Dr. Aruna P.K. v. University of Calicut and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **THURSDAY, THE 12TH DAY OF SEPTEMBER 2013/21ST BHADRA, 1935** ## **WP(C).No. 3879 of 2012 (H)** **--------------------------------------** ## **PETITIONER(S):** **--------------------------** **DR.ARUNA P.K., AGED 51 YEARS ASSOCIATE PROFESSOR, DEPARTMENT OF EDUCATION UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM.** **BY ADV. SRI.P.C.SASIDHARAN** ## **RESPONDENT(S):** - **----------------------------** **1. UNIVERSITY OF CALICUT** - **REPRESENTED BY ITS REGISTRAR, THENHIPALAM, MALAPPURAM - 673 635** **2. THE VICE CHANCELLOR, UNIVERSITY OF CALICUT, THENHIPALAM, MALAPPURAM - 673 635** **3. THE SELECTION COMMITTEE CONSTITUTED FOR SELECTION TO THE POST OF PROFESSOR IN THE DEPARTMENT OF EDUCATION REPRESENTED BY ITS CHAIRMAN, VICE CHANCELLOR - 673 635** **4. YESHODHARA, PROFESSOR AND HEAD OF DEPARTMENT OF EDUCATION, UNIVERSITY OF MYSORE, KARNATAKA -570 001** **5. R.SUKUMARAN NAIR,** - **RETIRED PROFESSOR AND HEAD EDUCATION DEPARTMENT UNIVERSITY OF CALICUT, THENJIPALAM, MALAPPURAM - 673 635** **6. DR.KELU, CO-ORDINATING DIRECTOR OF B.ED. COURSES, DEPARTMENT OF EDUCATION, UNIVERSITY OF CALICUT THENHIPALAM, MALAPPURAM - 673 635** **7. ZIRAJ, ASSOCIATE PROFESSOR, FEROK COLLEGE, KOZHIKODE - 673 001** **8. DR.BINDHU C.M., SELECTION GRADE LECTURER, FEROK TRAINING COLLEGE, KOZHIKODE - 673 001** **R1 TO R3 BY ADV. SRI. SANTHOSH MATHEW, SC, CALICUT UNIVERSITY R6 BY ADV. SRI.ARUN THOMAS R8 BY ADV. SRI.V.VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** **WP(C).No. 3879 of 2012 (H)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :-** - **EXT.P1 COPY OF THE NOTIFICATION ISSUED BY THE UNIVERSITY DATED 27/12/2010.** - **EXT.P2 COPY OF THE CURRICULAM VITAE OF THE PETITIONER.** - **EXT.P3 COPY OF THE CURRICULAM VITAE OF THE 8TH RESPONDENT.** - **EXT.P4 COPY OF THE INTERIM ORDER ISSUED BY THE HONOURABLE COURT DATED 2/2/2012 IN WPC.2710/2012.** - **EXT.P5 COPY OF THE RELEVANT EXTRACT OF THE UNIVERSITY GRANTS COMMISSION NORMS.** - **EXT.P6 COPY OF G.O.(P)NO.392/2010/H.EDN. DATED 10/12/2010.** - **EXT.P7 COPY OF THE JUDGEMENT IN WA.2229/2006.** - **EXT.P8 COPY OF THE NOTE PUT UP TO THE SYNDICATE DATED 4/2/2012.** - **EXT.P9 COPY OF THE MINUTES.** - **EXT.P10 COPY OF THE RELEVANT EXTRACT OF THE 8TH MEETING OF THE SYNDICATE.** ## **RESPONDENTS' EXHIBITS :-** - **EXT.R8(a) COPY OF THE EXPERIENCE CERTIFICATE DATED 30.01.2012 ISSUED TO THE 8TH RESPONDENT BY THE PRINCIPAL OF FAROOK TRAINING COLLEGE, CALICUT.** - **EXT.R8(b) COPY OF THE CERTIFICATE NO. C1.SB.31/2012-13 DATED 04.05.2012 ISSUED BY THE PRINCIPAL OF FAROOK TRAINING COLLEGE, CALICUT.** - **EXT.R8(c) COPY OF THE CURRICULAM VITAE OF THE 8TH RESPONDENT** - **EXT.R8(d) COPY OF THE LIST OF PAPERS AND BOOKS PUBLISHED BY THE 8TH RESPONDENT** - **EXT.R8(e) COPY OF THE Ph.D. REGISTRATION COMMUNICATION DATED 22.12.2009 IN RESPECT OF SEEMA S. WITH THE 8TH RESPONDENT AS GUIDE, ISSUED BY KARPAGAM UNIVERSITY** **DCS** **WP(C).No. 3879 of 2012 (H)** **EXT.R8(f) COPY OF THE Ph.D. REGISTRATION COMMUNICATION DATED 26.06.2010 IN RESPECT OF JOBIN GEORGE WITH THE 8TH RESPONDENT AS GUIDE, ISSUED BY KARPAGAM UNIVERSITY EXT.R8(g) COPY OF THE ORDER NO. CDC/B1/1441/2003 DATED 21.02.2004 OF THE DIRECTOR IN CHARGE, UNIVERSITY OF CALICUT EXT.R8(h) COPY OF THE RANKED LIST FOR THE VARIOUS POSTS INCLUDING THE POST OF PROFESSOR IN EDUCATION RESERVED FOR SCHEDULED CASTE COMMUNITY PUBLISHED BY THE 1ST RESPONDENT UNIVERSITY** **/TRUE COPY/** **P.A. TO JUDGE** **DCS** ## **A.M.SHAFFIQUE, J** ## *** * * * * * * * * * * * *** W.P.C.No.3879 of 2012 ---------------------------------------- Dated this the 12[th] day of September 2013 ## **J U D G M E N T** Petitioner is an applicant to the post of Professor in the Department of Education in terms of notification issued by the first respondent University as per Ext.P1 dated 27/12/2010. Petitioner submits that she has the required qualifications. She was called for an interview on 03/02/2012 and she could attend the interview only on the basis of an interim order passed by this Court in W.P.C No 2710 of 2012. 