Dr. P. Satheesh and others v. Thunchath Ezhuthachan Malayalam University and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **WP(C).No.33208 OF 2016(A)** ## **PETITIONER/S:** - **1 DR. P.SATHEESH, AGED 40 YEARS, PALANKI HOUSE, KALICHAMPOTI, MADIKAI P.O., NILESHWAR VIA, KASARAGOD - 671 314.** - **2 DR. PRIYA M., MACHINCHERY HOUSE, CHERUTHURUTHY P.O., THRISSUR - 679 531.** - **3 DR. JITHA G., ROMA SKY HEIGHTS, COCHIN UNIVERSITY P.O., KOCHI - 682 022.** - **4 DR. JENSON JOSEPH, UZHATHIPARAMBIL, MANOOR SOUTH P.O., KOTTAYAM - 686 603.** - **5 DR. RAJESH K., KOTTARAT HOUSE, KANDASSANKKADAVU P.O., THRISSUR - 680 613.** - **6 SREEJA K., KOOMOCHINGAL HOUSE, MAVOOR VIA, KOZHIKODE - 673 661.** - **7 DR. SHAHUL AMEEN, RUKUN PALACE 1, MUSLIM SOCIETY, NAVRANGPURA, AHEMEDABAD, GUJARAT.** - **8 DR. SANTHOSH KUMAR P.K., DOOR NO.3, SRI SRINIVASAM, SYNDICATE BANK COLONY, ARRIKARE, BENGALURU - 560 076.** - **9 RAMSHEENA C.A., CA MANZIL, CHELEMBRA P.O., RAMANATTUKARA, MALAPPURAM-673 634.** - **10 GEETHA G., MF 5/4004, VRINDAVANAN GARDENS, PATTOM PALACE, TRIVANDRUM-695 004.** **W.P.(C)Nos.33208 & 35896 of 2016** **2** ## **BY ADVS. SRI.M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA** ## **RESPONDENT/S:** - **1 TUNJATHU EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O., TIRUR, MALAPPURAM-676 502, REPRESENTED BY ITS REGISTRAR.** - **2 K. JAYAKUMAR,** - **VICE-CHANCELLOR AND CHAIRMAN OF THE SELECTION COMMITTEE, TUNJATHU EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O., TIRUR, MALAPPURAM-676 502.** - **3 DR.JAINY VARGHESE, PUNNAKKERI HOUSE, ULAVEYPU, CHERTHALA, ALAPPUZHA-688 524.** - **4 SREEJA V., VERIKKOTTIL HOUSE, VEDANAMKKURISSI P.O., PALAKKAD-679 121.** - **5 DR. MANJUSHA VARMA, ASSISTANT PROFESSOR, DEPARTMENT OF HISTORY, NSS HINDU COLLEGE, CHANGANASSERY -686 101.** - **6 DR.K.S. HAKEEM, RESEARCH SCHOLAR, DEPARTMENT OF SOCIOLOGY, DELHI SCHOOL OF ECONOMICS, DELHI UNIVERSITY -110 007.** - **7 DR. DANYA R., ANUPALLAVI, CHUNGATHARA P.O., NILAMBUR - 679 334.** - **8 DR. SREERAJ, ASSISTANT PROFESSOR, SOCIOLOGY, TUNJATHU EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O., TIRUR, MALAPPURAM-676 502.** - **9 DR. SREEJA N.G., ASSISTANT PROFESSOR, HISTORY, TUNJATHU EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O., TIRUR, MALAPPURAM-676 502.** - **10 DR. S.S. SWAPNA RANI, ASSISTANT PROFESSOR, SOCIOLOGY, TUNJATHU EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O., TIRUR, MALAPPURAM-676 502.** **W.P.(C)Nos.33208 & 35896 of 2016** **3** |**11**|**VIDHYA R.,**| |---|---| ||**ASSISTANT PROFESSOR, FILM STUDIES,**| ||**TUNJATHU EZHUTHACHAN MALAYALAM UNIVERSITY,**| ||**VAKKAD P.O., TIRUR, MALAPPURAM-676 502.**| |**12**|**DR. SUDHEER SALAM,**| ||**ASSISTANT PROFESSOR, FILM STUDIES,**| ||**TUNJATHU EZHUTHACHAN MALAYALAM UNIVERSITY,**| ||**VAKKAD P.O., TIRUR, MALAPPURAM-676 502.**| ||**BY ADVS.**| ||**R1 - SRI. P.C. SASIDHARAN, SC, MALAYALAM**| ||**UNIVERSITY**| ||**R3 TO R7 - SRI.T.R.RAVI**| ||**R8 TO R12 - SRI.JAWAHAR JOSE**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.11.2019, ALONG WITH WP(C).35896/2016(J), THE COURT ON 26.11.2019 DELIVERED THE FOLLOWING:** **W.P.(C)Nos.33208 & 35896 of 2016** **4** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** **WP(C).No.35896 OF 2016** ## **PETITIONER/S:** **1 ABHILASH CHANDRAN, THONDUMURIYIL, THADIYOOR, THIRUVALLA. 2 DR. LAJU P. THOMAS, PUTHENMANNIL, ULANADU P.O., KULANADA VIA, PATHANAMTHITTA. 3 TINU JOSEPH, PULLUKATTU HOUSE, NEAR VEG. MARKET ROAD, CHANGANASSERY. BY ADVS. SRI.M.P.SREEKRISHNAN SRI.A.MUHAMMED MUSTHAFA** ## **RESPONDENT/S:** **TUNJATHU EZHUTHACHAN MALAYALAM UNIVERSITY, VAKKAD P.O., TIRUR, MALAPPURAM 676 502, REPRESENTED BY ITS REGISTRAR.** **R1 BY SRI. P.C.SASIDHARAN, SC, THUNCHATH EZHUTHACHAN MALAYALAM UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.11.2019, ALONG WITH WP(C).33208/2016(A), THE COURT ON 26.11.2019 DELIVERED THE FOLLOWING:** **W.P.(C)Nos.33208 & 35896 of 2016** **5** ## **C.R.