Dr. Mohammed Aslam M.A. v Central University of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941** ## **WP(C).No.29993 OF 2017(Y)** ## **PETITIONER:** **DR. MOHAMMED ASLAM.M.A ASSOCIATE PROFESSOR, SREYAS, KMC VIII/306, ANANGOOR, VIDYA NAGAR P.O, KASARAGOD, KERALA, PIN- 671 123** **BY ADVS. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SRI.A.L.NAVANEETH KRISHNAN** ## **RESPONDENTS:** - **1 THE CENTRAL UNIVERSITY OF KERALA REP. BY ITS REGISTRAR, TEJASWINI HILLS, PERIYE P.O. KASARAGOD, PIN- 671 316** **2 THE EXECUTIVE COUNCIL CENTRAL UNIVERSITY OF KERALA, PERIYE P.O. KASARAGOD, PIN- 671 316 REP. BY ITS CHAIRMAN/VICE CHANCELLOR** **3 THE CHAIRMAN SELECTION COMMITTEE CONSTITUTED FOR THE POST OF PROFESSOR IN GEOLOGY, CENTRAL UNIVERSITY OF KERALA, THEJASWINI HILLS, PERIYE P.O. KASARAGOD, PIN-671 316** ## **BY ADV.** **SRI.V.SAJITH KUMAR, SC, CENTRAL UNIVERSITY OF KERALA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.07.2019, THE COURT ON 08.08.2019 DELIVERED THE FOLLOWING:** **WP(C).No.29993 OF 2017(Y)** 2 ## _**P.V.ASHA, J.**_ **--------------------------** W.P(C).No.29993 of 2017-Y ------------------------------------------- _Dated this the 8[th] day of August, 2019_ ## _**JUDGMENT**_ A professor working in the Central University of Karnataka has filed this Writ Petition challenging the decision of the 1[st] respondent University not to make any appointment to the post of Professor in the Department of Geology, based on the selection conducted for the same pursuant to Ext.P1 notification. 2. The 1[st] respondent University issued Ext.P1 notification dated 4.12.2015 inviting applications for various teaching posts. The petitioner, who was working as Associate Professor in the Central University at Karnataka submitted application for appointment of Professor in Geology. He had submitted applications for appointment to other teaching posts also. In Ext P1, the qualification for appointment to the post of Professor was notified as follows: _“1. PROFESSOR_ > _A. (i) An eminent scholar with Ph.D. Qualification (s) in the concerned/allied/relevant discipline and published work of high quality actively engaged in research with evidence of published work of high quality actively engaged in research with evidence of published work with a minimum of 10 publications as books and/or research/policy papers. (ii) A minimum of ten years of teaching experience in university/college, and/or experience in research at the University/National level institutions/industries, including experience of guiding candidates for_ **WP(C).No.29993 OF 2017(Y)** 3 _research at doctoral level._ _(iii) Contribution to educational innovation, design of new curricula and course, and technology – mediated teaching learning process. (iv) A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), set out in this Regulation in Appendix III of UGC Regulations and subsequent amendments._ _O R_ _B.An outstanding professional with established reputation in the relevant field, who has made significant contributions to the knowledge in the concerned/allied/relevant discipline to be substantiated by credentials.”_ The essential qualifications for the post of Professor in Geology, given in Ext.P1 notification was Master's Degree in Geology/Earth Sciences and Ph.D in concerned/allied/relevant area. The last date fixed for receipt of application was 31.12.2015. The petitioner points out that as per appendix 1 to the UGC Regulations on Minimum Qualification for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 (hereinafter referred to as the “Regulations, 2010” for short) -Ext.P2, regulation 4 provides for direct recruitment. In Regulation 4.1.0 which provides for Professor, the qualifications provided are the following: _“4.1.0 PROFESSOR_ _A. (i) An eminent scholar with Ph.D qualification(s) in the concerned/allied/relevant discipline and published work of high quality, actively engaged in research with evidence of published work with a minimum of 10 publications as books and/or research/policy papers._ _(ii) A minimum of ten years of teaching experience in university/college, and/or experience in research at the University/National level institutions/industries, including experience of guiding candidates for research at doctoral level._ _(iii) Contribution to educational innovation, design of new curricula and courses, and technology – mediated teaching learning process._ _(iv) A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), set out in this Regulation in_ **WP(C).No.29993 OF 2017(Y)** 4 _Appendix III._ _O R_ _B. An outstanding professional, with established reputation in the relevant field, who has made significant contributions to the knowledge in the concerned/allied/relevant discipline, to be substantiated by credentials.”