Central University of Kerala & Ors. v. Dr. Mohammed Aslam M.A.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **MONDAY, THE 18TH DAY OF NOVEMBER 2019 / 27TH KARTHIKA, 1941** **WA.No.2132 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 29993/2017(Y) OF HIGH COURT OF KERALA DATED 8/8/2019** ## **APPELLANTS/RESPONDENTS IN WP(C):** - **1 THE CENTRAL UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, TEJASWINI HILLS, PERIYE P.O, KASARAGOD, PIN-671 316,** **2 THE EXECUTIVE COUNCIL, CENTRAL UNIVERSITY OF KERALA, PERIYE P.O, KASARAGOD-671 316, REPRESENTED BY ITS CHAIRMAN/ VICE CHANCELLOR.** - **3 THE CHAIRMAN** **SELECTION COMMITTEE CONSTITUTED FOR THE POST OF PROFESSOR IN ENVIRONMENTAL SCIENCE, CENTRAL UNIVERSITY OF KERALA, PERIYE P.O, KASARAGOD-671316** **BY ADV. SRI.V.SAJITH KUMAR, SC, CENTRAL UNIVERSITY OF KERALA** ## **RESPONDENT/PETITIONER IN WP(C):** **DR.MOHAMMED ASLAM M.A. ASSOCIATE PROFESSOR, SREYAS, KMC VIII/306, ANANGOOR, VIDYA NAGAR P.O, KASARAGOD, KERALA, PIN-671123** **BY ADV.SRI.P.K.IBRAHAM** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 1.11.2019, THE COURT ON 18.11.2019 DELIVERED THE FOLLOWING:** WA No.2132/2019 ## -:2:- ## **J U D G M E N T** Dated this the 18[th] day of November 2019 ## _**Shaffique, J.**_ This appeal is filed by the respondents in WP(C) No. 29993/2017. By judgment dated 8/2/2019 at the instance of the respondent herein, learned Single Judge directed the University to take steps to publish the select list for the post of Professor in Geology, pursuant to Ext.P1 notification. 2. The short facts of the case are as under and the parties are described as shown in the writ petition unless otherwise stated:- By Ext.P1 dated 4/12/2015, the University invited applications for various posts including the post of Professor in Geology. Petitioner was one among the candidates. After the selection process, though the petitioner had faired very well in all the assessment criteria, the Selection Committee did not recommend any of the candidates. According to the petitioner, there were three candidates in the select list and the Committee WA No.2132/2019 -:3:- did not recommend any of them. Petitioner is the person who obtained more marks in the performance criteria adopted by the UGC and therefore, according to him, the University ought to have appointed the petitioner. Petitioner therefore sought for quashing Exts.P8 and P9 by which it was found that none of the candidates were found eligible and also for a declaration that the petitioner should be appointed to the post of Professor in Geology. Petitioner also alleged that he was not recommended to the aforesaid post on account of _malafides_ and other extraneous considerations. 3. Counter affidavit had been filed by the respondents _inter ali_ a stating that University had followed the UGC guidelines and norms approved by the Academic Council in strict terms. It is further stated that the Selection Committee/Interview Board found that all the candidates were below average and the Selection Committee unanimously resolved not to recommend any of the candidates. The Executive Council which is the Appointing Authority also affirmed the decision of the Selection Committee. They contended that there is no _malafides_ in the Selection Committee rejecting the application of any of the WA No.2132/2019 ## -:4:- candidates. It is stated that an unanimous decision was taken following a fair procedure, which is not liable to be interfered with. They deny the fact that petitioner was ranked first. According to them, the rank has to be entered in the column for remarks as done in other selection proceedings. 4. Learned Single Judge after considering the respective contentions observed that in so far as the Committee had not fixed any minimum marks for interview or for the pedagogical skills, held at para 13 as under:- _“13. The respondents do not have a case that whether it had fixed any minimum marks for interview or for the pedagogical skill test or that it had empowered the selection committee to fix the minimum marks for interview or skill test. No material is produced towards the same. In the absence of a decision by the University and in the absence of any such authorisation to the selection committee to take a decision as to the ineligibility of the candidates merely on the basis of performance in interview and skill test the action of the respondents in not drawing a rank list cannot be correct, proper or legal, as it is not provided in the Regulations. UGC Regulations do not prescribe any minimum marks for interview or skill test, though percentage of marks are earmarked under different heads”._ 5. It is further found that in so far as the University has WA No.2132/2019 ## -:5:- not published any criteria for conducting the interview and to assess the intellectual standards prior to the commencement of the selection process, the procedure adopted by the Selection Committee, which is ratified by the University, is illegal. It was found that in so far as Selection Committee had taken decision contrary to UGC regulations, even in the absence of plea of _malafides_ , the Court can interfere with the selection process. 6. Learned counsel for the appellant/University after referring to Ext.R1(a) would submit that, for all the three candidates, marks were given for different performances as A, B and C. That apart, for teaching skill, 5 was the maximum marks and for interview 20 marks. It is submitted that for interview, all the candidates got only 5 out of 20 and the Selection Committee did not recommend any of the candidates. As far as the University is concerned, unless the Selection Committee recommends any of the candidates, it cannot force the Committee to take a different view. Ext.R1(a) is the minutes of the meeting of the Selection Committee wherein they have stated as under:- _“The performance of all the three candidates were_ WA No.2132/2019 ## -:6:- _below average in respect of quality of research, competence of teaching, interview, performance and academic leadership which are most essential for a Professor. Therefore, the Selection Committee unanimously resolved not to recommend any of the three candidates for appointment to the post of Professor in the Department Geology.”