** ## **JUDGMENT** The captioned writ petitions are materially connected in respect of the notification issued by the 1[st] respondent University to the post of Assistant Professor in different Faculties under it and the consequential selection conducted and its illegality. Therefore, I heard them together and propose to deliver this common judgment. In order to dispose of the writ petitions, the facts and documents available from W.P. (C) No.33208 of 2016 are relied upon and the fate of the connected writ petition will depend upon the decision taken in the said writ petition. Brief material facts for the disposal of the writ petitions are as follows: 2. The Thunchath Ezhuthachan Malayalam University i.e., the 1[st] respondent (hereinafter referred to as 'the University'), issued Ext.P1 notification dated 22.07.2016, inviting applications from eligible candidates for filling up of various posts of Assistant Professors for different Faculties under it. As per clause 4.4.1 of Ext.P2 UGC Regulations, 2010, the requisite qualification for the post of Assistant Professor is 55% marks in Post-Graduate degree in ## **W.P.(C)Nos.33208 & 35896 of 2016 6** the relevant subject and National Eligibility Test (NET). In case the NET is not conducted in any of the subject, the stipulation shall not be applicable. Further, if the candidate has obtained Ph.D in the relevant subject, the NET qualification is exempted. Thereupon, petitioners who are qualified to be appointed to the post of Assistant Professor in different faculties have applied for the post. 3. The 1[st] petitioner has applied for the post of Assistant Professor in History under the faculty of Cultural Heritage and History. The 2[nd] and 3[rd] petitioners have applied for the post of Assistant Professor in Environmental Studies under the faculty of Social Science. The 4[th] and 10[th] petitioners have applied for the post of Assistant Professor, Film Studies under the Faculty of Media Studies. Petitioners 5, 6 and 8 have applied to the post of Assistant Professor, Local Developmental Studies. The 7[th] and 9[th] petitioners have applied to the post of Assistant Professor, Sociology. According to the petitioners, they are having sufficient qualifications in accordance with the notification issued by the University. Anyhow, the qualifications of the petitioners are not disputed by any of the respondents. **7** ## **W.P.(C)Nos.33208 & 35896 of 2016** 4. The prime contention advanced by the petitioners is that, as per the University Grants Commission (Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (hereinafter referred to as 'the Minimum Qualification Regulations') provides for the constitution of the selection committees and guidelines on selection procedure, and the relevant portion of the same is produced as Ext.P3. Clause 6.0.1 of the Minimum Qualification Regulations deals with the Selection procedure to be followed, which is produced as Ext.P4. Clause 6.0.1 of Ext.P4 stipulates that “The overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the applicants based on weightages given to the performance of the candidate in different relevant dimensions and his/her performance on a scoring system Proforma based on the Academic Performance Indicators (API) as provided in the Regulations in Tables I to IX of Appendix-III. In order to make the system more credible, Universities may assess the ability for **W.P.(C)Nos.33208 & 35896 of 2016** **8** 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 Career Advancement Scheme (CAS) promotions wherever selection committees are prescribed in these Regulations”. 5. Thus, according to the petitioners, it is clear that clauses 4.4.1, 5.0.0, 5.0.1, 6.0.1, and 6.0.2 and Appendix-III Table II(c) shall be followed by the 1[st] respondent University in the matter of appointment to the post of Assistant Professor. Accordingly, petitioners were called for interview by issuing Ext.P6 intimation. It was specifically stipulated in Ext.P6 that those candidates who are working in any establishment shall produce the NoObjection Certificate and records pertaining to Academic Performance Indicators, however, the stipulations contained in Ext.P6 intimation are contrary to the provisions of Minimum Qualification Regulations, 2010 in the matter of procedure to be followed at the time of selection as the same stipulates that API score need be produced only by those candidates who are working in any **9** ## **W.P.