_ The petitioner has also relied on clause 6.8.0 of the Regulations which, according to him, provides that the eligibility to be appointed and designated as Professor is completion of 3 years of service as Associate Professor in the AGP of Rs.9000 with Ph.D in the relevant discipline, subject to other conditions of academic performance as laid down by the UGC. 3. Petitioner claims that he has acquired 2 Ph.Ds in the concerned/allied/relevant discipline, in support of which he has produced Exts.P5 (a) and P5(b) in which he is awarded Ph.D degree in Remote Sensing from Chiba University and Ph.D in Geology from University of Mysore. He claims that he has published 7 books, 34 research articles in Peer Reviewed Journals and 57 papers published in conference proceedings. Apart from that, he is a co-author of 3 books. He also claims that he had been a member of many academic bodies and societies and has got much more than the prescribed minimum of 400 API score in all the 3 categories. 4. The petitioner submitted his application pursuant to the notification. The screening committee found him eligible to be called for interview. The petitioner appeared in the interview held on 19.01.2017. 3 candidates including the petitioner attended the interview. It is stated that one was a Professor and another **WP(C).No.29993 OF 2017(Y)** 5 one was an Associate Professor. In Ext.P8 mark sheet prepared by the selection committee the petitioner got the highest marks, but the selection committee did not recommend any of the 3 candidates who appeared in the interview. In Ext.P9 result sheet it was stated that none of them were found eligible. The petitioner points out that he was the first as per the evaluation; he was fully qualified as furnished in Ext.P6 application. In Ext.P7 summary sheet in respect of the petitioner his API score is 641.285 as against the minimum required score of 400. The screening committee found that the petitioner has fulfilled all the requirements and recommended him for interview. As per Ext.P7 summary sheet, in the preliminary score sheet the petitioner got 18 out of 20 marks for category A – academic back ground, for which 20% marks is earmarked. Under table II C, the scrutiny committee awarded 16.5 marks out of 40 which was reduced by the selection committee to 13 out of 40, as against the 40% earmarked for Research Performance and Quality of Publications. Under the head assessment of domain knowledge and teaching skill assessed by the selection committee he was awarded 15 out of 15. 5 marks awarded towards teaching experience at PG level was struck off in the score sheet. In Ext.P8 mark list the marks of the petitioner in A, B, C and teaching skill plus interview was shown as 53. The other 2 candidates got 51.5 and 49 respectively. In the remarks column the selection committee remarked against each of their name as “Not recommended”. As against the teaching skill plus interview, the marks awarded to the petitioner and Dr.George.A.V was 2+5 and for the 3[rd] candidate it was 1+5. The University published Ext.P9 result of the **WP(C).No.29993 OF 2017(Y)** 6 interview for various teaching posts. As against the post of Professor in the Department of Geology and Associate Professor in the Department of Plant Science, nobody was found eligible. The writ petition is filed thereafter, after collecting details of the selection on application under the RTI Act. 5. Respondents 1 to 3 have filed a counter affidavit stating that the selection committee was constituted in accordance with the University Statute and UGC Regulations. The screening committee as well as the interview board assessed the candidates in accordance with the procedure prescribed. It is stated that the selection committee found that all the candidates were below average and it was unanimously resolved not to recommend any of the three candidates. That decision was affirmed by the executive council. It is stated that the performance of all the candidates in the pedagogical skill test and interview was below the standard. Producing Ext.R1 minutes of the meeting of the selection committee held on 19.01.2017, it was stated that the selection committee unanimously resolved not to recommend any candidates as Professor in Geology and executive committee accepted the same and decided not to appoint anybody . 