Dr. Midhun M. AreekOm v. Cochin University of Science and Technology and Others (WA No. 6/2019; WA No. 139/2019; WA No. 151/2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **WA.No.6 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 11281/2016(I) OF HIGH COURT OF KERALA** ## **APPELLANT/3RD RESPONDENT:** **DR.MIDHUN M. AGED 30 YEARS AREEKAM VEETTIL, KAVIL P.O., NADUVANNUR VIA, KOZHIKODE- 673614.** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1, 2 AND 4:** - **1 DR.VENU G.NAIR, KARTHIKA, GTWRA-9, THRIKKANNAPURAM TEMPLE ROAD, EDAPPALLY P.O, KOCHI- 682024.** - **2 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, (CUSAT), REPRESENTED BY ITS REGISTRAR, CUSAT CAMPUS, KOCHI UNIVERSITY P.O., KOCHI- 682022.** - **3 DR. ABHILASH S., ASSISTANT PROFESSOR IN METEOROLOGY, DEPARTMENT OF ATMOSPHERIC SCIENCES, SCHOOL OF MARINE SCIENCES, FINE ARTS AVENUE, COCHIN UNIVERSITY OF** WA Nos.6, 139 & 151/2019 -:2:- **SCIENCE AND TECHNOLOGY (CUSAT), KOCHI- 682016.** **4 THE UNIVERSITY GRANT COMMISSION, REPRESENTED BY ITS SECRETARY, BHADUR SHAH, SAFA MARG, NIW DELHI- 110002.** **R1 BY ADV. SRI.SHYAM KRISHNAN R2 BY SRI.S.P.ARAVINDAKSHAN PILLAI, SC, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY R3 BY ADV. VAKKOM.N.VIJAYAN(BY ORDER) R4 BY SRI.S.KRISHNAMOORTHY, CGC** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-012020, ALONG WITH WA.139/2019, WA.151/2019, THE COURT ON 0502-2020 DELIVERED THE FOLLOWING:** WA Nos.6, 139 & 151/2019 -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **WA.No.139 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 11281/2016(I) OF HIGH COURT OF KERALA** ## **APPELLANT/2ND RESPONDENT IN THE WP(C):** **DR.ABHILASH.S. AGED 40 YEARS** **ASSISTANT PROFESSOR IN METEOROLOGY, DEPARTMENT OF ATMOSPHERIC SCIENCES, SCHOOL OF MARINE SCIENCES, FINE ARTS AVENUE, COCHIN UNIVERSITY.P.O., KOCHI-682022.** **BY ADVS. SRI.P.CHANDRASEKHAR SRI.K.ARJUN VENUGOPAL SMT.V.A.HARITHA SRI.SIDHARTH B PRASAD SRI.R.NANDAGOPAL SRI.D.SREEKANTH** ## **RESPONDENTS/PETITIONER IN THE WP(C)/RESPONDENTS 1, 3 AND 4 IN THE WP(C):** **1 DR.VENU.G.NAIR, KARTHIKA, GTWRA-9, THIKKANANAPURAM TEMPLE ROAD, EDAPPALLY.P.O., KOCHI-682024.** - **2 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY (CUSAT), REPRESENTED BY ITS REGISTRAR CUSAT CAMPUS, KOCHI UNIVERSITY.P.O.,** WA Nos.6, 139 & 151/2019 -:4:- - **KOCHI-682022.** - **3 DR.MITHUN M., AREEKOM VEETTIL, KAVIL.P.O., NADAVNNUR VIA, KOZHIKODE, PIN-673614.** - **4 THE UNIVERSITY OF GRANT COMMISSION, REPRESENTED BY ITS SECRETARY, BHADUR SHAH SAFAR MARG, NEW DELHI-110002. R1 BY ADV. SRI SHYAM KRISHNAN F R2 BY ADV. S.P ARAVINDAKSHAN PILLAI R3 BY ADV. SRI.NISHA GEORGE FOR R4 BY SRI.S.KRISHNAMOORTHY, CGC** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-012020, ALONG WITH WA.6/2019, WA.151/2019, THE COURT ON 0502-2020 DELIVERED THE FOLLOWING:** WA Nos.6, 139 & 151/2019 -:5:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941** ## **WA.No.151 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 11281/2016(I) OF HIGH COURT OF KERALA** ## **APPELLANT/1ST RESPONDENT:** **COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY (CUSAT)** **REPRESENTED BY ITS REGISTRAR, CUSAT CAMPUS, COCHIN UNIVERSITY.P.O., KOCHI-682022.** **BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY** ## **RESPONDENTS/PETITIONER & RESPONDENTS 2 TO 4:** **1 DR.VENU G. NAIR KARTHIKA, GTWRA-9, THRIKKANANAPURAM TEMPLE ROAD, EDAPPALLY.P.O., KOCHI-682024. 2 DR.ABHILASH.S. ASSISTANT PROFESSOR IN METEOROLOGY, DEPARTMENT OF ATMOSPHERIC SCIENCE, SCHOOL OF MARINE SCIENCES, FINE ARTS AVENUE, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY(CUSAT), KOCHI-682016.