Dr. A. Shaji v. University of Kerala and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **WEDNESDAY, THE 3RD DAY OF DECEMBER 2014/12TH AGRAHAYANA, 1936** ## **WP(C).No. 12874 of 2014 (H)** **----------------------------** **PETITIONER(S): --------------------------** **DR.A.SHAJI, AGED 44 YEARS S/O.ANIRUDHAN V., NOW RESIDING AT 202N 'DD DIAMOND DISTRICT', PANGAPARA THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.P.CHANDRASEKHAR SRI.S.PRASANTH SRI.SOORAJ T.ELENJICKAL** **RESPONDENT(S)/RESPONDENTS:-: --------------------------------------------------------** ## **1. UNIVERSITY OF KERALA** **REPRESENTED BY REGISTRAR KERALA UNIVERSITY THIRUVANANTHAPURAM - 695 034.** ## **2. VICE CHANCELLOR,** ## **UNIVERSITY OF KERALA, THIRUVANANTHAPURAM - 695 034.** ## **3. JINIMON P.,** **ASSISTANT PROFESSOR, DEVASWOM BOARD COLLEGE SASTHAMKOTTA - 690 521.** **R3 BY ADV. SRI.P.C.SASIDHARAN** **R1 & 2 BY ADV. SRI.BECHU KURIAN THOMAS, SC, UNIVERSITY OF KERALA R BY SRI.GEORGE POONTHOTTAM,SC,KERALA UTY.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 12874 of 2014 (H)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-------------------------------------** - **EXHIBIT P1. THE TRUE COPY OF THE RANK CERTIFICATE ISSUED BY CONTROLLER OF EXAMINATION UNIVERSITY OF KERALA DATED 01.12.1992.** **EXHIBIT P2. THE TRUE COPY OF THE CERTIFICATE IN ELIGIBILITY FOR LECRURESHIP ISSUED BY UGC DATED 08.02.1996.** **EXHIBIT P3. THE TRUE COPY OF THE CERTIFICATE ISSUED BY THE VICE CHANCELLOR OF KERALA UNIVERSITY GRANTING PHD DATED 25.02.2008.** - **EXHIBIT P4. THE TRUE COPY OF THE ORDER ISSUED BY THE REGISTRAR KERALA UNIVERSITY SANCTIONING THE PETITIONER AS RESEARCH CADE DATED 05.01.2012.** - **EXHIBIT P5. THE TRUE COPY OF THE NOTIFICATION DATED 26.02.2007.** **EXHIBIT P6. THE TRUE COPY OF THE NOTIFICATION ISSUED BY THE 1ST RESPONDENT DATED 17.06.2011.** **EXHIBIT P7. THE TRUE COPY OF THE NOTICE OF INTERVIEW ISSUED BY THE 1ST RESPONDENT DATED 03.05.2014.** **EXHIBIT P8. THE TRUE COPY OF THE NOTICE OF INTERVIEW ISSUED BY THE 1ST RESPONDENT DATED 03.05.2014.** **EXHIBIT P9. THE TRUE COPY OF THE NOTICE OF INTERVIEW ISSUED BY THE 1ST RESPONDENT DATED 03.05.2014.** **EXHIBIT P10. THE TRUE COPY OF THE LIST OF APPROVED JOURNALS IN HISTORY, APPROVED BY THE BOARD OF STUDIES IN HISTORY (PG) UNIVERSITY OF KERALA AS AT MARCH 2009.** - **EXHIBIT P11. THE TRUE COPY OF THE NORMS OF GRANTING INDEX MARKS ISSUED BY THE 1ST RESPONDENT DATED 23.10.2007.** - **EXHIBIT P12. THE TRUE COPY OF ORDER NO.AD.H.5091/11/HISTORY/2014 DATED 17.05.2014 OF THE 1ST RESPONDENT.** **EXHIBIT P13. THE TRUE COPY OF ORDER NO.AD.H/5091/11/IDE (HISTORY)/2014.** **EXHIBIT P14. THE TRUE COPY OF ORDER NO.AD.H/44875/12/HISTORY/2014.** **EXHIBIT P15. THE TRUE COPY OF THE DECISION OF THE SELECTION COMMITTEE DATED 12.05.2014** **...2** **-2-** ## **WP(C).No. 12874 of 2014 (H)** - **EXHIBIT P16. THE TRUE COPY OF THE APPLICATION SUBMITTED BY THE 3RD RESPONDENT FOR THE POST OF LECTURER IN HISTORY IN THE UNIVERSITY DEPARTMENT.** - **EXHIBIT P17. THE TRUE COPY OF THE LETTER DATED 17.06.2014 OF THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT** - **EXHIBIT P18. THE TRUE COPY FO THE TABULATION SHEET.** - **EXHIBIT P19. THE TRUE COPY OF THE ARTICLE APPEARED ABOUT THE JOURNAL APPEARED IN 'HINDU' DAILY** - **EXHIBIT P20. THE TRUE COPY OF THE MINUTES DATED 13.05.2014 OF THE SELECTION COMMITTEE FOR SELECTION OF DR.S. JASEEM FOR THE POST OF PROFESSOR IN HISTORY.** - **EXHIBIT P21 THE TRUE COPY OF THE LIST OF JOURNALS IN HISTORY APPROVED BY BOARD OF STUDIES IN HISTORY (PG) OF THE 1ST RESPONDENT** - **EXHIBIT P22 THE TRUE COPY OF THE LETTER DATED 23.06.2014 OF THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT TO THE PETITIONER** ## **RESPONDENT(S)' EXHIBITS** **---------------------------------------** - **EXHIBIT R3(A) : TRUE COPY OF THE MINUTES DRAWN UP, RECEIVED UNDER THE RIGHT TO INFORMATION ACT** - **EXHIBIT P1(A) : TRUE COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE FOR SELECTION OF LECTURER (EZHAVA) IN THE INSTITUTE OF DISTANCE EDUCATION HELD ON 13.05.2014** - **EXHIBIT R1(B) : TRUE COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE FOR SELECTION OF LECTURER (OPEN) IN THE INSTITUTE OF DISTANCE EDUCATION HELD ON 13.05.2014** **EXHIBIT R1(C)** - **: TRUE COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE FOR SELECTION OF LECTURER (OPEN) IN THE DEPARETMENT OF HISTORY HELD ON 14.05.2014** - **EXHIBIT R1(D) : TRUE COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE HELD ON 16.05.2014** **....3** ## **WP(C).No. 12874 of 2014 (H)** **-3-** **EXHIBIT R1(E) : TRUE COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE HELD ON 16.05.2014, APPROVING EXT.R1(B) EXHIBIT R1(F) : TRUE COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE HELD ON 16.05.2014, APPROVING EXT.R1(C) EXHIBIT R1(G) : TRUE COPY OF THE AWARD OF MARKS FOR THE CANDIDATES WHO PARTICIPATED IN THE INTERVIEW TO THE POST OF LECTURER IN HISTORY IN THE DEPARTMENT OF HISTORY HELD ON 14.05.2014 EXHIBIT R1(H) : TRUE COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE FOR CONSIDERING THE PROMOTION OF DR.JASEEM.** ## **//TRUE COPY//** **P.A. TO JUDGE** **JJJ** ## **DAMA SESHADRI NAIDU, J.** ------------------------------------------ W.P.(C) No. 12874 of 2014 -----------------------------------------Dated this the 3[rd] day of December, 2014 ## **J U D G M E N T** In this Writ Petition, the issue concerns itself with the power of the Syndicate to differ from the recommendation of the selection committee in the matter of appointment in the respondent University. 2. Briefly stated, the petitioner, having all the requisite qualification, apart from being meritorious all through his academic career, applied to the post of Lecturer (History) in the Institute of Distance Education in the 1[st] respondent University, in response to Ext.P5 notification, which was issued on 26.02.2007. After inordinate delay of seven years, the respondent University conducted interview in May, 2014. Eventually, the selection committee, through Ext.R1(a) minutes of the meeting, recommended the name of the petitioner along with two other names for the three **-2-** ## **W.P.(C) No. 12874/2014** posts that have been notified. Despite such recommendation, when no appointment was made, the petitioner filed the present Writ Petition seeking the following reliefs: - “i.Call for the records leading to Exhibit P12 appointment order and quash the same by issuing a writ of certiorari; - ii. To call for the records relating to Exhibit P1 to P11 and to issue a writ of mandamus or any other writ order or direction directing the respondents 1 and 2 to appoint the petitioner as Lecturer (History) in the Department of History pursuant to Exhibit P6 notification or in the alternative as Lecturer in History in the Institute of Distance Education under Ezhava category pursuant to Ext.P5 notice and grant to him all consequential benefits including seniority in service in accordance with law; - iii.To pass such further orders as this Honourable Court may be pleased to pass on the facts and in the circumstances of the case.” 3. Before proceeding further, it is to be made clear ## **W.P.(C) No. 12874/2014** **-3-** that the 3[rd] respondent, having been shortlisted for the appointment to the 4[th] post, which is the subject matter of another notification of the year 2011, faced interview along with the petitioner and others and later got appointed. Though the petitioner initially laid challenge against this appointment as well, while advancing his arguments, the learned counsel for the petitioner has submitted that insofar as the 3[rd] respondent is concerned, the petitioner withdraws all objections against his selection. Accordingly, the Writ Petition may be decided leaving out the issue concerning appointment of the 3[rd] respondent. 4. While the Writ Petition was pending consideration, the petitioner obtained certain information, in response to application filed by him under Right To Information Act, and filed it as Ext.P17. To another query of the petitioner the respondent-University authorities have informed him that the selection could not get through since the Syndicate resolved not to accept the recommendation of the selection **-4-** ## **W.P.(C) No. 12874/2014** committee. Indeed, the respondent University too filed Ext.R1(d) Syndicate proceedings, which contain the minutes of the meeting of the Syndicate dated 16.05.2014. 