Dr. Alka Abbas M.A. v. Mahatma Gandhi University & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940** **----------------** ## **PETITIONER** **----------------** **DR.ALKA ABBAS M. A., W/O. P.A.SHANAVAS, PALLATH HOUSE, PALLATH FERRY ROAD, NORTH KALAMASSERRY, ERNAKULAM - 683 104.** **BY ADV.SRI.KALEESWARAM RAJ** **RESPONDENTS:** - **------------------** **1. MAHATMA GANDHI UNIVERSITY** - **REPRESENTED BY REGISTRAR, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM - 686 560.** **2. THE REGISTRAR** - **MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM - 686 560.** **3. THE MANAGER** - **ST.JOSEPH COLLEGE OF TEACHER EDUCATION FOR WOMEN, KOVILVATTOM ROAD, ERNAKULAM, COCHIN - 682 035.** **4. THE PRINCIPAL** - **ST.JOSEPH COLLEGE OF TEACHER EDUCATION FOR WOMEN, KOVILVATTOM ROAD, ERNAKULAM, COCHIN - 683 035.** **5. THE SELECTION COMMITTEE** - **(FOR SELECTION OF ASSISTANT PROFESSOR), REPRESENTED BY THE CHAIRMAN, SELECTION COMMITTEE (FOR SELECTION OF ASSISTANT PROFESSOR), ST. JOSEPH COLLEGE OF TEACHER EDUCATION FOR WOMEN, KOVILVATTOM ROAD, ERNAKULAM, COCHIN - 682 035.** **WP(C).No. 19496 of 2015** **---------------------------** ## **6. MRS. SMITHA** **ASSISTANT PROFESSOR IN EDUCATION, ST.JOSEPH COLLEGE OF TEACHER EDUCATION FOR WOMEN, KOVILVATTOM ROAD, ERNAKULAM, COCHIN - 682 035.** **R1-R2 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY R3-R5 BY ADVS. SRI.BABY ISSAC ILLICKAL SRI.ISAAC KURUVILLA ILLIKAL R6 BY ADVS. SRI.S.SREEKUMAR, SENIOR ADVOCATE SRI.THOMAS P.KURUVILLA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-01-2018, THE COURT ON 11-04-2018 DELIVERED THE FOLLOWING:** **sdr/-** **12.04.18** ## **WP(C).No. 19496 of 2015 ---------------------------** ## **APPENDIX** ## **---------** ## **PETITIONERS EXHIBITS** ## **---------------------** **EXT.P1 TRUE COPY OF THE NOTIFICATION/ADVERTISEMENT DATED 10.12.2014** **EXT.P2 TRUE COPY OF THE APPLICATION DATED 15.12.2015** - **EXT.P3 TRUE COPY OF THE LETTER DATED 23.02.2015** **EXT.P4 TRUE COPIES OF THE CERTIFIES PERTAINING TO THE PETITIONER** - **EXT.P5 TRUE COPY OF THE RELEVANT PORTIONS OF M.G. UNIVERSITY GUIDELINES DATED 13.04.1988 OBTAINED BY THE PETITIONER ALONG WITH REPLY** - **DATED 17.06.2015 ISSUED BY M.G. UNIVERSITY** ## **RESPONDENTS EXHIBITS** **---------------------** - **EXT.R1(A) TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE OF TEACHING STAFF AT ST.JOSEPH'S COLLEGE OF TEACHER EDUCATION FOR WOMEN, ERNAKULAM DT. 7.3.2015** - **EXT.R1(B) TRUE COPY OF THE APPOINTMENT ORDER NO.SJ/M/A/4/2015 DT. 11/03/2015 ISSUED TO SMT. SMITHA** **EXT.R1(C) TRUE COPY OF JOINING REPORT DT. 11/3/2015 OF SMT. SMITHA JOSE** **EXT.R4(A) PHOTOCOPY OF THE MINUTES OF THE MEETING HELD ON 07.03.2015** - **EXT.R4(B) PHOTOCOPY OF THE DETAILS OF MARKS SECURED IN THE INTERVIEW BY THE FIRST FIVE RANK HOLDERS** - **EXT.R4(C) PHOTOCOPY OF THE APPLICATION FORM SUBMITTED BY THE PETITIONER** - **EXT.R4(D) PHOTOCOPY OF THE APPLICATION FORM SUBMITTED BY THE 6TH RESPONDENT** - **EXT.R6(A) TRUE COPY OF RELEVANT PAGES OF THE GAZETTE NOTIFICATION DATED 28.11.2014** **/TRUE COPY/** **PA TO JUDGE sdr/12.04.18** ## **ANU SIVARAMAN, J.** ## **----------------------------------------------W.P(C).No. 19496 of 2015** **----------------------------------------------Dated this the 11[th] day of April, 2018** ## **JUDGMENT** This writ petition is filed seeking the following reliefs: - _“i. to declare that the petitioner is entitled to be appointed as Assistant Professor in Education in the 3[rd] respondent's College and that the 6[th] respondent is not entitled to be appointed as Assistant Professor in Education in the post notified as per Ext.P1._ - _ii. to issue a writ of mandamus directing the respondents to appoint the petitioner as Assistant Professor in Education in the 3[rd] respondent College and to cancel the appointment already given to 6[th] respondent n the very same post._ - _iii. to issue a writ of mandamus directing the respondents to approve the appointment of the petitioner and to disburse the salary due to the petitioner forthwith._ - _iv. to issue a writ of mandamus directing respondents 1 to 3 to terminate the service of the respondent No.6.”_ 2. Heard learned counsel for the petitioner, learned Standing Counsel for the University and the learned counsel appearing for respondents 3 to 5 as well as the learned counsel appearing for the 6[th] respondent. 