** - **3 DR.MIDHUN.M. AREEKOM VEETTIL, KAVIL.P.O., NADAVANNUR VIAL, KOZHIKODE, PIN-673614.** - **4 THE UNIVERSITY GRANT COMMISSION** WA Nos.6, 139 & 151/2019 -:6:- **REPRESENTED BY ITS SECRETARY, BHADUR SHAH SAFAR MARG, NEW DELHI-110002.** **R1 BY ADV. SHYAM KRISHNAN R2 BY ADV. CHANDRASEKHAR R3 BY ADV. NISHA GEORGE R4 BY SRI.S.KRISHNAMOORTHY, CGC** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-012020, ALONG WITH WA.6/2019, WA.139/2019, THE COURT ON 0502-2020 DELIVERED THE FOLLOWING:** WA Nos.6, 139 & 151/2019 -:7:- ## **J U D G M E N T** Dated this the 5[th] day of February, 2020 ## _**Shaffique, J.**_ All these appeals have arisen from judgment dated 26/11/2018 in WP(C) No. 11281/2016 of the learned Single Judge. WA No.151/2019 has been filed by the 1[st] respondent, WA No. No.139/19 by the 2[nd] respondent and WA No.6/2019 has been filed by the 3[rd] respondent 2. The short facts of the case are as under and the parties are described as shown in the writ petition unless otherwise stated. The Cochin University of Science and Technology (CUSAT) invited applications for appointment to the post of Assistant Professor in the year 2009 as per notification dated 11/2/2009. An interview was held on 11/2/2016 and the petitioner was ranked 3[rd] in the order of merit. Ext.P2 is the ranked list dated 22/2/2016. The contention urged by the petitioner is that the selection was not conducted in accordance with the procedure prescribed by the University Grants Commission (UGC). It was contended that as per the Regulations, the marks for academic record and research performance was to WA Nos.6, 139 & 151/2019 -:8:- be 50%, 30% should be allocated to assessment of domain knowledge and teaching skills and 20% for the interview. However, the Selection Committee while evaluating the candidates had tinkered upon the assessment of domain knowledge and teaching skills and 15% of marks were given to assessment of domain knowledge and 15% to teaching skills and thereby fixed a different criteria for selection which according to him is contrary to the UGC Guidelines. He also contended that he was entitled for 9 points taking into account his teaching experience whereas he was granted only 6 points. Petitioner therefore challenged Ext.P2 ranked list and prayed for a further direction to the University to publish fresh notification for selection to the aforesaid post. 3. In the counter affidavit filed on behalf of the 1[st] respondent, CUSAT, it is _inter alia_ stated that petitioner got only 11 marks for evaluation of teaching skill whereas the 2[nd] respondent got 14 marks. In respect of teaching experience, petitioner got 6 marks and 2[nd] respondent only 0.5 marks. It is stated that the 2[nd] respondent had outnumbered the petitioner in the case of publications. It is taking into account all the WA Nos.6, 139 & 151/2019 -:9:- parameters that the Selection Committee had evaluated the candidates. It is further stated that the marks were rightly awarded for his 3 years' experience in the Post Graduate level. The period he worked coincides with the period he worked as Research Scholar in which he was given 9 marks under para 2.2(a) and his research experience after Ph.D includes the said period also. It is stated that petitioner himself had verified the same and agreed to the same and having signed it, he cannot take a different approach in the matter. 