IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 WP(C).No. 4300 of 2008(J) -------------------------------------- PETITIONER(S): ------------------------ SREEJITH KANHOLI, AGED 32 YEARS, S/O. K.SREEDHARAN, VAISAKH, MALADATH THAZHAM, POST KOTTOOLI, CALICUT-16. BY ADV. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SRI.THOMSTINE K.AUGUSTINE SRI.C.N.GOPAKUMAR RESPONDENT(S): ---------------------------- 1. UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, POST CALICUT UNIVERSITY, MALAPPURAM DISTRICT. 2. THE SELECTION BOARD (CONSTITUTED TO THE POST OF ASSISTANT CURATOR IN THE DEPARTMENT OF ZOOLOGY), REPRESENTED BY ITS CHAIRMAN, UNIVERSITY OF CALICUT, POST CALICUT UNIVERSITY, MALAPPURAM DISTRICT. 3. SUDHEER K., THARAMGINI, THUVVAKODE P.O., CHEMANCHERI VIA, KOZHIKODE-673 304. ADV. SRI.P.C.SASIDHARAN, SC, UTY OF CLT SRI.ALEXANDER THOMAS FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.4300/2008 J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF ADVERTISEMENT APPEARED IN MATHRUBHOOMI THOZHILVARTHA DTD.1/1/05. EXT.P2: COPY OF MEMO NO.RT/7851/2004 DTD. 15/12/05 ISSUED BY THE 1ST RESPONDENT. EXT.P3: COPY OF THE INTRIM ORDER IN WP(C) NO.36320/05 DTD. 18/08/06 OF THIS HON'BLE COURT. EXT.P4: COPY OF THE JUDGMENT IN WP(C) NO.15795/07 DTD. 2/08/07 OF THIS HON'BLE COURT. EXT.P5: COPY OF THE MEMO NO.RT/7851/2004 DTD. 29/12/07 ISSUED BY THE 1ST RESPONDENT. EXT.P6: COPIES OF THE NEWS ITEMS APPEARED IN MALAYALA MANORAMA, MADHYAMAM AND CHANDRIKA DAILIES DTD. 30/01/08. EXT.P7: COPY OF THE REPRESENTATION DTD. 31/1/08 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P8: COPY OF THE REQUEST DTD. 31/01/08 SUBMITTED BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER, UNIVERSITY OF CALICUT. EXT.P9: COPY OF THE CHART PREPARED BY THE 1ST RESPONDENT INDICATING THE QUALIFICATIONS AND EXPERIENCE OF THE CANDIDATES. EXT.P10: EXTRACT OF THE MINUTES OF THE SYNDICATE MEETING HELD ON 25/04/1981. EXT.P11: COPY OF THE REQUEST DTD. 3/3/08 SUBMITTED BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER, UNIVERSITY OF CALICUT. EXT.P12: COPY OF THE REQUEST MADE UNDER RIGHT TO INFORMATION ACT DTD. 3/3/08 SUBMITTED BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT. EXT.P13: COPY OF THE REPLY NO.PR/RT/2006 DTD. 3/04/08 FROM THE PUBLIC INFORMATION OFFICER, OF THE 1ST RESPONDENT TO THE PETITIONER. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.4300/2008 ----------------------------------------------------------- Dated this the 3rd day of November, 2008 JUDGMENT Challenge in this writ petition is against the appointment of the 3rd respondent as Assistant Curator in the Zoology Department of the Ist respondent University and the petitioner seeks a declaration that the selection and appointment of the 3rd respondent is illegal and violative of the provisions of the Calicut Universities Act and the Statutes. A direction to the first respondent to conduct interview afresh and to finalize the select list in accordance with the provisions of the governing statute is also sought for. 2. Briefly stated, the facts of the case are that, by Ext.P1 notification issued by the first respondent University, inviting applications to fill up one vacancy of Assistant WP(c).No.4300/2008 2 Curator in the Zoology Department. Qualifications for the post also have been indicated in Ext.P1. In response to Ext.P1, petitioner, 3rd respondent and several other candidates submitted their applications. By Ext.P2, among others, petitioner was also called for a written test. It is stated that along with others, the petitioner appeared and succeeded in the written test which was conducted on 15.12.2005. 3. Though interview was scheduled to be held on 11.1.2006, the same was postponed on the ground that certain writ petitions were pending before this court. Subsequently, the petitioner filed WP(c).No.15795/07 complaining of delay in finalizing the selection process and that writ petition was disposed of by Ext.P4 judgment, clarifying that it will be open to the University to proceed with the selection process and complete the same in accordance with law. Accordingly, interview was scheduled and Ext.P5 is the memo calling the petitioner to appear for the interview. It is stated that 15 candidates were WP(c).No.4300/2008 3 interviewed and in the ranking done by the University, the 3rd respondent was No.1, one Anitha P.V was rank No.2 and the petitioner was rank No.3. The 3rd respondent was appointed and it was there upon that this writ petition was filed. 4. The petitioner submits that the method of selection is as per Ext.P10, the extract of the minutes of the syndicate meeting held on 25.4.1981 and that in terms thereof, 75 marks are set apart for practical test and 25 marks for interview. He has also a contention that in terms of Statute 8 of Chapter 4 Part II of the Calicut University Statute, though the quorum of the Selection Committee is 3, only 2 were present. In the writ petition, several other contentions have been raised seeking to invalidate the selection of the 3rd respondent, a detailed reference to those may not be necessary, in the nature of the judgment that I propose to pass. 5. A counter affidavit has been filed by the University. Paragraphs 6, 7 and 12 to the extent it is relevant are WP(c).No.4300/2008 4 extracted below for reference. "6.The University decided to finalize the selection by conducting a written test and interview by giving equal importance. The experience and academic credential of the candidates are also to be given due consideration being a post in the Teaching and Research Department. The written test was conducted for total marks of 75. The marks for the finalizing of the rank list was fixed at 150.75 marks from written test and remaining marks for academic credential experience and interview. A definite criteria was adopted for the distributing of 75 marks, which are set apart for the qualification, experience and interview. The criteria being Degree Ist class 5, Rank 5, experience 2 for each year (maximum 10), PG Degree 5, Ph.D 10, Interview 40. 