2. The petitioner has two complaints. One is that the selection was done by a Selection Committee, which is not a duly constituted Selection Committee in terms of University Act and the Statutes framed thereunder. Another contention is that the Selection Committee has called the 8[th] respondent for interview who is not duly qualified and that she is not a person who is eligible to be appointed to the W.P.C.No.3879/2012 2 post of Professor. 3. According to the petitioner, as per the University Statute the Selection Committee shall normally consist of the five members. The Vice Chancellor shall be the Ex-Officio Chairman of the Committee. For the post of Professor, the Committee shall consist of the Head of the Department who is in the rank of Professor in the concerned subject if the selection is made to an additional post of Professor. Where there is no University Professor in the concerned subject one or more additional experts has to be appointed by nomination of the Syndicate. One member of the Syndicate nominated by the Vice Chancellor and two other experts in the subject to which the appointment is to be made shall also be members of the Selection Committee. The Registrar shall be the Secretary of the Committee. According to the petitioner the Vice Chancellor constituted a Selection Committee consisting of respondents 4 to 7. Even according to the petitioner, respondents 4 and 5 are outside experts. In W.P.C.No.3879/2012 3 respect of the 6[th] respondent, according to the petitioner, he is a Professor who retired on 31/03/2008 and thereafter he was appointed as Director of B.Ed Centre and as of now he is an University employee receiving salary and allowances from the University fund. The 7[th] respondent is a Syndicate member and a colleague of the 8[th] respondent. The contention is that the Head of the Department Dr.Meera.K.P. was not made part of the Selection Committee. Dr.Kelu, the 6[th] respondent is not an outside expert. Reliance is placed in the judgement of this Court in W.A.No. 2229 of 2006. 4. In regard to the 8[th] respondent it is contended that the Standing Committee on staff has conducted an enquiry against her on a complaint received by the University and it was found that the 8[th] respondent and her husband has done plagiary and copying of research work of another person. Recommendation is made to take appropriate action against them. Petitioner also has a case that the 7[th] respondent is a colleague of the 8[th] respondent. W.P.C.No.3879/2012 4 5. Statement is filed by the Standing Counsel for the University on behalf of respondents 1 to 6. It is contended that as per Calicut University First Statutes 1977, as per Statute 4(1)(ii)(a), Selection Committee for the post of a Professor where there is no University Professor in the subject, one more additional expert shall be nominated by the Syndicate. It is also provided that no member of the Committee who is an applicant for the post is related to or interested in any of the applicants for the post shall take part in the deliberations of the Committee so far as that post is concerned. This is provided in Chapter 3 Statute 2. 6. Since there was no University Professor in the subject in the Department in accordance with the Statute, Dr.Kelu, the 6[th] respondent who was a retired Professor of the Department was included in the Selection Committee. Sri K.A.Siraj was included in the Selection Committee as member of the Syndicate. He is working as Associate Professor in the Department of Physics in Farooq college. W.P.C.No.3879/2012 5 The 8[th] respondent is a Selection Grade Lecturer in Farooq Training College which is a different establishment. Therefore it is contended that the Selection Committee was formed in accordance with the stipulations in Statute 4 of Chapter 3. 