4. Additional counter affidavit had been filed to the amended writ petition wherein it is stated that the format of Performance Based Appraisal System (PBAS) sheet adopted in the University contains assessment of domain knowledge and teaching skills splitting it into four variable categories. The format for faculty recruitment in the University is designed in accordance with the UGC Regulations by a Committee consisting of all Deans of faculties in the University and the same has been adopted and implemented in the University with the approval of statutory bodies such as Academic Councils and Syndicate. It is further pointed out that as per the PBAS evaluation followed in the WA Nos.6, 139 & 151/2019 -:10:- University, maximum points under assessment of domain knowledge and teaching skills is 30, which was bifurcated and for domain knowledge 15 marks is provided and since assessment of teaching skill is part of it, maximum of 15 points is provided. 5. The learned Single Judge while evaluating the aforesaid contentions observed that the University had failed to comply with the UGC Regulation especially regarding domain knowledge in the proper perspective. It was held that the assessment of the candidate for presentation and awarding 15 marks for such assessment is illegal. If such an assessment is made, it will be over and above the maximum marks to be given to the third head of interview performance. In so far as the UGC Regulations stipulate only 20 points for interview performance and the University had failed to comply with the said stipulation especially by redistributing the maximum 30 points under the category of assessment of domain knowledge and teaching skills to various sub categories, it requires reconsideration and accordingly issued the direction aforesaid. 6. We heard the learned counsel appearing on behalf of the appellants and learned counsel appearing on behalf of the WA Nos.6, 139 & 151/2019 -:11:- petitioner/private respondent. 7. None of the appellants have any dispute about the fact that the Selection Committee will have to assess the performance of the candidates based on three parameters and with reference to the post of Assistant Professor, what is to be evaluated is (a) Academic Record and Research Performance (50%) (b) Assessment of Domain Knowledge and Teaching Skills (30%) and (c) Interview Performance (20%). Ext.P4 is the marks awarded to the petitioner. There is no dispute regarding academic records and research performance. The only dispute is with reference to Assessment of Domain Knowledge and Teaching Skills. The mark sheet would show that the University had apparently bifurcated the assessment of domain knowledge and teaching skills as 2.1, 2.2(a) and 2.2(b), which reads as under. |2.1|Teaching Experience (Maximum 10 points)<br>(Credit<br>only<br>to<br>Full-time<br>teaching<br>assignment:Regular/Contract)<br>a. Each year teaching in University PG level –3 years<br>b. Each year teaching in University UG/ College level.<br>c. Each year of Instruction to P.G. Students/Research<br>Scholars in Laboratory Course, after obtaining the<br>minimum educational qualifications for the post.|2 points<br>1 point<br>0.5 points|6| |---|---|---|---| |2.2(a)|Research Experience after Ph.D (Maximum 10<br>points)<br>Each Year Post Doctoral Research 4 yrs 6 m<br>(In the case of Teachers who are also doing research<br>work, their research experience alone will be<br>counted and excess experience, if any, will be|2 points|9| WA Nos.6, 139 & 151/2019 ## -:12:- ||counted under teaching experience-credit of both<br>teaching and research experience will not be<br>awarded concurrently).||| |---|---|---|---| |2.2(b)|Participation<br>in<br>Training<br>Programmes/Workshop/Refresher Courses/Summer<br>Winter-Schools (organized/sponsored by reputed<br>International Organisations, Central/State Govt<br>Institutions) (Maximum 05 points)<br>a. Duration of the course above 4 weeks - 2<br>b. Duration of the Course above 2 weeks and upto 4<br>weeks - 1<br>c. Duration of the Course from 5 days up to 2 weeks<br>- 2|2 points<br>1 point<br>0.5 point|4.0<br>1.0<br>1.0<br>(6.0) 5.0| ||Total of Score for 2.1 and 2.2 limited to a maximum<br>of 15 points.