_ It is therefore submitted that the University has only followed the decision taken by the Selection Committee and the selection had been conducted in a transparent manner based on the parameters issued by the UGC. When the members of the Selection Committee unanimously resolved that none of the candidates could be recommended, it is not possible for the University to appoint any of the candidates from among the said list. 7. Learned counsel for the appellant placed reliance on the following judgments: (i) _**Anzar Ahmed v. State of Bihar**_ [(1994) 1 SCC 150]. This was a case in which the Apex Court upheld the view of the Selection Committee fixing 50% marks for the interview. - (ii) _**Nelima Misra. v. Harinder Kaur Paintal**_ [(1990) 2 SCC 746]. In this case, the Apex Court held that when WA No.2132/2019 ## -:7:- appointments are made based on the recommendation of experts nominated by Universities, the High Court need only see whether the appointment had contravened any statutory or binding rule or ordinance. The High Court should give due regard to the opinion given by experts. (iii) _**Pramodh v. State of Kerala**_ (2002 (3) KLT 729). In this case, a Division Bench of this Court held that even if selection is based on an interview alone, the same is not _per se_ illegal. 8. On the other hand, learned counsel appearing for the petitioner would submit that malafides is writ large on the face of record itself. Petitioner is fully qualified for the said post and the Selection Committee had without any reason refused to prepare a ranked list. It is pointed out that, in Ext.P7, a summary sheet prepared by the Screening Committee, while considering the research performance of publications, the score obtained towards quality of papers/books at 7.5 is reduced to 4. According to the petitioner, the marks actually due to him is not awarded. Still he became first in the evaluation. According to the petitioner, not selecting the petitioner for the post was vitiated with malice in its WA No.2132/2019 -:8:- legal sense, which aspect would entitle the petitioner to be selected. Reference is also made to the judgment of the Apex Court in _**S.R.Venkataraman v. Union of India**_ [(1979) 2 SCC 491] and _**State of A.P. v. Goverdhanlal Pitti**_ [(2003) 4 SCC 739]. 9. It is settled law and as rightly observed by the learned Single Judge, the scope of interference by this Court in a selection being made by the University through a Selection Committee is very limited. This Court can interfere in such selection process only if there is any illegality involved in the matter or there is any _malafides_ . Apparently, no _malafides_ had been alleged against the Selection Committee. The allegation is that of legal malice by not selecting the petitioner though he has scored the highest marks. Unless it is possible for the petitioner to establish that the action of the University is wrongful and wilful without reasonable or probable cause, which affects total disregard to the rights of others, one cannot attribute legal malice. In the case on hand, the marks given by the Selection Committee as per the norms laid down by UGC would invariably show that all the candidates have minimum marks in category A, B and C. Therefore, WA No.2132/2019 -:9:- performance in their interview was the criteria required to be considered for the purpose of ascertaining whether there is any malice or not. Learned Single Judge did not go into such issues to find out whether there is any malice, but proceeded on the basis that in so far as minimum marks was not specified for the interview, the Selection Committee cannot take a view that none of the candidates were found eligible to be appointed to the said post. As far as the Screening Committee is concerned, they only recommend that the candidate can be called for interview when it is found that the candidate have all the qualifications and the academic background in respect of various criteria as specified by the University on the basis of UGC guidelines. 10. In _**Nelima Misra**_ (supra), the Apex Court held that in matters of appointment in the academic field, the Court will not generally interfere and the Courts will be slow to interfere with the opinion expressed by the experts in the absence of malafide alleged against the experts. The High Court need only see whether the appointment had contravened any statutory or binding rule or ordinance. The High Court should also give due regard to the opinion expressed by the experts constituting the WA No.2132/2019 ## -:10:- Selection Committee and its recommendation on which the Chancellor acted. When this position of law had been well settled and as we do not find any _malafides_ in the action of the Committee, merely for the reason that a person had got more marks in a selection process, does not enable him to get the appointment in so far as the Selection Committee had not recommended him for the post. 11. The learned Single Judge proceeded on the basis that the Selection Committee could not have fixed any minimum marks for interview or teaching skill especially when there is no such decision by the University. In the minutes which has been produced as Ext.R1(a), the Committee has unanimously observed that the performance of all the 3 candidates were below average in respect of quality of research, competence of teaching, interview performance and academic leadership. When such being the finding of the Selection Committee, we do not think that the learned Single Judge was justified in arriving at a conclusion that when cut off marks have not been fixed for the interview or skill test, the recommendation of the Selection Committee is bad in law. Even otherwise, during interview, the WA No.2132/2019 -:11:- candidate ought to have obtained at least 50% of the marks. What we find from Ext.P8, the mark-sheet of the candidates, is that, towards teaching skill, the two candidates including the petitioner got 2 out of 5 and the other candidate 1 out of 5 and for interview, all the candidates got only 5 each, which is only 25% of the total marks. When the Committee decided not to approve them, we do not find any reason to interfere. Learned Single Judge was not justified in interfering with the said decision of the Selection Committee. In the result, we set aside the judgment in WP(C) No.29993/2017 and the writ petition stands dismissed. The appeal is allowed. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** **Sd/-** ## **T.V.ANILKUMAR** Rp True Copy PS to Judge **JUDGE**