7. In regard to the implementation of UGC Regulations 2010 it is contended by the University that the UGC Regulations will come into force only when the draft amendment to the University Regulations is prepared, recommended by the Syndicate and approved by the Academic Council and place before the Senate. It is inter alia stated that the matter was considered by the Academic Council in its meeting held on 24/03/2012. 8. Reliance is also placed in the judgement of the Supreme Court in **University of Delhi v. Raj Singh** _[AIR 1995 SC 336]_ , judgement of this Court in **Joykutty v. State of Kerala** _[2000(3) KLT SN 38]_ , **S.N.College v. N.Raveendran** _[2000(1) KHC 830]_ , **Mathai M.M. v.** W.P.C.No.3879/2012 6 **Elizabeth Xavier** _[2011 (2) KHC 387],_ **Baby Chakrapani v. Cochin University of Science and Technology** in W.P.C No.30040 of 2011 dated 24/02/2012 inter alia contending that UGC order as such is not binding unless the relevant amendments have been made to the University Statutes. It is also contended that when the notification inviting applications was issued on 27/12/2010 the UGC Regulations have not been implemented in the University. 9. The 8[th] respondent has filed counter affidavit inter alia supporting the stand of the University in relation to the appointment of the Selection Committee. It is contended that for the selection to the post of Professor there must be five members in the Selection Committee. They are, the Vice Chancellor, the Head of the Department if he is a Professor and if he is not a Professor, an additional expert nominated by the Syndicate, a member of the Syndicate and two experts in the subject. It is contended that the Head of the Department Dr K.P.Meera at the relevant time was not a W.P.C.No.3879/2012 7 Professor. She was only an Associate Professor at the time of interview. The officers available in the Department could not be included in the Selection Committee because they were not the Head of the Department at the relevant time. It is further contended that the 8[th] respondent was fully qualified to apply to the said post. It is also contended that there was no teacher by name K.A.Siraj working in Farooq Training College. She also narrated the various qualifications she was having and denied the allegations made against her by the petitioner. 10. Having regard to the aforesaid contentions, two questions arise for consideration. One is regarding the Constitution of the Selection Committee. The second question is regarding the competence of the 8[th] respondent in being called for the interview. The grievance in regard to the Selection Committee is two fold. One is regarding inclusion of the sixth and the seventh respondents in the Selection Committee. Second is not following the UGC W.P.C.No.3879/2012 8 Regulations for the purpose of appointing Selection Committee. As far as the second contention is concerned, there is no dispute about the fact that UGC Regulations had not been implemented in the University. That apart, at the time of inviting the applications in terms of Ext.P1 the UGC Regulations had not come into force nor was it approved even by the Government. Therefore such a contention is not available. Therefore what is to be verified is only regarding the Constitution of the Selection Committee as per the University Statutes. 11. As far as the first question is concerned reference has been made to the University Statutes especially Chapter 3. The objectionable part is the appointment of Dr.Kelu the 6[th] respondent. He is a retired Professor from the University. The petitioner does not have a case that the Head of the Department Dr.Meera was functioning as a Professor. According to the 8[th] respondent she was only working as Associate Professor though she was the Head of the W.P.C.No.3879/2012 9 Department. Therefore when there is no University Professor in the subject, as per Statute 4(i)(ii)(a), one more additional expert shall be nominated by the Syndicate. The Statute does not indicate that the additional expert shall not be a retired person. In that view of the matter I do not think that the nomination of the sixth respondent was in any way bad in law. The next objection was on the basis that the nominee of the Syndicate was a colleague of the 8[th] respondent. This fact is denied by the University as well as the 8[th] respondent. The 8[th] respondent was not working in the College in which the 7[th] respondent is working. Therefore the said allegation of bias is without any basis. 