||| Thereafter, teaching skills is separately evaluated and given maximum 15 points as per Clause 2.3 which reads as under; |2.3|Evaluation of Teaching Skills/Presentation including<br>innovation of teaching techniques.<br>The candidate has to give a presentation/lecture and<br>the teaching, communication skills may be assessed<br>by a sub-committee of the board formed with the<br>Chairman & the subject experts|Maximum<br>15 points|11| |---|---|---|---| |8.|||| bifurcated into (i) teaching experience (ii) research experience after Ph.D (iii) participation in training programmes/workshop/refresher courses/ summer winter-schools etc. The maximum that could be given for teaching experience is 10 points, research experience after Ph.D, 10 points and participation in training programme would be 5 points. However, the total score has to be limited to 15 points. The teaching WA Nos.6, 139 & 151/2019 -:13:- experience is further evaluated in terms of teaching in University Post Graduate level, Under Graduate level, instruction to PG students, research scholars etc. In respect of participation in training programmes/workshop etc, the points awarded is based on duration of the course, above 4 weeks, between 2 and 4 weeks and 5 days to 2 weeks. As far as the petitioner is concerned, he got the maximum 15 points for assessment of domain knowledge, and for teaching skills, he got 11. Therefore, as far as assessment of domain knowledge which is bifurcated into three with 15 marks, the petitioner does not have any grievance as he got 15 marks, the maximum, and with reference to teaching skill, he got 11 points. The only question which we may have to consider in the present writ petition is whether there is any illegality on the part of the University in bifurcating the assessment of domain knowledge and teaching skills in the manner presently prescribed. The criteria had been fixed by the Syndicate of the University in the light of the decision taken in their 621[st] meeting held on 21/5/2015. Annexure I to IA No.1/2019 is the said criteria. The Syndicate has taken such a decision based on an order dated 23/6/2014 wherein the Pro-Vice- WA Nos.6, 139 & 151/2019 -:14:- Chancellor was directed to implement the criteria for selection of teachers in the University as per the report submitted by the Syndicate Sub-Committee. The said order dated 23/6/2014 is produced as Annexure II. It is therefore submitted that it is not the Selection Committee of the University who had taken a decision in the matter. The decision to give separate points/marks to different criteria taking into account the factual situation was done and approved by the Syndicate which provides a transparent method of evaluation of candidates. The bifurcation is not made in respect of different criteria, whereas it is done within the parameters involved in assessment of domain knowledge that separate points were specified. When an appointment is made to the post of Assistant Professor, necessarily an evaluation of the teaching skills is very much required and for that purpose, the University felt that assessment of domain knowledge and teaching skills are required to be separately evaluated. Of course, as per the UGC Regulation, assessment of domain knowledge and teaching skills are to be given a maximum of 30 points. There is no change to it, apart from the fact that the assessment criteria has been bifurcated by WA Nos.6, 139 & 151/2019 -:15:- the University as per the directions issued by the Syndicate. We therefore do not find any illegality in the procedure adopted in that regard. According to us, the University has provided a more transparent procedure, within the frame work of UGC Regulations. 