(C)Nos.33208 & 35896 of 2016** establishment currently. 6. So also, in the format of application published by the University, it has been specifically stipulated that along with the application it is not necessary to produce the certificates and publication, but the same has to be produced at the time of interview. It was specifically mentioned in the format that Academic Performance Indicator has to be mentioned, evident from Exts.P6 and P7. That apart, from the essential qualifications, Academic Performance Indicator would form part as a criteria for analysing the eligibility and skills of the applicants. Acting upon Exts.P6 and P7, petitioners have submitted the Academic Performance Indicators at the time of interview. However, at the time of interview, none of the Academic Performance Indicators were accepted or evaluated by the interview board, and the interview was conducted without analysing or assessing the Academic Performance Indicators. Therefore, the contention of the petitioners is that, the interview board had no occasion to award marks on the basis of weightages stipulated in Ext.P5 Appendix issued under the Minimum Qualification Regulations, 2010, and thereby rendered the entire selection process arbitrary and illegal. ## **W.P.(C)Nos.33208 & 35896 of 2016 10** 7. The Academic Performance Indicator produced by the 1[st] petitioner was returned to him, which is marked as Ext.P8. It is also pointed out that, likewise, the Academic Performance Indicators produced by petitioners 2 to 9 also were not accepted by the selection committee/interview board. It is the contention of the petitioners that, the non-acceptance of the Academic Performance Indicators and nonconsideration of the same would go to the root of the Minimum Qualification Regulations, 2010, wherein, it is mandated that the procedure for analysis of the merits and credentials of the applicants should be based on Academic Performance Indicators. 8. The last date for submission of the application was 10.08.2016 as per the notification dated 22.07.2016, and only 18 days were given for submitting the applications. The interview was conducted from 03.10.2016 to 06.10.2016 and the Ranked list was published on 07.10.2016, evident from Ext.P9. According to the petitioners, from 8[th] October to 12[th] October, the educational institutions were closed due to Pooja holidays, and on 13[th] October, a political party had called for national _Harthal_ and all the activities of the Universities including that of ## **W.P.(C)Nos.33208 & 35896 of 2016 11** conduct of examinations were postponed and a publication was made on 12[th] October accordingly. In the meantime, the University in haste, made arrangements to bring the candidates included in the ranked list in the vehicles owned by the University and given them charge to the respective posts. 9. That apart, it is contended that, overlooking the stipulations contained under clause 5.1.1 of Minimum Qualification Regulations, the Selection Committee was constituted, and so far as the selection to the post of Environmental Studies, it was constituted with two subject experts instead of three mandated in the Regulations. The subject experts were to be nominated out of the panel of names approved by the relevant statutory body of the University and no such panel was prepared or approved by the statutory body of the University in the instant case. It is also submitted that the Selection Committee constituted for the post of Assistant Professor, Environmental Studies with two persons who do not have the prescribed qualifications as per UGC norms and they are Dr. Eza and Dr. Muhammed Shafi, as both of them do not have Ph.D. in the concerned subject. Dr. Shafi is a retired professor in the subject Chemistry and Dr. Eza is a ## **W.P.(C)Nos.33208 & 35896 of 2016** **12** retired scientist. Likewise, in the Selection Committee constituted for the appointment of Assistant Professor, Local Development Studies, the two members i.e., Dr. P.P.Balan and Dr. J.B.Rajan were not qualified to be the members of the selection committee, as they were holding a post below the post of Assistant Professor. 