Dr. Faizal P. v. Kannur University & Others, WA No. 1105 of 2021

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 17[TH] DAY OF AUGUST 2022 / 26TH SRAVANA,** ## **1944** ## **WA NO. 1105 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 28583/2020 DATED 28.07.2021 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **DR.FAIZAL P., AGED 40 YEARS 'ROSEBED', CHADALAPUZHA ROAD, KADIRUR P.O., THALASSERY, KANNUR, PIN - 670 642.** **BY ADVS. P.K.IBRAHIM SREEJI K.B.** ## **RESPONDENTS/RESPONDENTS:** - **1 THE KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O., KANNUR DISTRICT, PIN - 670 002 REPRESENTED BY ITS REGISTRAR.** - **2 THE VICE CHANCELLOR, KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O., KANNUR DISTRICT, PIN - 670 002.** - **3 THE CHAIRMAN/THE VICE CHANCELLOR SELECTION COMMITTEE CONSTITUTED TO THE POST OF ASST. PROFESSOR, DEPARTMENT OF BIOTECHNOLOGY AND MICROBIOLOGY, KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION P.O., KANNUR DISTRICT,PIN - 670 002.** - **4 UNIVERSITY GRANTS COMMISSION (UGC) BAHADUR SHAH ZAFAR MARG, NEW DELHI - 110 002** 2 Writ Appeal No.1105 of 2021 ## **REPRESENTED BY ITS SECRETARY.** **5 DR. ANEESH CHANDRAN N.A. ASSISTANT PROFESSOR, DEPARTMENT OF BIOTECHNOLOGY AND MICROBIOLOGY, SCHOOL OF LIFE SCIENCES, KANNUR UNIVERSITY THALASSERY CAMPUS, PALAYAD P.O., PIN - 670 661. BY ADVS. M.SASINDRAN SRI.S.KRISHNAMOORTHY, CGC P.C.SASIDHARAN SHRI.I.V.PRAMOD, SC, KANNUR UNIVERSITY** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 Writ Appeal No.1105 of 2021 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **----------------------------------------------Writ Appeal No.1105 of 2021 ----------------------------------------------Dated this the 17[th] day of August, 2022.** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This appeal is directed against the judgment dated 28.07.2021 in W.P.(C) No.28583 of 2020. The appellant was the petitioner in the writ petition. 2. Kannur University (the University) issued Ext.P1 notification on 3.10.2019 inviting applications online for selection for appointment to the post of Assistant Professor in Biotechnology and Microbiology. There was only one vacancy. The eligibility criteria and methodology for selection were as prescribed in the University Grants Commission Regulations on 4 Writ Appeal No.1105 of 2021 Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 (the Regulations). Out of the 131 applicants, 123 applicants including the appellant were short-listed for interview, after which, the fifth respondent who secured first rank in the selection was appointed. The appellant could secure only 66[th] rank in the selection. According to him, the assessment criteria should have been as prescribed in Tables 1, 2 and 3A of Appendix II to the Regulations, and the selection was not in accordance with the same. It was also alleged by the appellant that in terms of Table 3A, pre-doctoral and post-doctoral teaching experience should have also been taken note of in the matter of conducting the selection and the online application format provided to the candidates did not contain provision for uploading the pre-doctoral teaching experience. It was also alleged by the appellant that norms for conducting the interview have been fixed by the Vice-Chancellor of the 5 Writ Appeal No.1105 of 2021 University, who is not empowered to do so, that too, after issuance of the notification. The appellant, in the circumstances, instituted the writ petition seeking a declaration that the selection made pursuant to Ext.P1 notification is illegal. 3. A counter affidavit was filed in the matter on behalf of the University contending, _inter alia_ , that the selection was in accordance with the Regulations; that the academic scores specified in Table 3A of Appendix II were intended only for short-listing the candidates for interview; that the selection was based solely on the performance of the candidates in the interview and that the Selection Committee was competent to assess the suitability of the applicants to the post. It was also stated in the counter affidavit that Table 1 of Appendix II is intended for selection of University/College Teachers for considering promotions under Career Advancement Scheme and Table 2 of Appendix II is intended for calculating Academic/Research Score of University and College teachers, for the post of Associate Professors and Professors. 6 Writ Appeal No.1105 of 2021 4. The learned Single Judge found that Tables 1 and 2 of Appendix II do not apply to the selection for appointment of Assistant Professor and Table 3A applies only for short-listing the candidates for interview. It was also found by the learned Single Judge that the methodology of analysis of the merits and credentials of the applicants adopted by the Selection Committee was very much in accordance with the Regulations. It was further found by the learned Single Judge that insofar as the appellant has participated in the selection process, in the absence of any allegation of _mala fides_ , he is precluded from challenging the selection. In the light of the findings aforesaid, the writ petition was dismissed. It is aggrieved by the said decision of the learned Single Judge that the appellant has come up in this appeal. 5. Heard the learned counsel for the appellant as also the learned counsel for the fifth respondent. 