5. With the above factual backdrop, the learned counsel for the petitioner has submitted that the petitioner, having been subjected to due process of selection, ought to have been appointed to the post notified, given the fact that he possess all the qualifications and has been, in fact, selected by the Selection Committee which comprised eminent academicians. He has further submitted that in terms of Statute 4 of the Kerala University First Statutes, 1977, the Syndicate does not have any other option than accepting the recommendations of the Selection Committee. In that regard the learned counsel has placed reliance on **Sobha B. Nair v. University of Kerala – ILR 2004(2) Kerala 371** . 6. _Per contra_ , the learned Standing Counsel for the **-5-** ## **W.P.(C) No. 12874/2014** respondent University has submitted that the University has essentially decided not to proceed with the appointment of the petitioner and others to the post notified through Ext.P5, especially based on the recommendation of the Syndicate as could be seen from Ext.R1(d). According to him, since no challenge has been laid against Ext.R1(d) proceedings by the petitioner, no relief can be granted on that count. In other words, in the absence of any challenge to Ext.R1(d), the very Writ is not maintainable. 7. The learned Standing Counsel has raised strenuous objections about granting any relief to the petitioner in the absence of any specific challenge to Ext.R1 (d), minutes of the meeting of the Syndicate held on 16.05.2014. 8. The learned Standing Counsel has submitted that the provisions of K.S.&S.S.R. apply to the respondentUniversity and in terms of Rule 3(B), mere selection or short listing of a name does not give any indefeasible right to a ## **W.P.(C) No. 12874/2014** **-6-** candidate to insist on his appointment. According to the learned Standing Counsel, this principle has been well settled through numerous judicial pronouncements. Referring to **Sobha B. Nair v. University of Kerala – ILR 2004(2) Kerala 371** , the learned Standing Counsel contends that the factual scenario of the said decision is entirely different from the present one. In elaboration of his submissions, the learned Standing Counsel has submitted that in that case the appointment of the petitioner therein was sought to be interdicted by the Syndicate of the University on the ground that long ago the petitioner’s father was a Professor working in the University and that could have paid with the selection committee in short listing the name of the petitioner therein. Expatiating on his submissions, the learned Standing Counsel would submit that in that instance there was only a partial interdiction of the appointment, singling out one particular person, whereas in the present instance, the entire selection process **-7-** ## **W.P.(C) No. 12874/2014** has been set aside, and as such, the petitioner cannot be heard saying that he has been discriminated against. 9. The learned Standing Counsel has also drawn my attention to Statute 4(4) to contend that it is entirely fallacious on the part of the petitioner to submit that the Syndicate has to mechanically accept the recommendation of the selection committee. According to him, in terms of the Statute referred to above, it can take a different stand and it only requires providing sufficient reasons thereof. 10. Summing up his submissions, the learned Standing Counsel has submitted that between 2007, when Ext.P5 notification was issued and 2014, when the interview took place, many other candidates acquired eligibility and any belated appointments based on a stale notification will defeat the rights of those persons who acquired qualification subsequently to public employment. According to the learned Standing Counsel, a duty is cast on the employer to protect the interest of all the eligible candidates who are the ## **W.P.(C) No. 12874/2014** **-8-** suitable for public employment. Accordingly, he has urged this Court to dismiss the Writ Petition. 11. As has been prefatorily stated, the issue required to be determined in the present Writ Petition is the power of the Syndicate to negate the recommendation of the Selection Committee, more particularly on the ground that notification was issued long back, that in the interregnum many other aspiring candidates have acquired qualifications, and that any belated recruitment would defeat their rights. 