12. The other question is with reference to the disqualification of the 8[th] respondent. The petitioner has made several contentions on the basis of Ext.P10, wherein a reference is made stating that a complaint was lodged by a person against the 8[th] respondent stating that she has copied her research work and that it was done jointly with W.P.C.No.3879/2012 10 Dr.Sudheesh Kumar. An enquiry is seen conducted and it is recommended by the Standing Committee on staff that the case was one of plagiary and copying the research work by Dr.Sudheesh Kumar and Dr.Bindu and hence it is recommended that appropriate action could be initiated against such persons as per existing Rules. On this basis it is contended that such person should not be given any opportunity to be part of such crucial posts. In respect of the said allegation, the 8[th] respondent has contended that she has not received a copy of the same until it is produced by the petitioner. It is alleged that the same has been prepared with the intention of prejudicing and creating a bias against her late husband Dr.Sudheesh Kumar. According to her the finding clearly contradicts with what is stated in the earlier part of the said document stating about the role played by her husband in guiding and motivating the complainant. According to her such a report cannot be used against her as it was not communicated to her and no action had been W.P.C.No.3879/2012 11 taken pursuant to the same. 13. Having regard to the aforesaid factual situation, the question to be considered is whether the 8[th] respondent can be denied an opportunity to participate in the selection process on the basis of Ext.P10. Ext.P10 appears to be an appendix to item number 2007.826. It is seen prepared by the Convenor, Standing Committee on staff. A detailed consideration is seen made but it is not known as to what further action had been taken in the matter. If the University has not taken any action against the 8[th] respondent pursuant to the aforesaid report, it will not preclude the 8[th] respondent from participating in the interview, if she is otherwise qualified. It is therefore open for the University or the Selection Committee as the case may be to consider whether the 8[th] respondent is qualified for the post in terms of the qualification criteria prescribed therein. Hence I do not think that the petitioner has made out a case for interference of the selection process at this W.P.C.No.3879/2012 12 stage. 14. The University could not make appointment on account of the stay granted by this court. The learned counsel for the 8[th] respondent would argue that the 8[th] respondent is entitled for the all the benefits she would have obtained had she been appointed in the usual course. Of course the principle that “an act of court shall not prejudice no one” is well accepted and courts are bound to do restitute the damage caused by an order of court by giving appropriate reliefs like retrospective appointment. ( **Dr.A.R.Sircar v. State of U.P. and Others** _[(1993) Supp (2) SCC 734],_ **Amarjeet Singh v. Devi Ratan** _[(2010) 1 SCC 417])._ Hence it shall be open for the University to appoint the 8[th] respondent to the said post with effect from the date on which the appointment orders were issued to other candidates who were selected based on the same notification, but for the interim order passed by this court. But it is made clear that the concerned candidate shall not W.P.C.No.3879/2012 13 be entitled for any other benefits other than seniority with effect from the said date of appointment. With the above observations in favour of the 8[th] respondent, this writ petition is dismissed. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr