Dr. Manzur Ali P.P. v. Kannur University and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943 WP(C) NO. 17394 OF 2020** ## **PETITIONER/S:** DR.MANZUR ALI P.P AGED 45 YEARS S/O.ALI P.O, NEELAMBARI, H.NO. XVI/359, KOTTANAM LANE, THAIKKATTUKARA P O, ALUVA - 6, ERNAKULAM DISTRICT. BY ADV K.V.BHADRA KUMARI ## **RESPONDENT/S:** 1 KANNUR UNIVERSITY REPRESENTED BY ITS REGISTRAR. THAVAKKARA, CIVIL STATION P.O, KANNUR DISTRICT, PIN - 670002, 2 REGISTRAR KANNUR UNIVERSITY, THAVAKKARA, CIVIL STATION (P.O), KANNUR DISTRICT, PIN - 670002. 3 PROF. GOPINATH RAVINDRAN, VICE CHANCELLOR, KANNUR UNIVERSITY(CHAIRPERSON OF THE INTERVIEW BOARD), THAVAKKARA, CIVIL STATION (P.O), KANNUR DISTRICT, PIN - 670002. 4 PROF. CHIMAY K MUKHOPADHYA PROFESSOR, SPECIAL CENTRE FOR MOLECULAR MEDICINE, JAWAHARLAL NEHRU UNIVERSITY, NEW DELHI, PIN - 110067. 5 PROF. A.K MUNIRAJAN, PROFESSOR, DEPARTMENT OF GENETICS, UNIVERSITY OF MADRAS, CHENNAI, TAMIL NADU, PIN - 600113. 6 PROF. INDRANIL DASGUPTA DEPARTMENT OF PLANT MOLECULAR BIOLOGY, UNIVERSITY OF DELHI SOUTH CAMPUS, BENITS JUAREZ ROAD, NEW DELHI - 11027 (DELETED) (RESPONDENT R6 DELETED FROM THE PARTY ARRAY AS PER ORDER **WP(C) NO. 17394 OF 2020** **2** DATED 08.01.2021 IN IA 1/2020 IN WP(C)17394/2020.) 7 DR. K SREEJITH, DEAN , FACULTY OF SCIENCE PROFESSOR, DEPARTMENT OF BIOTECHNOLOGY AND MICRO BIOLOGY, SCHOOL OF LIFE SCIENCE, THALASSERY CAMPUS, PALAYAD, KANNUR DISTRICT - 670661, 8 DR. SOORAJ M BASHEER, ASSOCIATE PROFESSOR, DEPARTMENT OF MOLECULAR BIOLOGY, KANNUR UNIVERSITY, DR.P.K. RAJAN MEMORIAL CAMPUS AT NEELESWARAM, KAZARGODE DISTRICT, PIN - 671314. BY ADVS. SRI.M.SASINDRAN, SC, KANNUR DISTRICT CO.OP. BANK SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SHRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY SHRI.KURUVILLA SABU CHRISTY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.08.2021, THE COURT ON 6.9.2021 DELIVERED THE FOLLOWING: **WP(C) NO. 17394 OF 2020** **3** ## **JUDGMENT** Appointment of respondent No.8 as Associate Professor in the stream of Molecular Biology at the behest of the petitioner, who also participated in the selection proceedings has been assailed on various grounds. 2. The facts in brief are that on 3.10.2019, respondent No.1, Kannur University caused a notification inviting applications to the post of Associate Professor of various departments. One vacancy of Associate Professor in Molecular Biology reserved for Muslim Community was notified. The qualification prescribed for the post of Associate Professor as per the notification was as follows: i) A good academic record, with a Ph.D. Degree in the concerned/allied/relevant disciplines. ii) A master's degree with at least 55% marks (or an equivalent grade in a point-scale, wherever, the grading system is followed) iii) A minimum 8 years of experience of teaching and/or research in an academic/research position equivalent to that of Assistant Professor in a University, College or accredited research Institution/Industry with a minimum of seven publications in the peer-reviewed or UGC-listed journals. ## 3. A minimum of 8 years of teaching experience was **WP(C) NO. 17394 OF 2020** **4** required, whereas the petitioner had 14 ½ years of teaching and the respondent No.8 only had 3 years and 10 months of teaching experience. Interview for the said post was conducted through online on 7.5.2020. The rank list was not published but the petitioner procured the provisional rank list under the Right to Information Act. As per the same, 8[th] respondent got first rank and the petitioner got the 2[nd] rank. The 8[th] respondent is not eligible to apply for the post as he does not possess the teaching experience of eight (8) years or equivalent qualification as stated in Ext.P1 notification. This fact is evident from the personal details of the 8[th] respondent, Ext.P4. The research experience of 4 months 19 days, 6 Months 22 days, 11 Months 30 days, 1 Year 11 Months 30 days, 1 year 2 Months 30 days and 2 Year 5 Month 18 days comes to more than 8 years ie., 9 ½ years, was against the criteria fixed in the qualifications. The information Ext.P7 received under the RTI reveals that Indian Institute of Science, Bangalore Post doctoral positions at Indian Institute of Science was not equivalent to Assistant Professor in a University or **WP(C) NO. 17394 OF 2020** **5** college and so the Post doctoral fellowship as evidenced from R8(a) would not be equivalent. Ext.P8 also reveals that the UGC Kothari Post Doctoral fellowship was also a research based programme with not any teaching obligations and as per UGC guidelines, it was not equivalent to Assistant Professorship. Similarly, Ext.P10 reveals that in French Universities, a post doctoral fellowship position is not equivalent to an Assistant Professor. Therefore Exts.R8(e) and R8(f) placed on record by the respondent were irrelevant. As far as the non qualification of the petitioner alleged by the respondent had been countered in the reply affidavit by averring that the publication of journal namely 'Advanced Biotech' was stopped in the year 2018 and approval by the UGC is wholly incorrect. In fact as per Ext.P11, the journal aforementioned is listed at Sl.No.480 approved by the UGC. 4. The rank list, Ext.P3 is a provisional one and the appointment of the 8[th] respondent is without verification of the certificates. Hence the appointment of 8[th] respondent as Associate Professor, in the Department of Molecular Biology is **WP(C) NO. 17394 OF 2020** **6** absolutely illegal, arbitrary and liable to be set aside. 5. On the other hand, counsel representing the 8[th] respondent opposed the maintainability of the writ petition on the premise that the scope of judicial review by considering the merit of the candidate would not result into vitiation and it is not open for the scrutiny of the High Court, as it is in the domain of an experts which is lacked by this Court. 6. It is settled law that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection as culled out in the judgments reported in _**Dalpat Abasaheb Solunke and Others v. Dr.B.S Mahajan and Others [(1990) 1 SCC 305**_ **]** and _**D.Sarojakumari v. R.Helen Thilakom and Others (2017) 9 SCC 478**_ . The qualification as prescribed not only provided teaching experience but research as well which the respondent possessed as detailed in para 5 of the counter affidavit supported by Exts.R8(a) to R8(f). By calculating the period of research and teaching experience, respondent No.8 fulfilled **WP(C) NO. 17394 OF 2020** **7** the qualification; it is the domain of the selection committee to accept the documents and award marks. Petitioner after having remained unsuccessful, cannot turn around and challenge the entire selection process and urge this Court for dismissal of the writ petition. 7. I have heard the learned counsel for the parties and appraised the paper book. In the judgment cited _**Dalpat Abasaheb Solunke**_ (supra) in paragraph 12 and 13, it was observed as under: _12. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the Candida tes. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the Constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called_ **WP(C) NO. 17394 OF 2020** **8** _comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its juris diction._ 13. _The fourth and the last ground given by the High Court to set aside the appointment of the appellant in CA No. 3507/89 is that the fourth and the fifth respondents to the Writ Petition were guides of the appellant when he was doing his M.Sc. by Research. We are unable to understand as to how the fact that they were his guides when the appellant was doing his M.Sc. would influence their decision in selecting him, or vitiate the selection made. They must have been guides to many who had appeared for the interview. As senior teachers in the Faculty in question, it is one of their duties to guide the students. In fact, very often the experts on the selection Committees have to be drawn from the teaching faculty and most of them have to interview candidates who were at one or the other time their students. That cannot disqualify them from being the members of the Selection Committees. In fact, as stated by the 4th respondent in his affidavit before the High Court, even the 2nd respondent, the aggrieved candidate was also his student. Curiously enough the High Court has discarded the said fact by observing that in point of time, the appellant was closer to the 4th respondent as a student since the appellant was his student at a later date. It is not necessary to comment further on this reasoning._ ## 8. Paragraphs 10 to 12 of the judgment ## _**D.Sarojakumari** (supra)_ reads thus: _10. The Kerala High Court did not note the above mentioned judgments and ignored the well settled position of law in rejecting the specific plea raised by the appellant herein that the appellant could not raise the issue that no direct