9. Learned counsel placed reliance on the judgment in _**Radhakrishnan Pillai. D. (Dr.) v. Travancore Devaswom Board and Others**_ [2016 (2) KHC 119(FB)] in order to emphasise the point that UGC Regulations has to be complied with. There cannot be any dispute about the said fact. But that is not the issue here. The issue here is that the Syndicate of the University had decided to bifurcate the domain knowledge and teaching skills into two and for domain knowledge, few parameters have been specified to give points. Taking into consideration the manner in which such bifurcation has been done and especially when the petitioner obtained maximum points for domain knowledge, he is not at all prejudiced by such an action. 10. Petitioner submits that the rule of the game has been changed at the time of interview. We do not think so. The mark sheets which were given had been verified by the petitioner and WA Nos.6, 139 & 151/2019 -:16:- he had knowledge about it. 11. Though learned counsel for the petitioners had submitted arguments based on various judgments on the point, we do not think it necessary to consider the same especially on account of the fact that no illegality had been committed by the University in conducting the selection process. As far as the marks which are awarded for each category is concerned, those are all issues which the Selection Committee had considered based on the respective parameters and it is not open for this Court to interfere with the same. In the result, we allow the appeals and the judgment of the learned Single Judge is set aside. ## **Sd/-** **A.M.SHAFFIQUE** **JUDGE** Rp **Sd/MARY JOSEPH JUDGE** WA Nos.6, 139 & 151/2019 -:17:- ## **APPENDIX OF WA 6/2019** ## **APPELLANT'S EXHIBITS:** **ANNEXURE I TRUE COPY OF THE ORDER NO.AD.D2/UGC.REG.2010/CAS/2012 DATED 23.05.2015 PASSED BY THE UNIVERSITY.** **ANNEXURE II TRUE COPY OF THE ORDER NO.AD.D2/UGC.REG.2010/CAS/2012 DATED 23.06.2014 PASSED BY THE UNIVERSITY.** **ANNEXURE III TRUE COPY OF THE NOTIFICATION NO.AD.D3/136/NOTIF/08 DATED 24.04.2013 ISSUED BY THE UNIVERSITY.** **ANNEXURE IV TRUE COPY OF THE APPENDIX III TABLE II(C) AS CONTAINED IN THE UGC REGULATION. RESPONDENT'S EXHIBITS** **ANNEUXURE R1(a): TRUE COPY OF THE U.O.NO.AD.D1/ATM.SC/MM/ 2018 DATED 27/3/2018 APPOINTING THE APPELLANT DR.MIDHUN M AS ASSISTANT PROFESSOR OF METEROLOGY IN THE DEPARTMENT OF ATMOSPHERIC SCIENCE, CUSAT.** WA Nos.6, 139 & 151/2019 -:18:- ## **APPENDIX OF WA 139/2019** **APPELLANT'S EXHIBITS:** **ANNEXURE A1** **A TRUE COPY OF THE UNIVERSITY ORDER NO.8660/2016/ADMN. DATED 16.7.2016.** **ANNEXURE A2 A TRUE COPY OF THE SELECTION CRITERIA FOR DIRECT RECRUITMENT OF ASSISTANT PROFESSOR BY VIDYASAGAR UNIVERSITY.** **ANNEXURE A3 A TRUE COPY OF THE ORDER NO.AD.D2/UGC. REG.2010/CAS/2012 DATED 1.7.2014 OF THE CUSAT.** **ANNEXURE A4** **TRUE COPIES OF THE PABS SHEETS OF THE 81 CANDIDATES APPOINTED BY CUSAT OBTAINED BY SRI.BABY CHAKRAPANI UNDER RIGHT TO INFORMATION ACT.** WA Nos.6, 139 & 151/2019 -:19:- ## **APPENDIX OF WA NO.151/2019** **APPELLANT'S EXHIBITS:** **ANNEXURE-1** **TRUE COPY OF THE UNIVERSITY ORDER NO.AD.D2/UGC.REG.2010/CAS/2012 DATED 23.6.2014.** ## **ANNEXURE-II** **TRUE COPY OF THE U.O.NO.AD.D2/UGCREG/ 2010/CAS/2012 DATED 23.5.2015.** **ANNEXURE-III** **TRUE COPY OF THE MARK SHEET FOR ASSESSMENT OF TEACHING SKILLS** True Copy PS to Judge Rp