6. The petitioner filed a reply affidavit stating that it was improper for the selection committee not to recommend the petitioner or any of the candidates for appointment when it found that he was having the minimum qualifications prescribed. It is further contended that the selection committee does not have any authority to supplant the minimum qualification, especially when his API score **WP(C).No.29993 OF 2017(Y)** 7 was 641.285 which is far above the minimum required of 400. The petitioner also stated that there was procedural irregularities in as much as the total number of the members of the selection committee was only 6 to 7; which is not sufficient as per the University statute and that the selection committee was constituted in violation of the aforesaid provision. Pointing out the API score awarded to him in each category the petitioner pointed out that there is no justification in grading him below average. Pointing out that he was awarded 15 marks for domain knowledge and teaching skill which is the maximum marks for domain knowledge and teaching skill there was no material for assessing him as below average and therefore no basis for not recommending anybody. It is also stated that the petitioner, who is working as a Professor in the Central University itself in Karnataka with more than 15 years of teaching experience, was not liable to be discarded. Producing Ext.P13 UGC regulation of 2013 the petitioner points out that the action of the University is illegal. 7. The petitioner also points out that the University is proceeding with the process of fresh selection. 8. Heard the learned counsel for the petitioner and the learned standing counsel. The question which arises in the case is whether the selection committee can on evaluation of the candidates make a recommendation to the effect that none of the candidates are eligible for appointment, once they have secured all the minimum qualifications and no other criteria is fixed. The respondents have stated **WP(C).No.29993 OF 2017(Y)** 8 that the pedagogical skill of all the 3 candidates was found to be below average. It is stated that a skill test was conducted on the date of the interview. It is true that the post concerned is that of Professor of a Central University and performance in the interview as well as the pedagogical skill of the candidates are factors which are relevant for selection to the post concerned. It is also relevant to note that Rule 2 of Ext.P12 Regulations substituting clause 6.1.0 of the annexure of UGC Regulation 2010 provides, after the second proviso as follows: _“In order to make the system more credible, universities may assess the ability for teaching and/or research aptitude through a seminar or lecture in a class room situation or discussion on the capacity to use latest technology in teaching and research at the interview stage. These procedures can be followed for both direct recruitment and CAS promotions wherever selection committees are prescribed in these Regulations.”_ It is also true that the petitioner does not have any complaint as against the members of the selection committee. No malafides is also not alleged against any particular member of the selection committee. The selection committee has in Ext.R1(a) found that the research aptitude and pedagogical skill of all the candidates were found below average. It is true that the score of the petitioner towards research experience etc for which 40 % marks is earmarked he got only 13 out of 40 and for interview and teaching skill for which 20+5% marks is earmarked, he got 7 out of 25. But the fact remains that no cut off marks is seen prescribed for interview or pedagogical skill either in the UGC Regulation or in the advertisement. The only minimum requirement was with respect to API score of 400, which the petitioner has satisfied. But no minimum marks is seen **WP(C).No.29993 OF 2017(Y)** 9 prescribed under any of the heads and at any rate for the interview. 100 marks are seen allocated under different heads as provided in Ext.P13 UGC Regulations. A reading of the provisions in UGC Regulations would show that no separate minimum marks is prescribed for interview. Even then the selection committee found that none of the candidates is eligible for appointment as Professor. 