7. It is submitted that such definite formulae are formulated to see that best and suitable candidates are selected. The objective criteria is followed to avoid any room for any complaint or grievance of subjectivity in the process of selection. The selection was conducted in a most fair manner assessing the candidates WP(c).No.4300/2008 5 objectively. The averment otherwise is absolutely incorrect. 12. ............The petitioner proceeds with the presumption that the selection was finalized by reckoning 75 marks for written test and 25 marks for oral test which he submitted is not correct. It is submitted that the selection was finalized giving equal importance to the written test for which 75 marks are set apart and also to other relevant criteria for which 75 marks are set apart and the Rank list was finalized based on the total mark obtained by the candidates for both the written test and Interview, marks which were awarded on definite criteria and the total marks for the selection was 150 and not 100 as argued by the petitioner." 6. In paragraph 14 of the counter affidavit, the University has given a chart and the details of the criteria adopted and the marks awarded to the 12 candidates who were interviewed by the Selection committee has been given. In so far as the contention of the petitioner on the want of quorum for the selection committee is concerned, it WP(c).No.4300/2008 6 is stated that the Vice Chancellor, Dr. K.P. Janardhanan and Dr.K.P. Varkey, Member, Syndicate have participated in the Selection Committee. 7. Petitioner has filed a reply affidavit, in which he has explained as to why the marks assigned by the University is illegal. He has also reiterated his contentions about the want of quorum for the Selection Committee. The 3rd respondent has filed a counter affidavit justifying the selection. 8. As already noticed, mainly two contentions are urged by the counsel for the petitioner. One is regarding the quorum of the Selection Committee. According to the petitioner, Statute 8 of Chapter 4 Part-II of the Calicut University Statute prescribes that the Selection Committee should have at least 3 members to have a quorum. It is stated that only two persons participated in the Selection Committee and that the statement that Dr. K.P. Varkey was present is not correct. The University has produced the minutes of the meeting of the Selection Committee. From WP(c).No.4300/2008 7 that it is obvious that the Vice Chancellor, Dr. K.P.Janardhanan and Dr. K.P.Varkey have participated in the Selection Committee. Now that the records have been produced before me, I have no reason to doubt the genuineness of the same. If that be so, I cannot accept the averment of the petitioner that the selection Committee did not have quorum as provided in Statute 8 Chapter 4 Part II of the Calicut University Statute. Therefore that contention stands rejected. 9. The second contention of the counsel for the petitioner is that, going by Ext.P10 minutes of the Syndicate selection comprises of written test and interview and that the marks assigned are 75 and 25 respectively. According to the learned counsel for the petitioner, the Selection Committee has, on its own, resolved to enhance the mark from 25 to 75 and that the 75 mark has been assigned to various factors as determined by the Selection Committee itself. This contention of the petitioner is fully supported by the counter affidavit filed by the University. The University WP(c).No.4300/2008 8 has stated in paragraph 6 of its counter affidavit that the marks were fixed at 150, out of which 75 marks has been ear-marked for written test and balance for other factors. It is stated that, 5 marks have been set apart for rank in degree, 5 for first class in degree, 10 for experience, 5 for Post Graduate Degree and 10 for PHD and 40 for interview. It is stated that in that process of assessment, the 3rd respondent secured 56 marks and the petitioner secured only 20 marks. Finally, the 3rd respondent who got 38 marks out of 75 for written test secured a total of 94 marks and was rank No.1 and the petitioner, who got 72 marks in the written test, secured a total of 92 marks and hence was relegated to the 3rd position. 