DR. HAREESH N. RAMANATHAN v. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942** ## **WP(C).No.1088 OF 2020(I)** ## **- PETITIONER :** **DR.HAREESH N.RAMANATHAN, VYSHAKH, NFARA 10, NORTH FORT, TRIPUNITHURA, KOCHI - 682 301.** **BY ADVS. SRI.P.RAMAKRISHNAN SMT.PREETHI RAMAKRISHNAN (P-212) SRI.T.C.KRISHNA SRI.C.ANIL KUMAR SMT.ASHA K.SHENOY SRI.PRATAP ABRAHAM VARGHESE** **- RESPONDENTS :** **1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY KALAMASSERY, KOCHI - 682 022, REPRESENTED BY ITS REGISTRAR.** **2 THE SELECTION COMMITTEE FOR RECRUITMENT OF ASSOCIATE PROFESSOR (GENERAL MANAGEMENT) COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KALAMASSERY, KOCHI - 682 022.** **BY SRI.S.P.ARAVINDAKSHAN PILLAI, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-09-2020, THE COURT ON 30-09-2020 DELIVERED THE FOLLOWING:** WP(C).No.1088 OF 2020(I) -: 2 :- ## **JUDGMENT** ## **Dated this the 30th day of September 2020** This writ petition is filed seeking the following reliefs :- - “a) A writ of certiorari or any other appropriate writ or order quashing and setting aside Exhibit P10 to the extent it applies to the post of Associate Professor – General Management. - b) Declare that the cut off mark of 60 fixed for selection to the post of Associate Professor – General Management held pursuant to Exhibits P1 and P3 is arbitrary and illegal. - c) A writ of mandamus or any other appropriate writ or order directing the respondents to draw up a rank list on the basis of the marks awarded during the selection to the post of Associate Professor – General Management evinced by Exhibit P7. - d) Issue a writ of mandamus or any other appropriate writ or order directing the respondents to award points to the petitioner in terms of Exhibit P4 PBAS data sheet as also to evaluate his teaching skills with reference to the PBAS data sheet and to award marks and publish the rank for the port of Associate Professor – General Management.” 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the University. 3. The petitioner was a candidate in the selection to the post of Associate Professor – General Management held pursuant to Ext.P1 notification. He has scored the highest mark of 58.61 in the selection. The selection committee cancelled the WP(C).No.1088 OF 2020(I) -: 3 :- selection on the ground that none of the candidates has secured the cut off mark of 60%. The contention of the petitioner is that the cut off marks were not fixed before the selection process had commenced and was not even fixed before the conduct of the interview. The re-notification of the post by Ext.P10 is also under challenge. It is submitted that the petitioner has not obtained the eligible marks in the PBAS data sheet and that he was granted only lesser marks for research paper in referred journals and research publications. It is stated that petitioner was awarded only minimal marks for teaching skills and interview and that the same Selection Committee which held interview for the post of Associate Professor – Finance Management had granted 15 marks for interview and 8 marks for teaching skills to the selected candidate. 4. Relying on the decisions of the Apex Court reported in **K. Manjusree** v. **State of Andhra Pradesh and another** [(2008)3 SCC 512], **Hemani Malhotra** v. **High Court of Delhi** [(2008) 7 SCC 11] and **Barot Vijaykumar Balakrishna and others** v. **Modh Vinaykumar Dasrathlal and others** [(2011) 7 SCC 308], the learned counsel for the petitioner submits that the selection criteria are liable to be prescribed in advance and any WP(C).No.1088 OF 2020(I) -: 4 :- change effected at a later stage in the selection process vitiates the selection. It is submitted that if at all there is any change in the selection criteria, all the candidates are liable to be informed of such changes and that the selection will be conducted in accordance with the changed rules. Reliance is also placed on a decision of a Division Bench of this Court in **Dr. S. Ajayan** v. **State of Kerala and others** [2006 KHC 1022] to contend that the Public Service Commission was incompetent to fix cut off marks in the written examination or oral interview if the same is not prescribed in the Rules. It was held by this Court that if cut off marks are to be made applicable, the same should be prescribed in the notification. 5. A counter affidavit has been placed on record by the 1[st] respondent. It is specifically stated that the interview for the post of Associate Professor – General Management was conducted on 24.10.2019. It is stated that the Selection Committee specifically did not recommend any of the candidates for appointment since none of the candidates who appeared for the interview could secure the minimum cut off mark fixed by the Selection Committee, that is, 60 marks. It is stated that though the petitioner had scored the highest mark, his score was WP(C).No.1088 OF 2020(I) -: 5 :- only 58.61 and did not meet the cut off mark fixed by the Selection Committee. It is stated that the Selection Committee had, after conduct of the interview, observed that the candidates who attended the interview lacked sound knowledge of basics. 