6. The learned counsel for the appellant argued that the specific case set out by the appellant in the writ 7 Writ Appeal No.1105 of 2021 petition was that he came to know that the selection was not in accordance with the Regulations only after the selection and that there cannot, therefore, be any impediment for him in challenging the selection process. It was argued by the learned counsel that the selection should have been in terms of Tables 1, 2 and 3A of Appendix II to the Regulations and the selection was not conducted in accordance with the prescriptions contained therein. It was also argued by the learned counsel for the appellant that pre-doctoral and post-doctoral teaching experience should have been taken note of in the matter of conducting the selection in terms of Table 3A of Appendix II, and the online application format provided to the candidates did not contain provisions for uploading the pre-doctoral teaching experience. It was also argued by the learned counsel that neither the Academic Council nor the Syndicate of the University has framed any criteria for the Selection Committee to award marks for the interview either before or after the notification and the norms for awarding marks for the interview 8 Writ Appeal No.1105 of 2021 have been prescribed only after the notification by the ViceChancellor of the University. According to the learned counsel, the Vice-Chancellor of the University had no authority to prescribe the norms for awarding marks for the interview, and the selection made based on the said norms is liable to be interfered with. The learned counsel has relied on the decisions of the Apex Court in **P. Mohanan Pillai v. State of Kerala** , AIR 2007 SC 2840 and **K. Manjusree v. State of A.P.** , AIR 2008 SC 1470, in support of the said argument. It was also argued by the learned counsel that the criteria fixed by the Vice-Chancellor for awarding marks for the interview were for (1) research, (2) publication, (3) teaching ability and language competence and (4) inter disciplinary and domain knowledge, of which 'inter disciplinary and domain knowledge' is something which would not fall within the scope of the Regulations. 7. Per contra, the learned Standing Counsel for the University conceded that the norms for the interview have been fixed by the Vice-Chancellor after the notification. 9 Writ Appeal No.1105 of 2021 According to him, in the light of Section 11 of the Kannur University Act (the Act), the Vice-Chancellor is competent to fix the norms for interview, and selection cannot be said to be vitiated on account of the same. It was also submitted by the learned counsel that in the absence of any case for the appellant that any prejudice has been caused to him on account of the fixation of the norms for the interview by the ViceChancellor after the notification, the appellant cannot be heard to contend that the selection is vitiated on that ground. 8. The learned counsel for the fifth respondent supported the selection pointing out that the selection was strictly in adherence to the provisions contained in the Regulations. It was also pointed out that in the absence of any allegation of malice by the appellant against the members of the Selection Committee, this Court ought not have entertained the writ petition inasmuch as the appellant could secure only 66[th] rank in the selection process as against the 1[st] rank secured by the fifth respondent. 10 Writ Appeal No.1105 of 2021 9. We have examined the arguments advanced by the learned counsel for the appellant as also the learned counsel for the fifth respondent. 10. As noted, the candidate appointed to the post is the candidate who secured 1[st] rank in the selection, whereas the appellant has secured only the 66[th] rank in the selection. As rightly pointed out by the learned counsel for the fifth respondent, there is no allegation of _mala fides_ against the members of the Selection Committee in the matter of assigning ranks to the participants in the selection. As such, according to us, the impugned judgment is one that could be affirmed on that sole ground as the jurisdiction under Article 226 is one to be exercised by the court in its discretion, having regard to the facts of each case and this Court is not obliged to interfere with every illegality, irrespective of its nature in the orders impugned. 11. Be that as it may, let us examine the contentions raised by the appellant on the merits of the matter. 11 Writ Appeal No.1105 of 2021 Table 3A of Appendix II provides that the short-listing of candidates for interview for the post of Assistant Professor in the University shall be as per the criteria mentioned therein. It seems that it is on account of the said prescription that it is provided in the Note appended to Regulation 4.1 dealing with the eligibility of the candidates to be considered for appointment to the post of Assistant Professor that the academic scores as specified in Appendix II (Table 3A) for Universities shall be considered for short-listing of candidates for interview only, and the selection shall be based only on the performance in the interview. As noted, one of the arguments advanced by the learned counsel for the appellant is that predoctoral and post-doctoral teaching experience should have also been taken note of in the matter of conducting the selection in terms of Table 3A of Appendix II and that the online application format provided to the candidates did not contain provision for uploading the pre-doctoral teaching experience. Insofar as the appellant is a person who was short-listed for 12 Writ Appeal No.1105 of 2021 interview, according to us, it is unnecessary to go into the said question, for the academic scores made mention of in Table 3A was intended solely for the purpose of short-listing the candidates for interview. 