Dr. Dayamon D Mathew v. Kerala Veterinary & Animal Sciences University

W.P(c).No.6399/2015 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY ,THE 18TH DAY OF DECEMBER 2018 / 27TH AGRAHAYANA, 1940** ## **WP(C).No. 6399 of 2015** ## **PETITIONER/S:** **DR.DAYAMON D MATHEW AGED 31 YEARS** **S/O. DAVID MATHEW, PALLIVATHUKKAL HOUSE, C.C.1/1570C, CHIRATTAPALAM, FORT KOCHI HEAD POST OFFICE, ERNAKULAM-682001.** **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENT/S:** - **1 KERALA VETERINARY & ANIMAL SCIENCES UNIVERSITY REPRESENTED BY THE REGISTRAR, KERALA VETERINARY & ANIMAL SCIENCES UNIVERSTITY, POOKODE, LAKKIDI.P.O., WAYANAD DISTRICT.** - **2 BOARD OF MANAGEMENT OF KERALA VETIRINARY & ANIMAL SCIENCES UNIVERSITY REPRESENTED BY THE CHAIRMAN/OFFICER IN CHARGE, KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY, POOKODE, LAKKIDI.P.O., WAYANAD DISTRICT.** - **3 DR.LAIJU M.PHILIP ASSISTANT PROFESSOR, DEPARTMENT OF VETERINARY SURGERY AND RADIOLOGY, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, MANNUTHY, THRISSUR - 680 651.** - **4 DR.DILEEP KUMAR K.M ASSISTANT PROFESSOR, DEPARTMENT OF VETERINARY SURGERY AND RADIOLOGY, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, MANNUTHY, THRISSUR - 680 651.** - **5 DR.SOUMYA RAMANKUTTY ASSISTANT PROFESSOR, DEPARTMENT OF VETERINARY SURGERY AND RADIOLOGY, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, MANNUTHY, THRISSUR - 680 651.** W.P(c).No.6399/2015 2 - **6 DR.SUDHEESH S.NAIR ASSISTANT PROFESSOR, DEPARTMENT OF VETERINARY SURGERY AND RADIOLOGY, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, MANNUTHY, THRISSUR - 680 651.** - **7 DR.REJI VARGHESE ASSISTANT PROFESSOR, DEPARTMENT OF VETERINARY SURGERY AND RADIOLOGY, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, POOKOT, WAYANAD - 673 576.** **8 JINESH KUMAR N.S ASSISTANT PROFESSOR, DEPARTMENT OF VETERINARY SURGERY AND RADIOLOGY, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, POOKOT, WAYANAD - 673 576.** **9 DR.MOHSINA A ASSISTANT PROFESSOR, DEPARTMENT OF VETERINARY SURGERY AND RADIOLOGY, COLLEGE OF VETERINARY AND ANIMAL SCIENCES, POOKOT, WAYANAD - 673 576.** **(ADDL.R3 TO R9 ARE IMPLEADED AS PER ORDER DATED 15.6.15 IN I.A.NO.7778/2017)** **BY ADVS.** **SMT.AYSHA YOUSEFF, SC, KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY SMT.C.K.REMANY SRI.C.A.ANOOP SRI.MILLU DANDAPANI, SC, K.V A.S. UTY SRI.SUNIL V.MOHAMMED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2018, THE COURT ON 18.12.2018 DELIVERED THE FOLLOWING:** W.P.(C) No.6399/15 ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No. 6399 of 2015-Y ------------------------------------------- _Dated this the 18[th] day of December, 2018_ ## _**JUDGMENT**_ The petitioner claims reservation in the appointment of Assistant Professors in the Kerala Veterinary and Animal Sciences University (`University' for short) treating the entire University as a unit and alleges that reservation taking the Department as a unit is not correct. 2. Pursuant to Ext.P1 notification issued by the University, the petitioner applied for the post of Assistant Professor (Veterinary Surgery and Radiology). He belongs to Malayaraya community which is a Scheduled Tribe. 8 vacancies were notified in the department altogether, in the colleges at Pookkode and Mannuthy. The notification is issued for appointment against a total number of 111 vacancies in various departments. According to the petitioner, the entire appointments have to be revised. When there are more than 100 vacancies of Asistant Professors altogether, at least 2 vacancies should be filled up by appointing candidates belonging to Scheduled Tribe (ST), but no candidate is appointed. 3. The petitioner is rank No.17 in the rank list for the discipline W.P.(C) No.6399/15 :4: Veterinary Surgery and Radiology. The petitioner has also claimed that his past experience should be reckoned towards experience and he was entitled to be awarded marks in tune with clause 10.1 (a) of the UGC Regulations which provides for counting of previous regular service, whether national or international. The petitioner challenges the rank list on the ground that the said list is prepared without considering his past experience as a fellow in Sree Chitra Fellow-C (Veterinary) Division of In-vivo Models & Testing Biomedical technology wing from October, 2013 onwards. 