6. The recommendations of the Selection Committee have been produced as Ext.R1(a) and the consolidated mark sheet is produced as Ext.R1(b). It is stated that the petitioner had scored only 10 marks out of 20 for academic qualification, 25.61 marks out of 40 for research publications and academic activities and 10 marks for assessment of domain knowledge. It is stated that he had scored only very low marks in the assessment of teaching skills and interview, that is, 4 marks out of 10 and 9 marks out of 20 respectively. It is stated that Ext.R1(c) revised PBAS format specifically stated that the candidates who have scored less than 45% marks shall not be ranked. However, it was further provided that the respective Selection Committee can fix a higher cut off mark for preparing the rank list. It is submitted that Ext.R1(d) UGC Maintenance of Standards in Higher Education (2[nd] Amendment) Regulations 2013 also permitted Selection Committee to fix cut off marks while conducting selection. It is further stated that the WP(C).No.1088 OF 2020(I) -: 6 :- petitioner, having participated in a selection knowing of the entire procedure, cannot turn around and challenge the selection once he failed to obtain the minimum cut off marks. Relying on Exts.R1(e) to R1(h), it is submitted that the respective Selection Committees had been empowered to fix cut off marks taking note of the requirements of the post in question. It is further submitted at paragraph 18 of the counter affidavit as follows :- “18. It is submitted that the University conducted the selection to the post of Associate Professor – General Management (Open) strictly following the guidelines prescribed by the UGC. The University adheres to the PBAS format prepared based on UGC guidelines and approved by the Syndicate of the University for conducting selection to the post for which the petitioner participated in the interview. The petitioner was not ranked by the Selection Committee as he failed to obtain the minimum cut off marks fixed by the Selection Committee. The Selection Committee, after assessing his performance did not recommend the petitioner for inclusion in the rank list. The petitioner has no allegations against the constitution of the Selection Committee. There are also no allegations of malafides. A validly constituted Selection Committee exercising its power as per the Regulations had fixed the cut off marks, assessed and interviewed the petitioner and decided not to recommend him for inclusion in the rank list. Therefore, any challenge against the same is unsustainable. In fact, the Selection Committee did not recommend any of the candidates for inclusion in the rank list. Considering the nature WP(C).No.1088 OF 2020(I) -: 7 :- of duties of the post fixation of 60 as the cut off mark cannot be said to be arbitrary or unreasonable. The experts in the selection committee consisted of eminent academicians from IIM Calicut, I.I, Sc Bangalore, IIT Madras and National Institute of Industrial Engineering, Mumbai; The Apex Court in “National Institute of MHNS Vs Kalyanaraman 1992 Supp (2) SCC 481 ruled that “where the Selection Committee consisted of experts in the subject, men of high status, the court should be slow to interfere with their opinion.” 7. The learned counsel also placed reliance on a decision of a Division Bench of this Court in **National Institute of Mental Health and Neuro Sciences** v. **Dr. K. Kalyana Raman and others** [1992 KHC 677] to contend that the function of the Selection Committee is purely administrative and that no reasons are liable to be given by the Selection Committee for assessment of relative merits of candidate. The decision of a Full Bench of this Court in **Ravidas M. and another** v. **Kerala Public Service Commission and others** [2009 (2) KHC 10], where the procedure of the Kerala Public Service Commission preparing shortlist of candidates based on circulars issued by it was held to be proper and would not amount to abridging of any of the rights of the candidates since it applied equally to all. WP(C).No.1088 OF 2020(I) -: 8 :- 8. An unreported decision of a Division Bench of this Court in W.A. No.2132 of 2019 rendered on 18.11.2019 is also relied on. The Division Bench, after considering an almost identical factual situation had held that this Court can interfere in selection conducted by Universities through a Selection Committee only if there is illegality or malafides. It was held that unless it is established that the action of the University is wrongful and willful, without reasonable or probable cause, no