10. So also, the institution, viz., the Kerala Institute of local Administration (KILA), in which they were working is not an educational institution functioning under the guidelines and criteria fixed by the UGC. Therefore, they were not competent to take part in the process of interview as a subject expert. So far as the interview for Social Sciences are concerned, there was only one subject expert instead of two mandated by the Regulations. Similarly, in the subject History, one M.R. Raghava Varyar was acting as head of the Department for the purpose of interview, who is only a visiting faculty. A visiting faculty is not a permanent teacher of the University and he is not entitled to act as Head of the Department and competent to conduct an interview for the post of Assistant Professor. The interview board consisted only 4 members instead of 6 requisited. **W.P.(C)Nos.33208 & 35896 of 2016 13** 11. Further, in the subject Film Studies, one of the member of the Selection Committee, Madhu Eravankara is a retired Chemistry teacher. That apart, one T.P. Kunhikannan was included in all the panels of selection committee. At the same time, he was functioning as a visiting faculty in Social Sciences, Dean Local Development Studies, and Head of the Department of Environmental Studies. It is also pointed out that, holding of these posts together are against the statutes of the University and he is also not having any Ph.D. in any of the subjects. These are the basic background facts projected by the petitioners seeking the following reliefs: _“(i) Declare that procedure adopted for appointments to the post of Assistant Professors in various Faculties under the 1[st] respondent University pursuant to Ext.P1 is arbitrary, illegal and is in violation of the provisions contained in UGC Regulations, 2010;_ _(ii) Issue a Writ of Certiorari quashing Ext.P9 rank list and the appointments of respondents 3 to 12 pursuant thereto as illegal and arbitrary; and_ _(iii) Issue any other writ, direction or order which may be found just and necessary in the facts and circumstances of the case.”_ 12. The 1[st] and 2[nd] respondents have filed a counter affidavit, refuting the allegations made by the petitioners. Among other contentions, it is stated ## **W.P.(C)Nos.33208 & 35896 of 2016** ## **14** that, candidates were evaluated on academic and research accomplishment (50%), domain knowledge (30%) and performance in the interview (20%) as stipulated by UGC, using structured score sheets. Accordingly, Rank lists were prepared by the selection committee, which was approved by the executive committee in circulation and published in the website on 07.10.2016, evident from Ext.R1(c). 13. In respect of the allegations made by the petitioners in regard to the illegal constitution of the Selection Committee, it is stated that, as per the UGC Norms and the statute of Malayalam University, an outstanding professional with established reputation in the relevant field who has made significant contributions to the knowledge with the concerned/relevant discipline to be substantiated by credentials can be appointed as Professor of any discipline. Therefore, T.P. Kunjikannan, an outstanding economist, environmentalist and writer was appointed as the visiting faculty of Social Science which includes Department of Environmental Studies and Local Development Studies. Being the Dean of Social Science, he was also included as the Ex-officio member of the committee. Dr. Eza was the former Director of Kerala ## **W.P.(C)Nos.33208 & 35896 of 2016** ## **15** Forest Research Institute and was the nominee of the Hon'ble Chancellor, as the subject expert for the selection of Assistant Professor in Environmental Studies. Therefore, according to the 1[st] and 2[nd] respondents, the contention put forth by the petitioners that the said persons do not possess the required qualification to act as members of the Selection Committee is baseless. 