10. The answer of the University justifying the Selection Committee's decision of increasing marks from 25 to 75, is by placing reliance on Statute 8 of Chapter 4 Part- II of the Calicut University Statutes, which reads as under. "Recruitment to posts shall be made on the basis of the recommendation made by the Selection Board consisting of the WP(c).No.4300/2008 9 vice Chancellor or Pro-Vice Chancellor as Chairman, Convenor and the Standing Committee and the Syndicate of staff, and Convenor of the Standing Committee and the Syndicate on Finance and 2 other members of the Syndicate nominated by the Vice Chancellor from time to time. The Registrar shall be the Secretary to the Board. Quorum in the meeting of the Selection Board shall be 3 including the Chairman. The Board may conduct such tests as are deemed necessary to determine the suitability of candidates for appointment. It may also fixed the rates of fee for admission to the tests. In making appointments by direct recruitment to the posts of non- teaching staff in the University, the University shall observe the provisions of clauses (a)(b) and (c) of Rule 14 and Rules 15, 16 and 17 of the Kerala State and Subordinate Service Rules 1958 as amended from time to time. Provided that it shall be competent for the Vice Chancellor to make recruitment to posts the maximum of which does not exceed 600 with or without the aid or advice of the Committee, in case he is of opinion that appointments should be made immediately". (emphasis supplied) 11. Counsel for the University and the 3rd respondent lays considerable emphasis on that part of the Statute which WP(c).No.4300/2008 10 authorizes the Board to conduct such tests as are deemed necessary to determine the suitability of candidates for appointment. According to them, exercising the aforesaid power, the Board is entitled to increase the total marks and prescribe the norms of selection. In my view, the Board is not entitled to do so. By this statute the Board is authorised to conduct such tests as are deemed necessary to determine the suitability of the candidates and on such enhancement of suitability must be in terms of the norms laid down by the appointing authority. This provision does not in any manner authorize Selection Board to lay down the norms as canvassed by the counsel for the University and the 3rd respondent. 12. The position that, the power of the Selection Committee is confined to what is laid down in that behalf by the Appointing Authority, settled by this court in the judgment reported in Krishnadas V. Sree Sankaracharya University of Sanskrit (2005(3)KLT 908). In that judgment, the learned single Judge of this court, WP(c).No.4300/2008 11 following the Apex Court judgment in Ramachandra Iyer & Ors. V. Union of India & Ors.(1984(2)SCR 200), held that the law on the subject is clear to the effect that unless authorised by the Rules, the Selection Committee has no jurisdiction or authority to lay down norms for selection. In this case apart from the sentence that is referred to in statute 8 of Chapter 4 Part-II of the Calicut University Statute, there is nothing else for the Selection Committee to rely on to justify what it has done. In my view, the Selection Committee is totally devoid of power to lay down the norms which it has done. 13. As already noticed, the consequences of what has been done by the Selection Committee is that a person who got 72 marks out of 75 in the written test has been relegated to the 3rd position and the person who got 38 marks out of 75 marks in the written test has been brought forward to the first position. Almost a similar case has been dealt with by the Division Bench of this court in Deepthi Vijayakumar V. Joint Registrar of Co- WP(c).No.4300/2008 12 operative Societies and Ors.( 2008(4) KLT 321) where following the Apex Court judgment in Krishnan Yadav & another V. State of Haryana & Ors.(AIR 1994 Sc 2166) this court has set aside the entire selection process and selection has been ordered to be redone. 14. In this case, I should also refer to the contention raised by the respondents that, the invalidity of the selection process on the ground that the Selection Committee had exceeded its jurisdiction has not been pleaded in the writ petition. First of all, this is a fact which is disclosed from the counter affidavit filed by the respondent University itself and therefore I have rendered the judgment wholly relying on the counter affidavit of the University and after hearing counsel elaborately on this aspect. Further, in the Division Bench judgment referred to above, a contention that the violation of Section 80B of the Co-operative Societies Act was not pleaded has been rejected by stating that when the selection is made against the provisions of the Statute and that has come to the WP(c).No.4300/2008 13 notice of the court from the files, court cannot keep silent on the issue. In the facts of the case, I am inclined to adopt the same course which has been held by the Division Bench. Want of pleading now urged by the University and the counsel for the 3rd respondent has not caused any prejudice to them and this contention is only to be rejected. 15. Further, it was argued that 2nd rank holder, Smt. Anitha P.V. has not been impleaded and therefore ranking made should not be interfered. I cannot accept this plea either. Rank No.1, the 3rd respondent has been appointed and has joined the post. Therefore, if the writ petition is allowed and a fresh selection is ordered, that will only to the benefit of the 2nd rank holder, since her candidature also will have to be considered. 16. Accordingly, the selection and appointment of the 3rd respondent will stand set aside. The selection Committee shall conduct interview of the candidates in the manner as laid down in the Rules framed by the University, prepare a fresh ranked list and make appointments. This WP(c).No.4300/2008 14 shall be done as expeditiously as possible and at any rate within 3 months from the date of production of a copy of the judgment. In the meantime the 3rd respondent will be permitted to discharge the duties of the post to which he is already appointed and will be paid for the service rendered by him. Writ Petition is allowed as above. No costs. ANTONY DOMINIC JUDGE vi. WP(c).No.4300/2008 15