9. The question to be considered is whether the petitioner can insist that the University has to make appointment even when it is found that the teaching skill of the candidates is below average and also that whether the selection committee can deny selection to any candidate merely on the basis of the marks in teaching/research aptitude, even in the absence of a minimum cut off mark. The marks are earmarked by the UGC under different heads for assessment of a candidate. However there is no minimum marks provided either for interview or for teaching skill for a candidate. It is also not stated in the UGC regulations. From the preliminary score in Ext.P7 it is seen that as against academic background for which 20% is earmarked which is to be assessed by the screening committee the petitioner obtained 18 out of 20. Under the research performance and quality of publications for which 40% is earmarked, the petitioner obtained 2 marks out of 10; towards research guidance at doctoral level, he got 10 marks; towards post-doctoral international fellowship and international/national post doctoral research awards, he scored 4 out of 5; as against quality of papers/books, he was awarded 4 out of 15; as against research project/consultancy he got 3 out of 10 and the total score under this head is 13 out of 40. The marks earmarked under **WP(C).No.29993 OF 2017(Y)** 10 different heads are: (A) Academic background : 20% (B) Research Performance and Quality of Publications: 40% (C) Assessment of Domain Knowledge and Teaching skill : 20% and (D) Interview : 20%. Ext.P7 earmarks 20% for assessment of domain knowledge and teaching skill. In this the marks towards teaching experience alone is scored off and towards Ph.D, publications, seminar presentation as well as administrative experience, experience as HOD/membership of academic council etc. organising internal conference/workshop and organising national conferences/workshop, the petitioner is awarded the maximum score i.e 15 out of 15. Coming to Ext.P8 mark sheet, the petitioner got 18 out of 20 under the head A, 13 out of 40 under the head B, 15 out of 20 under the head C. It is under the head teaching skill (which is apparently separated from domain knowledge) and interview that 2 plus 5 marks are awarded, which is the reason stated for not recommending him. But the UGC regulations nowhere provide that a candidate can be denied appointment on the basis of the performance in the interview alone or on assessment of teaching skill. No minimum score is seen provided either in Ext.P1 notification or in Ext.P2 regulations, though it would be open to the University to prescribe any such cut off marks. 10. In the absence of any prescription regarding minimum marks for interview or in pedagogical skill, the action of the University cannot be said to be proper in not recommending any of the candidates. Though it is necessary to have pedagogical/teaching skill for any teaching post, the regulation does not provide for any minimum marks for interview. In the absence of such a provision, I am of **WP(C).No.29993 OF 2017(Y)** 11 the view that the action of the selection committee as well as the executive council in not recommending any of the candidates for the aforesaid reasons was not correct. 11. Though it is settled law that the courts under Article 226 shall not interfere with the academic matters, when it is found that the selection and appointment are governed by statutory provisions and those provisions are not followed, this Court can definitely interfere. The API score of the petitioner is found to be 641.85 as against the minimum API score of 400. The API score awarded to him as accepted by the selection committee is more than 400. Towards domain knowledge the petitioner is awarded the full mark. It is also relevant to note that the petitioner is a Professor in Geology working under the Central University of Karnataka. The marks are earmarked under different heads in order to see that a candidate is not excluded merely on the basis of the marks in a single head or especially in the interview alone. The counter affidavit also does not state that either the selection committee or the UGC regulation provided for any minimum marks to be scored under any of the heads. In the absence of such a criteria fixed before selection, even if there is no allegation of malafides, it cannot be said that none of the candidates was liable to be recommended or appointed. 