2 _**WP(C).19496/15**_ 3. The issue raised in this writ petition is with regard to the appointment made to the post of Assistant Professor in Education in the 3[rd] respondent's College. It is stated that a notification had been issued on 10.12.2014 and the petitioner had submitted Exhibit P2 application in response thereto. She was called for an interview before the selection committee on 7.3.2015. It is stated that the petitioner has M.Sc with M.Ed NET qualification and Ph.d in Education. It is stated that the 6[th] respondent had been selected and appointed as Assistant Professor overlooking the petitioner's claim. It is stated that no ranked list was published but the petitioner understands that the 6[th] respondent was placed at Rank No.1 and the petitioner was placed at Rank No.2. The contention in the writ petition is that 100 marks had been awarded for the interview which was the deciding factor in the selection and the petitioner, who had higher ranks in terms of academic merit had been overlooked in the selection only due to the higher marks awarded to the 6[th] respondent in the interview. 4. It is contended that going by the guidelines dated 13.4.1988, only 30 marks should have awarded in the interview out of which 10 marks is for teaching experience. However, it is stated that 100 marks had been allotted for the interview and the _**WP(C).19496/15**_ 3 petitioner was overlooked only because of this fact. The petitioner places reliance on the decisions of the Apex Court in _**Miss Nishi Maghu & Others v. State of J & K Co.**_ [1980(4) SCC 95], _**Ajay Hasia & Others v. Khalib Mujib Sehravardi and Others**_ [(1981)1 SCC 722], _**Ashok Kumar Yadav and Others v. State of Haryana**_ [AIR 1987 SC 454] and _**Garg v. State of Punjab & Ors**_ [(1991)1 SCC 662] to contend that the selection procedure was irregular. The learned counsel also places reliance on the decision of the Apex Court in _**D.V.Bakshi and Others v. Union of India and Others**_ [(1993)3 SCC 663]. The decision of the Division Bench of this Court in _**Agricultural Income Tax and Sales Tax Officer v. Tata Tea Ltd.**_ [2002 KHC 458] was also relied upon to contend that after admitting a writ petition and keeping it pending for a considerably long time, the writ petition could not be dismissed on the ground of availability of an alternative remedy. 5. A counter affidavit had been filed on behalf of respondents 3 and 4 contending that the petitioner has an efficacious alternative remedy provided under Section 59(9) of the Mahatma Gandhi University Act, 1985 to take up the issue of appointment before the Appellate Tribunal. It was contended 4 _**WP(C).19496/15**_ that the selection was conducted specifically as provided in the guidelines and that only 20 marks had been allotted for the interview. The procedure adopted accepted by the selection committee is explained in paragraph 8 of the counter affidavit which reads as follows: _“8. …....Since the Selection Committee consisted of 5 members and since the selection committee can choose the mode of selection the total 20 interview marks to be given by members for convenience was fixed at a total of 100 marks. These 100 marks were split between the 5 members and marks were given by each member to each candidate out of 20 marks. The marks allotted by each member were totalled and its average of 20 was found out for converting the total of 100 marks to 20.”_ 6. The minutes of the meeting of the selection committee held on 7.3.2015 are produced as Exhibit R4(a). It is stated that the ranked list prepared on the basis of merit was approved by the Selection Committee unanimously. A photostat copy of the details of marks secured in the interview by the first five rank holders was also produced as Exhibit R4(b). It is stated that the 6[th] respondent was awarded 19.8 marks in the interview while the petitioner was awarded 9.6 marks and the 6[th] respondent secured total marks of 75.90 while the petitioner, who was _**WP(C).19496/15**_ 5 ranked No.2, had secured 72.78 marks out of 80. It is stated that the marks were awarded on the basis of the performance in the interview. It is contended that the petitioner had been granted all the marks which were due to her on the basis of her qualifications and experience as provided in the guidelines prescribed by the University for conduct of selection. It is further contended that the decisions relied upon by learned counsel for the petitioner have absolutely no relevance in view of the fact that the marks awarded in the interview were only 20 out of the total of 80 marks and the contentions are therefore misconceived. 