legal malice can be attributed. The Division Bench further held on facts as follows :- “.............. In the minutes which has been produced as Ext.R1(a), the Committee has unanimously observed that the performance of all the 3 candidates were below average in respect of quality of research, competence of teaching, interview performance and academic leadership. When such being the finding of the Selection Committee, we do not think that the learned Single Judge was justified in arriving at a conclusion that when cut off marks have not been fixed for the interview or skill test, the recommendation of the Selection Committee is bad in law.” 9. I have considered the contentions advanced on all sides. The main contention of the petitioner is that the cut off marks of 60% was not fixed before the interview and that the same was not made known to the candidates. The Apex Court, WP(C).No.1088 OF 2020(I) -: 9 :- in the decisions relied upon by the learned counsel for the respondents, has held that where rules do not prescribe any procedure, the Selection Committee is free to prescribe minimum marks. However, if Selection Committee is to prescribe the minimum marks for the interview, it should be done before the commencement of the selection process. 10. The Apex Court in **K. Manjusree's case** cited supra had held that selection criteria are to be prescribed in advance and that rules of the game cannot be changed midway through a selection process. The challenge in that case was with regard to the fixing of minimum qualifying marks for the written test and the interview. The ratio of marks was changed after the selection procedure had started without intimation to the candidates. In **Hemani Malhotra's case** cited supra, relying on the same principle, the Apex Court held that the rule making authority can prescribe the minimum marks both for written examination and viva voce. However, if minimum marks are not prescribed for viva voce before commencement of the selection process, the authority cannot, either during the selection process or after the selection process, add an additional minimum required qualification. In **Barot Vijaykumar** WP(C).No.1088 OF 2020(I) -: 10 :- **Balakrishna and others** cited supra, the Apex Court held that the cut off marks for the viva voce being absent in the notification calling for applications, the selection ought to have been either conducted without any cut off marks for viva voce or after fixing such cut off marks and re-notifying the candidates. The Division Bench of this Court in **Dr. S. Ajayan's case** cited supra held that in the absence of any provision for cut off marks in the written examination or oral interview in the rules, the Kerala Public Service Commission would not be competent to prescribe such cut off marks. The correctness of the decision of the Division Bench in **Dr. S. Ajayan's case** was doubted by another Division Bench and the issue was referred to the Full Bench. The decision in **Indulekha** v. **State of Kerala** [2001 (1) KLT 951] was thought to be in direct conflict with **Dr. S. Ajayan's case.** Settling the dispute, the Full Bench held that if the Public Service Commission prepares a shortlist of candidates based on the circulars issued by it with regard to the number of candidates liable to be included therein, the procedure cannot be said to be illegal or improper so long as the procedure is transparent and fair. WP(C).No.1088 OF 2020(I) -: 11 :- 11. Having considered the contentions and the factual aspects, I find that the decisions relied on by the learned counsel for the petitioner are with regard to change of criteria or procedure after a selection process has commenced. The Full Bench in **Ravidas M. and another** v. **Kerala Public Service Commission and others** [2009 (2) KHC 10], after considering the provisions of the Public Service Commission Rules of Procedures, 1976 (Kerala) and the circulars, held that a shortlisting of candidates on the basis of clear criteria is permissible. In the instant case, separate marks had been fixed for interview and for the separate heads as provided in the selection guidelines. The dispute here is with regard to the fixing of an aggregate cut off mark for being appointed pursuant to a selection. In the instant case, the only contention is that the fixing of the total cut off mark of 60% was not done before the interview commenced. Having considered the recent decision of the Division Bench of this Court where the said issue has been pointedly considered, I am of the opinion that the contention that the cut off mark of 60% was not fixed before the selection commenced cannot be a ground to invalidate the selection. Ext.P4 produced by the petitioner would itself show that the WP(C).No.1088 OF 2020(I) -: 12 :- Selection Committees had been given the power to fix a cut off mark for preparing the rank