IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 WA.No. 400 of 2005() -------------------- AGAINST THE JUDGEMENT IN WPC.12723/2004 Dated 09/11/2004 .................... APPELLANT(S): PETITIONERS IN WPC ------------------------------- 1. DR.B.VIJAYACHANDRAN PILLAI, SOUPARNIKA, CKRA 229, T.C.9/1608, KARIYAM ROAD, SREEKARIYAM, THIRUVANANTHAPURAM (READER, POST GRADUATE DEPARTMENT OF COMMERCE IN VTM NSS COLLEGE, DHANUVACHAPURAM, THIRUVANANTHAPURAM. 2. DR.RAJU G., KANNAMKULATH THEKKATHIL, AMPALAKARA, UMMANNUOOR P.O., KOTTARAKKARA, KOLLAM-691 547(LECTURER IN COMMERCE, GOVERNMENT COLLEGE,NEDUMANGAD, THIRUVANANTHAPURAM. BY ADV. SRI.P.RAMAKRISHNAN SRI.C.ANIL KUMAR RESPONDENT(S): RESPONDENTS WPC ----------------------------- 1. UNIVERSITY OF CALICUT, REP. BY ITS REGISTRAR, CALICUT UNIVERSITY P.O.-673 635. 2. SELECTION COMMITTEE, REP. BY VICE CHANCELLOR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., -673 635. 3. SANTHOSH P.THAMPI, LECTURER IN B.B.A., UNIVERSITY INSTITUTE OF TECHNOLOGY, NEYYATTINKARA, THIRUVANANTHAPURAM. ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R3 SRI.K.VINODKUMAR FOR R3 SRI.P.C.SASIDHARAN, SC, CALICUT UTY FOR R1 & R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/05/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ----------------------------------------- W.A. NO.400 OF 2005 ----------------------------------------- Dated 28th May, 2009. JUDGMENT Balakrishnan Nair, J. The appellants were the petitioners in W.P.(C) No.12723/2004. The respondents herein were the respondents in that case. The Writ Petition was filed, challenging the selection and appointment of the 3rd respondent to the post of Reader in the Department of Commerce and Management Studies under the 1st respondent University. 2. The brief facts of the case are the following: The University invited applications for appointment to various posts as per Ext.P1 notification published on 1.9.2003. Reader in Commerce and Management Studies was one of the posts notified under Ext.P1. The qualifications prescribed for the post of Reader were: “(i) A good academic record with a doctoral degree or equivalent published work in the concerned subject of this University or an equivalent degree from an Indian/Foreign University recognized as equivalent thereto with a doctoral degree or equivalent published work. In addition to these, WA NO.400/2005 2 candidates who join from outside the University system shall also possess at least 55% of the marks or an equivalent grade of B in 7 point Scale with latter grades O, A, B,C, D, E and F at Master's degree level. (ii) Five years of teaching and/or research excluding the period spent for obtaining the research degree and has made some mark in the areas of scholarship as evidenced by quality of publications, contribution to educational innovation, design of new courses and curricula.” The appellants were candidates who applied for the post. They, along with other candidates, were called for an interview on 25.2.2004. In the selection, the 3rd respondent was rank No.1 and he was appointed by order dated 19.11.2004. Feeling aggrieved by the selection and appointment of the 3rd respondent, the Writ Petition was filed. The appellants/writ petitioners submitted that the constitution of the selection committee, which interviewed them and other candidates, was not in accordance with the relevant Statute. The 3rd respondent was aged only 32 and the minimum age limit prescribed for the post was 35. In the notification, it was stipulated that age relaxation both upper and lower will be granted to deserving internal candidates. There was no such stipulation concerning age relaxation for open market candidates. Though, the 3rd respondent was a candidate from the open market, he was also granted age relaxation. He did not have the five years' teaching experience, notified as per Ext.P1. The appellants also WA NO.400/2005 3 submitted that marks at the interview were not awarded, as provided in Ext.P4 order of the University dated 11.11.1997, governing the same. 3. The University and the 3rd respondent filed separate counter affidavits, supporting the selection. The learned Single Judge, who heard the Writ Petition, dismissed the same. Hence this Writ Appeal. 4. We heard the learned counsel on both sides. The learned counsel for the appellants submitted that the selection committee should have been constituted as per Statute 4 of Chapter III of the Calicut University First Statutes. For the post of Reader, the committee should consist of the Vice Chancellor, Head of the Department, one member of the Syndicate nominated by the Vice Chancellor and two experts in the subject in which appointment is to be made. In this case, apart from the Vice Chancellor, Dr.A.K.Sarada was a member of the committee as Head of the Department. Sri.Balakrishna Kidavu was a member of the committee as the Syndicate member nominated by the Vice Chancellor. Two experts in the subject, namely, Dr.Surya Rao and Professor Manikkom were also nominated to the committee. But, on the date fixed for the interview to the post of Reader, Dr.Surya Rao left, owing to person inconvenience. So, the interview was held without the participation of the said subject expert. As the constitution of the interview Board was defective, the selection of the 3rd respondent by WA NO.400/2005 4 the said committee is illegal, it is submitted. Secondly, it is submitted that when Ext.P1 specifically says that age relaxation will be given only to internal candidates, the grant of age relaxation to the 3rd respondent is illegal and unauthorised. Next, it is submitted that the 3rd respondent admittedly got his Ph.D Degree only in 2003. Ph.D is the basic qualification for appointment to the post of Reader. Thereafter, he did not have any research or teaching experience. The teaching experience relied on by him is the experience gained between 1996 and 2003, as a Lecturer appointed on contract basis in one of the institutions of the Kerala University. At that time he was only a Post-graduate in Business Administration. So, the qualification of teaching acquired at that time was wrongly reckoned as qualification for the post. Finally, it is submitted that going by the marks awarded, the same was not awarded as provided under Ext.P4. 