12. We may take up the first objection of the learned Standing for the respondent University that in the absence of any challenge to Ext.R1(d), the writ petition is not maintainable. It can be seen that Ext.R1(d) is in the nature of internal communication. There is no gain saying the fact that the petitioner in the Writ Petition alluded to a likely cause of projection saying that the Syndicate seems to have taken a decision interdicting the selection process. ## **W.P.(C) No. 12874/2014** **-9-** Chronologically examined, the Writ Petition was filed on 21.05.2014, whereas Ext.R1(d) proceedings were issued on 16.05.2014. 13. It is not the case of the respondent University that those proceedings have been communicated to the petitioner. Subsequent to filing of the Writ Petition, in response to the queries raised by the petitioner, taking recourse to R.T.I., the respondent supplied information on 17.06.2014 through Ext.P17. Thus, the information in concrete terms, concerning the decision taken by the Syndicate, came to the knowledge of the petitioner only after filing of the Writ Petition. 14. It is trite to state that under Article 226 of the Constitution of India, while exercising the powers of judicial review, _ex debito justitiae_ equity jurisprudence, this Court is not unduly bogged down by procedural parameters, inasmuch as, as a measure of equity jurisprudence, the primary concern of the Court is to render justice. In any ## **W.P.(C) No. 12874/2014** **-10-** event, Ext.P17 information has come to light _lis pendence_ . It is further axiomatic to observe that this Court, while deciding the Writ Petition can, as well, take all subsequent developments into account and render a comprehensive judgment. Accordingly, I do not see lack of challenge to Ext.R1(d) as being fatal, either to the maintainability of the Writ Petition or for this Court to render a judgment based on admitted facts on either sides. 15. As has been rightly contended by the learned counsel for the petitioner, the delay has not occurred on account of the applicants. If at all there is any delayindeed there is delay- it can be attributed only to the respondent authorities. Thus having been the cause for the delay, the respondents, it is elementary to observe, cannot take advantage of their own omissions or shortcomings and don the role of good Samaritans to say that they have abandoned the selection process to serve the cause of the invisible individuals who may have acquired ## **W.P.(C) No. 12874/2014** **-11-** qualifications in the interregnum. If the said preposition is taken to its logical end, any further notification at this juncture by the respondent University may, as well, take a few more years before it could be concluded. By then, a few more persons would have acquired qualifications. That way the selections could be postponed in perpetuity, leading to ludicrous results. Thus, the defence put forward by the University that the selection process had to be abandoned to protect the interest of the candidates who acquired qualifications after the issuing of notification, is only stated to be rejected. 16. Now, we may refer to the statutory sanction under Rule 3(B) of K.S.&S.S.R., that the inclusion of a candidate’s name in any list of approved candidates, for any service, or any class or category of service, shall not confer on him any claim to appointment of service from a class or category. It is too well established to be caviled about. Accepting that, this Court is inclined to observe that having power is one **-12-** ## **W.P.(C) No. 12874/2014** thing and having justifiable circumstances to exercise the said power is another. Indisputably, Rule 3(B) of KS&SSR can be pressed into service by the employer, provided there are any justifiable reasons in that regard. For the reasons stated above, I am afraid, the explanation proffered by the Syndicate is shallow and _ipso facto_ any recourse to Rule 3 (B) of K.S.&S.S.R., cannot be sustained. 