list. This apparently refers to the aggregate cut off mark required to be declared fit for selection to the post. 12. In an identical situation, the Division Bench held that unless it is possible for the petitioner to establish that the action of the University is wrongful and willful, without reasonable or probable cause, one cannot attribute legal malice. It was further held that the fact that a person scored the highest marks in a selection does not enable him to get the appointment in so far as the Selection Committee had not recommended him for the post. It was found that where the Selection Committee had unanimously observed that the performance of the candidates were below average, the learned Single Judge was not justified in arriving at a conclusion that when cut off marks have not been fixed for the interview or skill test, the recommendation of the Selection Committee was bad in law. 13. The decision of the Selection Committee in the instant case as revealed from Ext.R1(a) is to the effect that all the candidates lack sound knowledge of basics. The decision of the Selection Committee is not to rank any of the candidates as none WP(C).No.1088 OF 2020(I) -: 13 :- of them have achieved the cut off marks fixed by the Selection Committee. Even if the argument raised by the learned counsel for the petitioner that the cut off marks were not fixed before the interview is accepted, I am of the opinion that unless there is contention that the selection was vitiated by malafides, the decision of the Selection Committee cannot be assailed by a participant in the selection process on that ground. 14. With regard to the further contention of the petitioner that the respondents are liable to award marks in terms of Ext.P4 PBAS data sheet and that in case such marks are awarded, the petitioner would be entitled for appointment, I am of the opinion that this Court would not be justified in embarking on an examination of the subjective assessment made by a duly constituted Selection Committee. In the above view of the matter, I am of the opinion that the prayers sought for in the writ petition cannot be granted. The writ petition fails and the same is, accordingly, dismissed. **Sd/ANU SIVARAMAN JUDGE** Jvt/24.9.2020 WP(C).No.1088 OF 2020(I) ## -: 14 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF NOTIFICATION DATED 17.8.2015 ISSUED BY THE IST RESPONDENT COCHIN UNIVERSITY.** - **EXHIBIT P2 TRUE COPY OF APPLICATION FOR FACULTY POSITION SUBMITTED BY THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF MEMO DATED 9.10.2019 RECEIVED BY THE PETITIONER FROM THE IST RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF PBAS DATA SHEET WITHT EHSELFADDRESSED POINTS SUBMITTED BY THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF APPLICATION DATED 19.11.2019 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P6 TRUE COPY OF REPLY DATED 18.12.2019 ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE IST RESPONDENT UNIVERSITY.** - **EXHIBIT P7 TRUE COPY OF CONSOLIDATED MARK SHEET FOR THE POST OF ASSOCIATE PROFESSOR, GENERAL MANAGEMENT RECEIVED BY THE PETITIONER.** - **EXHIBIT P8 TRUE COPY OF PBAS DATA SHEET IN THE NAME OF THE PETITIONER.** - **EXHIBIT P9 TRUE COPY OF JUDGMENT DATED 28.1.2018 IN WPC NO.19465/2018.** - **EXHIBIT P10 TRUE COPY OF NOTIFICATION DATED 26.12.2019 ISSUED BY THE IST RESPONDENT.** - **EXHIBIT P11 TRUE COPY OF THE REPLY DATED 23.01.2020 RECEIVED UNDER THE RIGH TO INFORMATION ACT FROM THE 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** - **EXHIBIT R1(a) TRUE COPY OF THE RECOMMENDATIONS OF THE SELECTION COMMITTEE FOR SELECTION TO THE POST OF ASSOCIATE PROFESSOR GENERAL MANAGEMENT (OPEN).** - **EXHIBIT R1(b) TRUE COPY OF THE CONSOLIDATED MARK SHEET.** WP(C).No.1088 OF 2020(I) -: 15 :- **EXHIBIT R1(c) TRUE COPY OF THE UNIVERSITY ORDER NO.AD.D2/UGC.REG.2010/CAS/2012 DATED 29/06/2016 ALONG WITH THE APPROVED PBAS FORMAT FOR ASSOCIATE PROFSSOR (APPLICABLE FOR FACULTY OF SOCIAL SCIENCES).** **EXHIBIT R1(d) TRUE COPY OF THE RELEVANT PAGES OF GAZETTE NOTIFICATION NO.F1-2/2009 (EC/PS) V(i) VOL.II DATED 13/06/2013.** - **EXHIBIT R1(e) TRUE COPY OF THE RECOMMENDATIONS OF THE SELECTION COMMITTEE FOR SELECTION TO THE POST OF ASSOCIATE PROFESSOR FINANCE MANAGEMENT** - **EXHIBIT R1(f) TRUE COPY OF THE RECOMMENDATIONS OF THE SELECTION COMMITTEE FOR SELECTION TO THE POST OF ASSOCIATE PROFESSOR DISTRIBUTED COMPUTING.** - **EXHIBIT R1(g) TRUE COPY OF THE RECOMMENDATIONS OF THE SELECTION COMMITTEE FOR SELECTION TO THE POST OF ASSOCIATE PROFESSOR (HINDI).** - **EXHIBIT R1(h) TRUE COPY OF THE RECOMMENDATIONS OF THE SELECTION COMMITTEE FOR SELECTION TO THE POST OF ASSOCIATE PROFESSOR ALGORITHM/CRYPTOGRAPHY.** **EXHIBIT R1(i) TRUE COPY OF THE MARK SHEET FOR ASSESSMENT OF TEACHING SKILLS OF THE SELECTION TO THE POST OF ASSOCIATE PROFESSOR GENERAL MANAGEMENT (OPEN).** //TRUE COPY// P.A. TO JUDGE