14. That apart, it is pointed out that, Dr. M.R. Raghava Varier is a renowned historian and former Professor of History, Calicut University, and considering his vast knowledge he was appointed as a Visiting Professor and the head of the Department of the first batch of History M.A. Course. That apart, it is submitted that, there is no provision in the statute of the University which prohibits a Visiting Professor to act as Head of the Department, and even though the total number of members in the selection committee is six including the Chairman, the quorum of the committee was fixed as four only, especially due to the fact that, some of the members expressed their inconvenience to attend the interview, and the quorum was varying from 4 to 6 in the boards. However, none of the board was with a constitution less than the fixed quorum. It ## **W.P.(C)Nos.33208 & 35896 of 2016** ## **16** is further submitted that, the Malayalam University is a new University established in the year 2012, and it has to manage the academic programme utilizing the services of eminent teachers and scholars from each discipline, and it will take some more time to have the full-fledged programme in all fields. 15. Respondents 3 to 7 have also filed a detailed counter affidavit, disputing the allegations and claims and demands raised by the petitioners. The said respondents are the appointees on the basis of the notification in question. The paramount contention advanced by the said respondents is that, petitioners who have participated in the selection process as per the notification in question are not entitled to challenge the same after finding that they were not successful in getting the selection. The other pinpointed allegations made by the petitioners are denied without providing sufficient details with respect to the denial of the contentions. 16. I have heard Sri. M.P.Sreekrishnan, learned counsel for the petitioners, Sri. P.C. Sasidharan, learned Standing Counsel appearing for the 1[st] respondent, Sri. T.R.Ravi, learned counsel appearing for respondents 3 to 7 and Sri. Jawahar Jose, learned ## **W.P.(C)Nos.33208 & 35896 of 2016 17** counsel appearing for respondents 8 to 12, and perused the pleadings and the documents on record. 17. The elaborate discussion of facts made above would make it clear that, the allegations of the petitioners are two-fold: (1) that the procedure prescribed as per the Minimum Qualification Regulations, 2010 was not followed in the matter of conduct of interview; and (2) that the Selection Committee constituted for selection of Assistant Professors to various Faculties was not in accordance with the Regulations, 2010, since some of the members of the interview board did not have sufficient qualification and that the interview board was not constituted in accordance with law. 18. To consider the contentions advanced by the parties, a reference to the provisions of Minimum Qualification Regulations, 2010 is vitally required. Clause 5.0.0 is relevant, which deals with Selection Committees and Guidelines on Selection Procedures. Clause 5.1.0 deals with Selection Committee Specifications, and clause 5.1.1 deals with the composition of the selection committee for the post of Assistant Professor. Sub-clause (a) thereto stipulates that, the Selection Committee shall be as follows: **W.P.(C)Nos.33208 & 35896 of 2016** **18** _“1. The Vice Chancellor shall be the Chairperson of the Selection Committee._ _2. Three experts in the concerned subject nominated by the Vice Chancellor out of the panel of names approved by the relevant statutory body of the University concerned._ _3. Dean of the concerned Faculty, wherever applicable._ _4. Head/Chairperson of the Department/School._ _5. An academician nominated by the Visitor/Chancellor, wherever applicable._ _6. An academician representing SC/ST/OBC/Minority/Women/Differently-abled categories to be nominated by the Vice Chancellor or Acting Vice Chancellor, if any of the candidates representing these categories is the applicant and if any of the above members of the selection committee do not belong to that category.”_ Sub-clause (b) thereunder specifies that at least four members, including two outside subject experts shall constitute the quorum. 19. Relying upon the said provisions, the contention advanced by learned counsel for the petitioners is that, there were no subject experts in the interview board constituted. An elaborate discussion in the matter is not required, since even according to the University, certain persons in the interview board was having sufficient knowledge with respect to the subjects to which the selection were conducted. There is no case for the University that ## **W.P.