12. What follows from the aforesaid discussion is that in terms of the Regulations, the selection for appointment to the post of Assistant Professor is to be conducted solely based on the interview. As regards the criteria for awarding marks for the interview, the prescription in the Regulations is that a transparent, objective or credible methodology of analysis of the merits and credentials of the applicants shall be adopted having regard to the different parameters based on Appendix II, Tables 1, 2, 3A, 3B, 4 and 5. The relevant provisions in the Regulations read thus: ## **6.0 SELECTION PROCEDURE:** I. The overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the applicants based on the weightage given to the performance of the candidate in different relevant parameters and his/her performance on a grading system proforma, based on Appendix II, Tables 1, 2, 3A, 3B, 4 and 5. 13 Writ Appeal No.1105 of 2021 x x x x x x ## **6.1 Assessment Criteria and Methodology:** (a) Tables 1 to 3 of Appendix II are applicable to the selection of Assistant Professors/Associate Professors/Professors/Senior Professor in Universities and Colleges; **==> picture [81 x 8] intentionally omitted <==** The materials on record indicate that the parameters followed by the Selection Committee for awarding marks for the interview were (1) research, (2) publication, (3) teaching ability and language competence and (4) inter disciplinary and domain knowledge. 13. The main contention raised by the appellant is that the norms for the interview should have been adopted either by the Syndicate of the University or by its Academic Council' and the Vice-Chancellor has no authority to fix the norms. Section 11(1) of the Act specifically empowers the ViceChancellor to exercise the powers of the Syndicate or that of the Academic Council when the Syndicate or the Academic 14 Writ Appeal No.1105 of 2021 Council as the case may be, is not in session, if the ViceChancellor is satisfied that emergency has arisen requiring him to taking immediate action involving the exercise of any of the powers vested in the Syndicate or that of the Academic Council under the Act. Of course, such exercise of powers needs to be reported to the authority concerned at the next session of the Syndicate or that of the Academic Council, as the case may be. The appellant has no case that the Vice-Chancellor could not have fixed the norms for the interview in exercise of the power vested in Section 11(1) of the Act. He has also no case that the Vice-Chancellor has not reported the said action taken by him to the concerned statutory body of the University as provided for in Section 11(1). The contention aforesaid is therefore without any substance. 14. The next contention is that the norms existing as on the date when the process of selection began should have been followed by the Selection Committee and not those prescribed by the Vice-Chancellor after the selection process 15 Writ Appeal No.1105 of 2021 has begun. There is no pleading in the writ petition that norms for awarding marks for the interview have been fixed by the Syndicate or the Academic Council of the University at any time prior to the notification and that the same have been modified by the Vice-Chancellor. In the absence of any case for the appellant that norms have been fixed by the Syndicate or the Academic Council for awarding marks in the interview and the same have been varied to the prejudice of the appellant by the Vice Chancellor, we do not think that there is any merit in the contention that the norms that were adopted by the Selection Committee for the interview were norms fixed by the ViceChancellor after the selection process has begun. True, it was held by the Apex Court in **Mohanan Pillai** _(supra)_ that ordinarily rules which were prevailing at the time when the vacancies arose should be adhered to for the purpose of filling up those vacancies. As noted, in the absence of any case for the appellant that norms different from what was adopted for the interview was prevailing at the time when the selection 16 Writ Appeal No.1105 of 2021 process began, the said decision has no application. **Manjusree** _(supra)_ is a case where the question was whether, in the absence of any prescription in the rules governing the appointment as regards the minimum marks for the interview, a minimum cut off mark for interview could be prescribed after completion of the selection process. The said question was answered by the Apex Court holding that introduction of the requirement of minimum marks for interview after the entire selection process consisting of written examination and interview was completed, would amount to changing of the rules of the game after the game was played and that the same is impermissible. The said decision also has no application to the facts of the present case. 15. Yet another contention advanced by the learned counsel for the appellant was that one of the criteria adopted by the Selection Committee namely, 'inter disciplinary and domain knowledge' is not a criterion that could be adopted in terms of the parameters prescribed in Appendix II. The 17 Writ Appeal No.1105 of 2021 criterion aforesaid appears to be one adopted to discern the knowledge of the candidates over the concerned discipline or field of study as also his/her familiarity with the components of other relevant disciplines. On an overall appraisal of the provisions of the Regulations, we are of the view that it cannot be said that such a criterion was alien to the parameters prescribed in Appendix II. In the light of the aforesaid discussion, we do not find any merit in the appeal and the same is, accordingly, dismissed. **Sd/-** **P.B.SURESH KUMAR, JUDGE.** **Sd/-** **C.S.SUDHA, JUDGE.** YKB