12. Clause 6.1.0 as amended by 2013 regulations, - Ext.P12 produced along with the reply affidavit read as follows: > “ _6.01The overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of merits and credentials of the applicants based_ **WP(C).No.29993 OF 2017(Y)** 12 _on weightage given to the performance of the candidates at different relevant dimensions and his/her performance on a scoring system performa based on Academic Performance Indicators(API) as provided in this Regulations in tables 1 to IX of Appendix III.”_ Even though clause 6.0.2 of the regulations Ext.P12 empowered the University to increase or modify criteria for screening of candidate at any level of recruitment, the counter affidavit is silent with respect to any of the criteria so adopted by the respondents. 13. The respondents do not have a case that whether it had fixed any minimum marks for interview or for the pedagogical skill test or that it had empowered the selection committee to fix the minimum marks for interview or skill test. No material is produced towards the same. In the absence of a decision by the University and in the absence of any such authorisation to the selection committee to take a decision as to the ineligibility of the candidates merely on the basis of performance in interview and skill test the action of the respondents in not drawing a rank list cannot be correct, proper or legal, as it is not provided in the Regulations. UGC Regulations do not prescribe any minimum marks for interview or skill test, though percentage of marks are earmarked under different heads. 14. Though in an interview the intellectual and personal qualities, the initiative, intelligence, alertness, resourcefulness, intellectual outlook, dependableness, integrity, etc of the candidate can be assessed and evaluated , when the respondent University has not published the criteria if any fixed or **WP(C).No.29993 OF 2017(Y)** 13 furnished the records to show that such criteria was fixed before commencement of the process of selection, I find that the procedure adopted by the selection committee which is accepted/ratified by the University is illegal. The full Bench of this court in _**Cyril Johnson (Dr) V State of Kerala and others: 2009(4)KHC 404 : 2009(4) KLT 573 (Kesav Mohan V University of Kerala)**_ has considered the authority of the selection committee to prescribe norms as follows: _1) The selection committee, which has been statutorily constituted, should follow the norms for assessing the merit of rival candidates, if such norms are laid down in the statute. The Selection Committee has no jurisdiction or authority to either relax any of the norms or vary the same._ _2) If the statute which provides for the constitution of the Selection Committee does not provide for the norms for the selection committee, then it is open to the appointing authority to lay down instructions and guidelines providing for such norms. In such a case, the Selection Committee is bound to follow such administrative instructions in conducting selection._ _3) In cases where the norms governing the selection are not laid down either in the statutory provisions or in administrative instructions, the Selection Committee constituted to conduct selection would not have any inherent jurisdiction or authority to evolve its own norms for conducting the selection. If it evolves its own norms, then its action will be without authority and jurisdiction and selection would be vitiated._ In that case the selection and appointment of the Controller of Examinations was found illegal as the selection committee was found to have prescribed norms without authority. 15. In this context it is relevant to note the judgments of the apex court where the prescription of minimum cut off marks prescribed in the midst of the selection was deprecated by this court. In the judgment in _**Hemani Malhotra V Delhi High Court: (2008)7 SCC 11**_ , it was held as follows: > _“15. There is no manner of doubt that the authority making rules regulating the selection can prescribe by rules the minimum marks both for written examination and_ **WP(C).No.29993 OF 2017(Y)** 14 _viva voce, but if minimum marks are not prescribed for viva voce before the commencement of selection process, the authority concerned, cannot either during the selection process or after the selection process add an additional requirement/qualification that the candidate should also secure minimum marks in the interview. Therefore, this Court is of the opinion that prescription of minimum marks by the respondent at viva voce test was illegal.”