(C)Nos.33208 & 35896 of 2016 19** such persons did have the sufficient qualification to be a member of the interview board in terms of the Minimum Qualification Regulations, 2010. Therefore, in my considered opinion, when the Minimum Qualification Regulations prescribe essential qualifications, it did mean that the subject experts should be persons with such qualifications and not the persons who have got experience in such Faculties without the qualification required to be a member in the interview board. Therefore, substantially, the contentions advanced by the petitioners with respect to the constitution of the Selection Committee is found to be correct. 20. In that regard, it is also relevant to note that even though the University was constituted as per the Thunchath Ezhuthachan Malayalam University Act, 2013 (for brevity, 'the Act, 2013'), the Statutes, Ordinances and Regulations are not introduced in accordance with the provisions of the Act. Section 49 of the Act deals with Regulations, which stipulates that, subject to the provisions of the Act, and the Statutes, the Academic Council may make Regulations providing for all or any of the matters dealt with thereunder, and clause (c) is relevant to the context, which read thus: “the qualifications of teachers”. ## **W.P.(C)Nos.33208 & 35896 of 2016** ## **20** Therefore, in the absence of the Regulations, there is no qualifications prescribed for the teachers. Section 45 deals with Statutes, and under the said provision, the Statute is to be dealt with for various other matters including the withdrawal or cancellation of Degrees, Diplomas, Titles, Certificates and other academic distinctions, the holding of convocations to confer Degrees, the conferment and withdrawal of Honorary Degrees, the salary and other conditions of service of the Pro-Vice Chancellor, the classification and manner of appointment of teachers and non-teaching staff and other similarly situated activities. 21. Therefore, on an appreciation of Section 45 of Act, 2013, it is clearly evident that, on the basis of the Statute provided by the University, qualifications of the teachers cannot be prescribed, and on the other hand, it is explicit from Sec.49 of the Act that the qualifications of the teachers are to be prescribed in the Regulations. Therefore, the contention advanced in the counter affidavit of the University that the teachers and other faculties were appointed on the basis of the First Statute viz., Ext.R1(b) produced along with the counter affidavit has no force of law. Therefore, assimilating the ## **W.P.(C)Nos.33208 & 35896 of 2016** ## **21** submissions put forth by the rival parties, it is clear and evident that the constitution of the interview board is totally in violation of the Minimum Qualification Regulations, 2010 and the University Act, 2013. Accordingly, I find force in the contention advanced by learned counsel for the petitioners in that regard. 22. So far as the selection procedure is concerned, it is dealt with under clause 6.0.0 of the Regulations, 2010. Clause 6.0.1 stipulates that, the overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the applicants based on weightages given to the performance of the candidate in different relevant dimensions and his/her performance on a scoring system proforma, based on the Academic Performance Indicators (API) as provided in the Regulations in Tables I to IX of Appendix-III. 23. Clause 6.0.2 specifies that, the Universities shall adopt these Regulations for selection committees and selection procedures through their respective statutory bodies incorporating the Academic Performance Indicator (API) based Performance Based Appraisal ## **W.P.