5. The learned senior for the 3rd respondent Sri.N.Nandakumara Menon submitted that the minor irregularity in the constitution of the committee is of no consequence and the same will not affect the validity of the selection. According to the learned senior counsel, the University is empowered to grant age relaxation in all cases, in view of Ext.R1(a) decision of the Syndicate dated 16.2.1985. Regarding teaching experience, the learned senior counsel submitted that there is nothing in the notification, WA NO.400/2005 5 which would indicate that the five years' teaching experience should be one acquired after the acquisition of the Ph.D qualification, though, in the case of research experience, there is an express provision to that effect. The words not present in the notification cannot be added to it, to hold that the 3rd respondent is disqualified. The learned senior counsel also submitted that the award of marks is in accordance with the norms governing the same. 6. Though the University supported the selection at the original side, in this Writ Appeal the learned standing counsel submitted that the 3rd respondent was not having the requisite teaching experience for the post. According to him, there were several irregularities in the selection and appointment. 7. We considered the rival submissions made at the Bar and also perused the documents and materials on record. From the facts disclosed, we feel that the appellants are entitled to succeed on two points: (1) The illegal age relaxation granted to the 3rd respondent. (2) The illegal reckoning of teaching experience of the 3rd respondent, which he acquired before he acquired the basic qualification of Ph.D. Ext.P1 specifically says that: “However, relaxation in age limit (both upper and lower WA NO.400/2005 6 age) will be granted in the case of internal candidates otherwise deserving including those who are working in the University projects and drawing salary from the University Fund, as per the resolution of the Syndicate dated 15.2.1985.” The above stipulation was made after prescribing the age limit for the post of Reader as between 35 and 45 years. From the above, it is clear that no open market candidate is entitled to get age relaxation. So, the 3rd respondent was disqualified to participate in the selection process, as he did not have the prescribed age limit. The contention made relying on Ext.R1 (a) resolution of the Syndicate Meeting dated 16.2.1985, which provided for grant of relaxation of lower age limit in all cases, in the matter of recruitment cannot be accepted. Even assuming the said resolution is even now holding the field, it contains only an enabling provision. The relevant portion of the said resolution reads as follows: “1) Resolved to accept the following guidelines suggested by the Committee for screening of applications:- (i) Relaxation may be given in age limit (both upper and lower age) in the case of internal candidates including those who are working in the University projects and drawing salary from the University Fund. (ii) Lower age limit may be relaxed in all cases.” Even though the above provision enables the University to grant age relaxation to open market candidates also, when Ext.P1 notification was WA NO.400/2005 7 issued, the said clause was not incorporated. In other words, it can be assumed that there was a conscious decision to grant relaxation only to internal candidates, which found a place in Ext.P1 notification. So, in the absence of any stipulation in Ext.P1 regarding relaxation of lower age limit for outside candidates, the same cannot be granted during the process of selection. 8. The stipulation in Ext.P1 regarding teaching experience is as follows: “Five years of teaching and/or research excluding the period spent for obtaining the research degree and has made some mark in the areas of scholarship as evidenced by quality of publications, contribution to educational innovation, design of new courses and curricula.” Ph.D degree is an essential qualification for the post of Reader. The 3rd respondent was awarded Ph.D degree only on 23.9.2003. The last date for receipt of applications was 15.10.2003. That means, after the acquisition of the basic qualification of Ph.D., the 3rd respondent did not have any teaching or research experience. The teaching experience, even assuming the experience as a contract employee could be counted, should be the one acquired before he got the Ph.D degree. Therefore, he did not have the essential qualification of five years' teaching experience. In view of the above two basic disqualifications suffered by the 3rd respondent, his WA NO.400/2005 8 selection and appointment are bad. Accordingly, the judgment of the learned Single Judge is reversed and the Writ Appeal is allowed. The selection and appointment of the 3rd respondent to the post of Reader in the Department of Commerce and Management Studies under the 1st respondent University is quashed. The University shall make fresh selection in accordance with law from among the candidates who applied for the aforementioned post, pursuant to Ext.P1 notification within two months from the date of receipt/production of a copy of this judgment. K.BALAKRISHNAN NAIR, JUDGE. C.T.RAVIKUMAR, JUDGE. nm/