification, which we have already extracted in para 4, does not mention either about publication of research paper/book or production of Ph.D, as desirable qualifications or grounds for preference. Possibility of some candidates not furnishing those details in their curriculum vitae, as they are not W.P.(C)Nos.33661 & 35595 of 2005 :: 18 :: relevant in terms of Ext.P1, cannot be ruled out. Thus, the above two parameters fixed by the Committee are susceptible to the charge of being tailor-made to suit a particular candidate. This brings us to the question that has to be considered by the Full Bench viz., whether the selection committee, constituted as per the statutory provisions, can evolve its own norms for conducting the selection? 22. There are two facets to this contention. The first would arise in cases where the statutory provisions providing for the constitution of the selection committee by themselves, also lay down the criteria to be followed by the selection committee. It has been the consistent view taken by the Supreme Court that in such cases, the selection committee has no jurisdiction to either relax any of the qualifications laid down by the statutory requirements or follow any method, which is strictly not in terms of the statutory prescriptions. There is neither power of relaxation nor the power to vary, available in this regard to the selection committee [see the decisions in P.K.Ramachandra Iyer v. Union of India [1984(1) SCC 141], Umesh Chandra W.P.(C)Nos.33661 & 35595 of 2005 :: 19 :: Shukla v. Union of India [1985(3) SCC 721] and Durgacharan Misra v. State of Orissa & others [1987(4) SCC 646]}. Any such action taken by the selection committee would be clearly ultra vires, thereby vitiating the selection as such. 23. But, the second facet of the aforementioned contention arises in cases where the statutory provisions providing for the constitution of the selection committee are sub-silentio as regards the criteria to be adopted by the selection committee, while assessing the comparative merits of the candidates. It is contended that in the present case, the provisions of the Act and the first statutes provide for the constitution of a selection committee. But, they are silent as regards the criteria to be evolved by the selection committee. There is no dispute that the Syndicate is the appointing authority and so constituted by the statutory provisions as such. The petitioners contend that since the statutory provisions providing for the constitution of the selection committee are silent as regards the criteria to be adopted by the selection committee, subject to the criteria being fair, W.P.(C)Nos.33661 & 35595 of 2005 :: 20 :: reasonable and transparent, it will be open to the committee to evolve its own criteria. Is this so? 24. The petitioners rely on the judgment of the Supreme Court in Dr.Krushna Chandra Sahu {1995(6) SCC 1} to contend for the position that the selection committee has no jurisdiction in this regard. The Supreme Court was, in the said case, concerned with appointment to the post of Junior Teachers in a College affiliated to the University. Selection was to be done by a Board constituted in accordance with the statutory rules framed in that regard. The criteria or the norms for selection were not statutorily prescribed. It seems that the members of the selection board decided to adopt the confidential reports of the candidates, who were already employed as a Homoeopathic Medical Officers, as the basis for determining their suitability. This, the Supreme Court held, was impermissible and was ultra vires the powers conferred on the selection board. Paragraphs 32, 33, 34 and 36 of the said judgment contain the dictum laid down by the Supreme Court in this regard. They read as follows: W.P.(C)Nos.33661 & 35595 of 2005 :: 21 :: “32. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Article 309. It is basically the function of the rule-making authority to provide the basis for selection. This Court in State of A.P. v. V.Sadanandam observed as under: (SCC PP.583-84, para 17) 'We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old rule