17. In my considered view, the issue raised in the present Writ Petition stands squarely covered by the judgment rendered by this Court in **Sobha B. Nair v. University of Kerala – ILR 2004(2) Kerala 371** . Before referring to the ratio of the said judgment, it is appropriate to address the objection of the learned Standing Counsel for the respondent University concerning what is said to be the difference in factual matrix between **Shoba B. Nair’** s case (supra) and the present case. In both cases the recommendation of the selection committee is sought to be set aside by the Syndicate. In both the cases the tenability ## **W.P.(C) No. 12874/2014** **-13-** of the reasons offered by the Syndicate have fallen for consideration. In that context, the learned Single Judge of this Court has made a specific reference to Statue 4 as well as to the principle of a selectee having an indefeasible right to be appointed and eventually concluded that once the selection is held to be valid and proper, the Syndicate could not nullify the said selection. Indeed, it has been observed that the Syndicate is expected to accept and endorse the selection made by the statutory committee. 18. In **Shoba B. Nair** ’s case, the Court examined the action of the Syndicate with reference to Statute 4. The observations of his Lordship Mr. Justice M. Ramachandran, bear reproduction and they are as follows: “12. R.4 refers to the requirement for constituting a Selection Committee. When posts are to be filled up, after inviting applications, they are first to be screened by a Committee. The applications which are found in order are to be referred to a Selection Committee. The Committee is to consist of the Vice Chancellor, (who is the ex officio Chairman of the Committee), one Syndicate member to be **-14-** ## **W.P.(C) No. 12874/2014** nominated by the Vice Chancellor, two outside experts chosen by the Syndicate and the Head of the concerned Department. R.4(3) provides that the recommendations of the Selection Committee shall be placed before the Syndicate which shall make the appointments. Sri.Kelu Nambiar, Senior Counsel, on instructions, asserts that every one of the preconditions for a valid selection had been complied with, and therefore the Syndicate was in error in not accepting the recommendation…” ## 19. Further, dealing with the scope of interference by the Syndicate, this Court has held as follows: “15. [T]he manner in which the provisions had been incorporated in the Statute do indicate that once the selection is made by the Committee, the Syndicate has to take follow up steps for appointing the persons concerned and has no residuary or other powers to reject the recommendation. If that was the position, the Statute would have made explicit provision for them. The reasons given by Justice Smt. Usha (as she then was) about the absence of expertise of the Syndicate in the matter of selection in the decision cited supra, is very much relevant here to be noticed. I hold that the selection was held validly and properly, and the Syndicate could not have nullified the steps. They were expected to accept and **-15-** ## **W.P.(C) No. 12874/2014** endorse the selection made by the statutory Committee.” 20. On the issue of absence of any indefeasible rights in favour of a selectee, having referred to handful judicial pronouncements of the Hon’ble Supreme Court and this Court, the learned Single Judge has held thus: “16. [O]f course, principle as above is settled, but we are also to take notice of the statutory provision which governs the issue. Senior Counsel points out that under Statute 4 (3) Chap.3, the recommendation of the Selection Committee is mandatorily to be placed before the Syndicate and Syndicate is to make appointment. There is no scope for deliberation or interpolation of opinions. A discretion also has not been conferred on them, according to the counsel, for very relevant reasons.” 21. In the light of the definitive pronouncement of this Court in **Shoba B. Nair** (supra) and for the reasons mentioned above, this Court is of the considered opinion that Ext.R1(d) cannot be sustained and is accordingly set aside. Consequently, the respondent University is directed ## **W.P.(C) No. 12874/2014** **-16-** to complete the process of recruitment and appoint the petitioner to the post he has been selected, subject to all other statutory parameters. This Writ Petition accordingly stands allowed. No order to costs. Authoritative Sd/DAMA SESHADRI NAIDU, JUDGE jjj