4. I.A.No.7779/2015 was filed thereafter stating that the awarding of marks to the petitioner under various heads was not as provided in key to marks/score card. He was given only 44.25 marks and that no marks were awarded under the head `Additional Educational qualifications' for which 10 marks is admissible out of which 6 marks is allocated to a Ph.D holder. It is stated that even though he produced the certificate of Ph.D at the time of interview, marks were not awarded. It is also his case that for participation in seminars with paper presentation also he is not awarded the admissible marks and that he has participated in 5 national seminars and presented papers and one international seminar where also he presented the papers and therefore he was entitled to 5 marks for this as against 1.25 marks awarded W.P.(C) No.6399/15 **==> picture [12 x 8] intentionally omitted <==** to him. It is his further case that in the category of assessment of domain knowledge and teaching skill for the subcategory A, he was awarded only 2 marks; whereas he is eligible for 4.5 marks. Therefore, according to the petitioner, if the above marks were given to him properly he would have scored 57 marks instead of 44.25 and in that event he would have been ranked No.5 and since Dr.Dilip Kumar who is rank No.4 who is already given appointment is one granted age relaxation he will again be numbered 4 in his place and would have got appointment. 5. It is pertinent to note that all these details regarding the marks in seminars, etc. have been furnished by the petitioner in a petition for direction and allegations are raised as to the awarding of marks without any amendment to the writ petition. 6. The party respondents have filed a counter affidavit with respect to his contentions in the writ petition. In the counter affidavit filed by respondents 1 and 2 it is stated that the petitioner was awarded marks in accordance with his eligibility. It is further stated that he did not produce any valid documents to show that he was a member of the professional body pointing out that award received by him cannot be considered as an award/medal having any weightage. He did not also produce any material in W.P.(C) No.6399/15 :6: proof of his participation in seminars at the time of submission of application and that whatever materials were mentioned in the application have already been considered and given marks. It is further stated that the petitioner had not acquired Ph.D at the time of submitting application; they have followed the principles of reservation and communal rotation as prescribed under KS&SSR. It is stated that the selection and appointments were made strictly in accordance with the rules. 7. The petitioner filed a reply affidavit denying the contentions in the counter affidavit. The learned counsel for the petitioner relies on the notification issued by the UGC on 25.8.2006 which directs to observe the principles of reservation on total number of posts in the same cadre. Sub clause v of clause 8 thereof provided that the Roster, 40-point or 100-point as the case may be, shall be applied to the total number of posts in cadre only; cadre is best indicated by seniority list governing the members with the same pay scale. It is also pointed out that in all other Universities reservation is observed taking all the departments as a single unit. A letter dt.5.3.2018 of the UGC addressed to the Registrars was also made available for perusal in which the Universities were directed to prepare the roster system keeping the Department/Subject as a unit for all levels of teachers as W.P.(C) No.6399/15 :7: applicable. 