7. The 6[th] respondent had also filed a counter affidavit. It is contended that the 6[th] respondent's qualifications are not under challenge. The only ground of challenge is that the 6[th] respondent was awarded more marks in the interview. It is stated that the awarding of marks in an interview by a Selection Committee is not a matter which can be looked into by this Court in exercise of its extraordinary jurisdiction. It is contended that since only 20 marks had been kept apart for interview, the allegations raised by the petitioner are bound to fail. It is further contended that the petitioner did not have the qualification for appointment as Assistant Professor in 6 _**WP(C).19496/15**_ Education going by the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2014 issued by the NCTE. It is stated that the requirements of the qualifications as notified by the NCTE have been held to have prevailing effect over all qualifications prescribed in State Acts or Regulations made there under and that the petitioner's qualifications are not in tune with the NCTE notification dated 28.11.2014. It is further contended that the 6[th] respondent had been appointed on 11.3.2015 and the University had approved the appointment on 19.1.2016. The 6[th] respondent's probation has also been declared to be satisfactorily completed. In the above view of the matter, it is contended that, the present writ petition is completely misconceived and is liable to be dismissed. 8. I have considered the contentions advanced. The petitioner has preferred this writ petition mainly on the ground that the marks awarded for the interview in the selection was excessive and had become the deciding factor. It was the specific case that 100 marks had been allotted for the interview and therefore the selection was illegal. The further ground raised was to the effect that no ranked list was prepared and published by the selection committee and that the appointment 7 _**WP(C).19496/15**_ had been made in a clandestine manner. The possession of the required qualifications by the 6[th] respondent is not in dispute at the instance of the petitioner in this writ petition. In view of the fact that the writ petition was admitted in 2015 and had been pending before this Court, I am not considering the objection regarding the maintainability of the same on the ground of existence of an alternate remedy. This Court having decided to entertain the writ petition on merits, the existence of an alternate remedy can, by no means, be a bar for the exercise of jurisdiction under Article 226 of the Constitution of India. 9. With regard to the allegation of allotment of 100 marks for the interview, respondents 3 to 5 had filed a counter affidavit refuting the said allegation. It is contended that there were five members in the selection committee and each of them evaluated the performance of the candidates in the selection. The aggregate of the marks secured by each candidate had been calculated by dividing marks given by all the members of the selection committee by five thereby limiting the marks awarded in the interview to 20 as has been prescribed in the guidelines. 10. The further allegation that there was no ranked list published is also refuted by the University. The minutes of the 8 _**WP(C).19496/15**_ selection committee held on 7.3.2015 are produced as Exhibit R4(a). The question of the availability of ranked list was evidently a matter which would have been considered by the University at the time of according approval of the appointment of the 6[th] respondent. In the absence of any further pleading as to any illegality in the award of marks or any departure from the list of selected candidates as recorded in Exhibit R4(a) minutes, I am of the opinion that the challenge raised against the selection cannot be sustained on the sole ground that the ranked list had not been duly published. 11. The appointment was made on 11.3.2015 and approval was also duly recorded by the University. The 6[th] respondent was found to be fully qualified for the appointment. The petitioner has not been able to establish any illegality vitiating the selection procedure which would justify any interference in the selection. The challenge raised to the selection therefore fails. The writ petition is accordingly dismissed. Sd/- **ANU SIVARAMAN JUDGE** _vgs_