_ It was a case where the non-inclusion in the rank list for appointment of District Judges, for want of minimum marks in viva voce was challenged pointing out that there was no such prescription before commencement of selection process. 16. The question whether rules can be changed after the selection process started is referred to the larger bench in _**Tej Prakash Pathak v. Rajasthan High Court, (2013) 4 SCC 540,**_ thereafter in _**Salam Samarjeet Singh v. High Court of Manipur, (2016) 10 SCC 484**_ and thereafter in _**Sivanandan C.T. v. High Court of Kerala, (2018) 1 SCC 239**_ **.** In this case it is also necessary to examine whether the selection committee was competent to fix any such cut off marks and whether even in the absence of such a cut off marks, it can refrain from selecting anybody. 17. Though it is settled law as pointed out by the learned Standing Counsel relying on the judgments in _**National Institute of Mental Health & Neuro Sciences v. K.Kalyanaraman & others : 1992 supp (2) SCC 481, IPS Devan v. Union of India & others : (1995) 3 SCC 383, K.A.Nagamani v. Indian Airlines & others (2009) 5 SCC 515**_ that the jurisdiction of this court is limited when a duly constituted selection committee with experts in the field has conducted the selection and that this court is not expected to sit in appeal over the decision of selection committee, this court would be justified to step in when the **WP(C).No.29993 OF 2017(Y)** 15 selection is not conducted in accordance with law. The absence of plea of malafides against members of selection committee or plea of estoppal are only to be discarded in the circumstances of the case when the selection committee has taken decisions contrary to the UGC regulation and without authority. Therefore the decision not to select any candidate by the selection committee and the University is set aside. The University shall therefore take steps to publish a select list in accordance with law from among the candidates who applied for the post of Professor in Geology, pursuant to Ext.P1 notification, on the basis of the materials already produced by them, which the scrutiny committee has already assessed. This shall be done within a period of two months from the date of receipt of a copy of the judgment. The Writ Petition is disposed of accordingly. _**Sd/-**_ _**(P.V.ASHA, JUDGE)**_ _rtr/_ **WP(C).No.29993 OF 2017(Y)** 16 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE EMPLOYMENT NOTIFICATION NO.7/2015 DATED 4-12-2015 ISSUED BY THE 1ST RESPONDENT UNIVERSITY EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES (7849 TO 7853,7888 TO 7893) OF THE UGC REGULATIONS 2010 AS APPEARED IN THE GAZETTE EXHIBITP3 TRUE COPY OF THE RELEVANT PAGES OF APPENDIX-1 (PAGES 7922-7924 & 7937) MENTIONED IN UGC REGULATIONS 2010 EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE SCHEDULE REFEREED IN CLAUSE 6.8.0 IN UGC REGULATIONS 2010 (PAGES 7910, 7911 AND 7920) EXHIBBITP5(a) TRUE COPY OF THE CERTIFICATE OF CONFERMENT OF PHDS. EXHIBIT P5(b) TRUE COPY OF THE CERTIFICATE OF CONFERMENT OF PHDS. EXHIBIT P6 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER IN RESPONSE TO EXT.P1 NOTIFICATION EXHIBIT P7 TRUE COPY OF SUMMER SHEET PREPARED BY THE SCREENING COMMITTEE EXHIBIT P8 TRUE COPY OF THE MARKS SHEET OBTAINED UNDER RTI ACT EXHIBIT P9 TRUE COPY OF THE RESULT OF THE SELECTION PROCESS PUBLISHED BY THE 1ST RESPONDENT EXHIBIT P10 TRUE COPY OF THE APPLICATION DATED 4-4-2017 PROVIDING INFORMATION BY THE 1ST RESPONDENT EXHIBIT P11 TRUE COPY OF THE REPLY DATED 12-5-2017 PROVIDING INFORMATION BY THE 1ST RESPONDENT EXHIBIT P12 TRUE COPY OF THE AMENDMENT TO UGC REGULATION 2010 BROUGHT INTO FORCE WITH EFFECT FROM 13.06.2013.** **WP(C).No.29993 OF 2017(Y)** 17 **EXHIBIT P13 TRUE COPY OF THE TABLE-1 OF APPENDIX III OF THE UGC REGULATIONS DEALING WITH ACADEMIC PERFORMANCE IN THE INDICATORS. EXHIBIT P14 TRUE COPY OF THE NOTIFICATION PUBLISHED IN MATRUBHUMI DAILY ON 14.06.2019.** **RESPONDENTS' EXHIBITS:** EXT. R1 A TRUE COPY OF THE MINUTES OF THE SELECTION COMMITTEE MEETING TO THE POST OF PROFESSOR IN GEOLOGY.