8. Having heard the contentions on either side, it is necessary to examine whether the principles of reservation and communal rotation are to be observed department wise or University wise. In this context Statute 132 of the University first Statute is relevant, which read as follows: _“ 132. Appointment of teachers: (1) The teachers of the University shall , other than short term contract appointments, be appointed by the Board of Management after advertisement inviting applications by issuing notifications in the University website and through all India advertisement in one prominent new paper. In making appointments by direct recruitment to posts in any class or category in each department under the university, the University shall observe the provisions of the selection procedures approved by the academic council based on the UGC Regulations as amended from time to time._ _(2) After interviewing the candidates the selection committee shall submit the list of eligibility in the order of preference to the Vice Chancellor;_ _(3) the Vice-Chancellor shall then submit the list to the Board of Management which shall thereupon make the final selection for appointment._ _(4)_ _**in making appointment to the posts in any class or category in each department under the university** , subject to the provisions contained in Section 58 of the Act, the University shall observe the provisions of Clause (a), (b) or (c) of rule 14 or rule 15, 16 and 17 of the Kerala State and Subordinate Service Rules, 1958 as amended from time to time._ _(5) xxxxxx"_ 9. In this Writ Petition there is no challenge against clause (4) of Statute 132 which provides that the provisions of clause a, b and c of Rule 14 and Rules 15, 16 and 17 of KS&SSR shall apply in making appointments to posts in any class or category in each Department under the University. Therefore, the contention of the petitioner that principles of reservation shall be applied taking entire University including all the Departments as a single W.P.(C) No.6399/15 :8: unit is unsustainable. 10. The other grounds urged in the Writ Petition are : (1) his service as Fellow in Sree Chitra Fellow-C (Veterinary) Division should have been reckoned towards experience as provided in clause 10(i)(a) and marks should have been awarded for the same, (2) marks are not awarded considering his Ph.D, etc. When the petitioner himself claims a benefit in tune with clause 10(i)(a) of UGC Regulations, he has to substantiate that he fulfilled all the conditions (a) to (f) under Clause 10 of Ext.P3, in order to reckon the said service towards experience. Apart from the fulfilment of qualification for the post, it should be in an equivalent grade, it should have been filled in accordance with the prescribed selection procedure as laid down in the Regulations of the University, State or Central Government. The petitioner has not denied the contention of the 1[st] respondent that his appointment as Fellow was after undergoing any entrance examination. Clause 10 of Ext.P3 regulation of UGC reads as follows: _“xxxx xxxxx xxxxx xxxxx 10.0 COUNTING OF PAST SERVICES FOR DIRECT RECRUITMENT AND PROMOTION UNDER CAS_ _10.1. Previous regular service, whether national or international, as Assistant Professor, Associate Professor or Professor or equivalent in a University, College, National Laboratories or other scientific/professional Organizations such as the CSIR, ICAR, DRDO, UGC, ICSSR, ICHR, ICMR, DBT, etc. should be counted for direct recruitment and promotion under CAS of a teacher as Assistant Professor, Associate Professor, Professor of anyother nomenclature these posts are described as per Appendix II – Table No.II provided that:_ W.P.(C) No.6399/15 :9: _(a) The essential qualifications of the post held were not lower than the qualifications prescribed by the UGC for Assistant Professor, Associate Professor and Professor as the case may be._ _(b) The post is/was in an equivalent grade or of the pre-revised scale of pay as the post of Assistant Professor (Lecturer) Associate Professor (Reader) and Professor_ _(c) The candidate for direct recruitment has applied through proper channel only._ _(d) The conerned Assistant Professor, Associate Professor and Professor should possess the same minimum qualifications as prescribed by the UGC for appointment to the post of Assistant Professor, Associate Professor and Professor, as the case may be._ _(e) The post was filled in accordance with the prescribed selection procedure as laid down in the Regulations of University/State Government/Central Government/Concerned Institutions, for