recruitment should have been conducted once she had applied for and taken part in the selection process by direct recruitment._ _11. As far as the present case is concerned an advertisement was issued by Respondent No.6 inviting applications for the post of Music Teacher in Samuel LMS High School. Respondent No.1 did not raise any objection at that stage that the post could not be filled in by direct recruitment and_ **WP(C) NO. 17394 OF 2020** **9** _she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court. In view of this we need not go into the other issues raised._ _12. We, therefore, allow these appeals and set aside order dated 25.07.2003 of the learned Single Judge and dismiss the writ petition O.P.No.36563 of 2002 as being not maintainable._ The present case is of similar nature where the petitioner had participated in the selection process, pursuant to the submission of the application for appointment of Associate Professor in Molecular Biology. This Court cannot assume the role of an expert committee, possessing acumen in assessing the documents fulfilling the criteria fixed for selection. Advertisement did not specify that the research undertaken at various institutions as referred to in the counter and repelled by the petitioner was to be recognized. In fact the documents as referred to in the counter; Exts.R8(a) to R8(f) are the testimony to the same. I do not find any justification in causing interference in **WP(C) NO. 17394 OF 2020** **10** the selection process of respondent No.8. There is no merit in the writ petition and is accordingly dismissed. Sd/- sab **AMIT RAWAL JUDGE** **WP(C) NO. 17394 OF 2020** **11** ## **APPENDIX OF WP(C) 17394/2020** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION DATED 3.01.2019 ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P2 TRUE COPY OF THE PERSONAL DETAILS OF THE PETITIONER SUBMITTED BEFORE THE 1ST RESPONDENT UNIVERSITY. - EXHIBIT P3 TRUE COPY OF THE PROVISIONAL RANK LIST OF THE CANDIDATES FOR VARIOUS TEACHING POSTS IN THE UNIVERSITY. - EXHIBIT P4 TRUE COPY OF THE PERSONAL DETAILS SUBMITTED BY THE 8TH RESPONDENT ALONG WITH THE APPLICATION RECEIVED BY THE PETITIONER UNDER THE R.T.I ACT. - EXHIBIT P5 TRUE COPY OF THE INFORMATION DATED 22.07.2020 ISSUED BY THE 1ST RESPONDENT UNIVERSITY UNDER THE R.T.I. ACT, ALONG WITH THE APPLICATION BY THE PETITIONER. - EXHIBIT P6 THE ONLINE INTERVIEW CONDUCTED BY THE INTERVIEW BOARD WHICH IS RECEIVED BY THE PETITIONER IN HIS SKYPE AND KEPT IN THE C.D. - EXHIBIT P7 TRUE COPY OF THE RTI ONLINE INFORMATION GIVEN BY THE INDIAN INSTITUTE OF SCIECNE, BANGALORE DATED 28/10/2020. - EXHIBIT P8 TRUE COPY OF THE RTI ONLINE INFORMATION ISSUED BY UGC DATED 28/10/2020. - EXHIBIT P9 TRUE COPY OF THE INFORMATION RECEIVED UNDER THE RTI ACT FROM THE COCHIN UNIVERSITY DATED 17/8/2020. **WP(C) NO. 17394 OF 2020** **12** EXHIBIT P10 TRUE COPY OF THE INFORMATION RECEIVED REGARDING THE POST DOCTORAL FELLOWSHIP IN FRENCH UNIVERSITIES, DATED 17/9/2020. RESPONDENT EXHIBITS - EXHIBIT R8(a):. TRUE COPY OF CERTIFICATE DATED 24/12/2008. EXHIBIT R8(b): TRUE COPY OF WORK CONTRACT IN THIS REGARD (WHICH IS IN FRENCH) ALONG WITH ITS FREE ENGLISH TRANSLATION. - EXHIBIT R8(c):. TRUE COPY OF THE WORK CONTRACT IN THIS REGARD (WHICH IS IN FRENCH) ALONG WITH ITS FREE ENGLISH TRANSLATION. - EXHIBIT R8(d): TRUE COPY OF THE WORK CONTRACT IN THIS REGARD (WHICH IS IN FRENCH) ALONG WITH ITS FREE ENGLISH TRANSLATION. - EXHIBIT R8(e): TRUE COPY OF THE ORDER NO.NIL DATED 04/08/2015 OF DR.PRAMOD KUMAR PRASAD, SCIENTIST C, SERB (SCIENCE AND ENGINEERING RESEARCH BOARD). - EXHIBIT R8(f): TRUE COPY OF THE CERTIFICATE NO.MBU/SMB/2017 DATED 25/05/2017 OF THE CHAIRMAN, INDIAN INSTITUTE OF SCIENCE, BANGLORE. - EXHIBIT R8(g): TRUE COPY OF THE PRINT OUT WITH REGARD TO THE UGC LISTED PUBLICATIONS OF THE PETITIONER. - EXHIBIT R8(h): TRUE COPY OF THE PRINT OUT WITH REGARD TO THE UGC LISTED PUBLICATIONS OF THE PETITIONER. - EXHIBIT R8(i): TRUE COPY OF THE RELEVANT EXTRACT OF THE UGC REGULATIONS, 2018. - EXHIBIT R8(j): TRUE COPY OF THE LETTER NO.AC.B3/RTI/2020- **WP(C) NO. 17394 OF 2020** **13** 21 DATED 16/10/2020. EXHIBIT R8(k): TRUE COPY OF THE RTI APPLICATION DATED 22/09/2020. EXHIBIT R8(l): TRUE COPY OF THE REFERENCE LETTER DATED 10/05/2013. EXHIBIT R8(m): TRUE COPY OF THE REFERENCE LETTER DATED 16/05/2013. EXHIBIT R2 A A TRUE COPY OF THE ORDER CONSTITUTING THE INTERVIEW BOARD EXHIBIT R2 B A TRUE COPY OF THE SCORE SHEET ISSUED BY THE SELECTION COMMITTEE.