such appointments._ _(f) The previous appointment was not as guest lecturer for any duration, or an ad hoc or in a leave vacancy of less than one year duration. Ad hoc or temporary service of more than one year duration can be counted provided that:_ _(i) the period of service was of more than one year duration;_ _(ii) the incumbent was appointed on the recommendation of duly constituted Selection Committee; and”_ The benefit under Rule 10 would be available if all the conditions (a) to (f) are satisfied. When the petitioner has failed to satisfy the same, he cannot have any claim for marks under that head. 11. As against the claim of the petitioner for marks for Ph.D, it is seen that the petitioner was awarded Ph.D only after the last date fixed for receipt of application. In the application the petitioner had stated Ph.D-prethesis submission seminar delivered. In the Writ Petition also he stated that he had submitted the pre-thesis submission seminar at the time of application and that he produced the certificate at the time of interview. It is settled law that only those qualifications which a candidate possessed at the W.P.(C) No.6399/15 **==> picture [18 x 8] intentionally omitted <==** time of submission of application or at least as on the last date fixed for receipt of application alone can be considered for selection. The petitioner does not have a case that he was having Ph.D as on any of the aforesaid dates. 12. In fact it is not necessary for this Court to consider any claim which is not raised in the Writ Petition. Even the claims the petitioner raised in I.A for direction regarding the awarding of marks under different heads, are not substantiated by producing any materials to show that the documents were mentioned in his application. The notification inviting applications, specifically directs candidates that applications shall be accompanied by attested copies of all the testimonials. A candidate cannot be permitted to produce materials not even mentioned in the application. Therefore, the claims raised on awarding of marks are only to be discarded. 13. Moreover, the petitioner has not raised any allegation of malafides against the members of the selection committee. In the light of judgment of the Apex Court in _**Basavaiah (Dr.) v. Dr.H.L.Ramesh and others** : (2010) 8 SCC 372 and_ _**Madras Institute of Development Studies and anr. v. Dr. K.Sivasubramaniyan & Ors.** : 2015 KHC 4547,_ the rank list prepared on the basis of the recommendations of a selection Committee W.P.(C) No.6399/15 **==> picture [17 x 8] intentionally omitted <==** consisting of distinguished experts in the field made after evaluation of the candidates with reference to their qualification, experience, published work, etc. are not liable to be interfered with by this Court, under Article 226 of the Constitution of India. In the above circumstances, the Writ Petition fails and is dismissed. _Sd/_ _**(P.V.ASHA, JUDGE)**_ _rtr/_ W.P.(C) No.6399/15 :12: ## **APPENDIX OF WP(C) 6399/2015** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 EXT.P1. TRUE COPY OF THE NOTIFICATION DATED 12-6-2014 ISSUED BY THE 1ST RESPONDENT UNIVERSITY.** **EXHIBIT P2 EXT.P2. TRUE COPY OF THE RANKED LIST DATED 11-2-2015 TOGETHER WITH NOTIFICATION DATED 11-2-2015.** **EXHIBIT P3 EXT.P3. TRUE COPY OF THE RELEVANT PART OF CLAUSE 10.1(a) OF THE UGC REGULATIONS.** - EXHIBIT-P4 TRUE COPY OF THE APPLICATION DATED 21.2.2015 FILED BY THE PETITIONER. - EXHIBIT-P5 TRUE COPY OF THE REPLY DATED 25.3.2015. EXHIBIT-P6 TRUE COPY OF THE SCORE CARD. - EXHIBIT-P7 TRUE COPY OF THE TABLE SHOWING SPLIT UP DETAILS OF MARKS AWARDED TO CANDIDATES. - EXHIBIT-P8 TRUE COPY OF THE DETAILS OF THE CANDIDATES SHOWING THE PRESENT RANK NUMBER AND DATE OF BIRTH. - EXHIBIT-P9 TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION DATED 4.3.2014 ISSUED BY KARNATAKA VETERINARY, ANIMAL & FISHERIES SCIENCES UNIVERSITY. - EXHIBIT-P10 TRUE COPY OF THE APPLICATION FOR THE POST OF ASSISTANT PROFESSOR SUBMITTED BY THE PETITIONER. RESPONDENTS' EXHIBITS - EXT.R5(a) APPOINTMENT ORDER DATED 07.03.2015 ISSUED BY THE REGISTRAR OF KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY, POOKODE, WAYANAD.