(C)Nos.33208 & 35896 of 2016** ## **22** System (PBAS) at the institutional level for University Departments and their Constituent colleges/affiliated colleges(Government/Government-aided/Autonomous/Private Colleges) to be followed transparently in all the selection processes. Clause 6.0.4 significantly indicates that, in all the Selection Committees of direct recruitment of teachers and other academic staff in Universities and colleges provided therein, an academician representing SC/ST/OBC/ Minority/Women/ Differently-abled categories, if any of the candidates representing these categories is the applicant, and if any of the above members of the selection committee do not belong to that category, shall be nominated by the Vice Chancellor or Acting Vice Chancellor of the University, and in case of a college, Vice Chancellor or Acting Vice Chancellor of the University to which the college is affiliated to. The academician so nominated for this purpose, shall be one level above the cadre level of the applicant, and such nominee shall ensure that the norms of the Central Government or concerned State Government, in relation to the categories mentioned above, are strictly followed during the selection process. **W.P.(C)Nos.33208 & 35896 of 2016 23** 24. Likewise, clause 6.2.0 stipulates that, the minimum norms of Selection Committees and Selection Procedures as well as API score requirements for the above cadres, either through direct recruitment or through Career Advancement Schemes Regulations, shall be similar. However, since teachers recruited directly can be from different backgrounds and institutions, Table II(c) of Appendix-III provides norms for direct recruitment of teachers to different cadres, while Tables II(a) and Table II(b) provide for CAS promotions of teachers in Universities and colleges respectively, which accommodate these differences. 25. Appendix-III Table-II(c) of Regulations, 2010 deal with the Minimum Scores for APIs for direct recruitment of teachers in University Departments/Colleges, Librarian/Physical Education cadres in Universities/Colleges, and weightages in Selection Committees to be considered along with other specified eligibility qualifications stipulated in the Regulation. The tabulation of the score, in accordance with Appendix-III Table-II(c) is provided hereunder for convenience: **W.P.(C)Nos.33208 & 35896 of 2016** **24** ||Assistant<br>Professor/<br>equivalent<br>cadres(Stage 1)|Associate<br>Professor/<br>equivalent<br>cadres(Stage 4)|Professor/<br>equivalent<br>cadres(Stage 5)| |---|---|---|---| |Minimum<br>API Scores|Minimum<br>Qualification<br>as stipulated<br>in these<br>regulations|Consolidated<br>API score<br>requirement of<br>300 points from<br>category III of<br>APIs|Consolidated<br>API score<br>requirement of<br>400 points from<br>category III of<br>APIs| |Selection<br>Committee<br>criteria/<br>weightages<br>(Total<br>Weightages<br>= 100)|a) Academic<br>Record and<br>Research<br>Performance<br>(50%)<br>b) Assessment<br>of Domain<br>Knowledge and<br>Teaching Skills<br>(30%)<br>c) Interview<br>performance<br>(20%)|a) Academic<br>Background<br>(20%)<br>b) Research<br>performance<br>based on API<br>score and<br>quality of<br>publications<br>(40%).<br>c) Assessment<br>of Domain<br>Knowledge and<br>Teaching Skills<br>(20%).<br>d) Interview<br>performance<br>(20%).|e) Academic<br>Background<br>(20%)<br>f) Research<br>performance<br>based on API<br>score and<br>quality of<br>publications<br>(40%).<br>g) Assessment<br>of Domain<br>Knowledge and<br>Teaching Skills<br>(20%)<br>Interview<br>performance<br>(20%).| 26. The contention advanced by the petitioners is that, the specifications contained under the Regulation 6.0.0 as well as the Appendix specified above are not followed by the interview board, which allegation, in my considered opinion, is not disputed at all either by the University or the party respondents convincingly and satisfactorily. It is also clearly stated that, without verifying API scores produced by the petitioners at the time of interview, they were ## **W.P.(C)Nos.33208 & 35896 of 2016 25** returned to the petitioners. So also, it is contended by learned counsel for the petitioners that, nowhere in the score sheet, a split-up figure in accordance with Appendix-III is provided, and only a total score is provided, which is against the Regulations, 2010. I find force in the said contention also, since the specific allegations so made by the petitioners in the writ petition are not denied either by the University or the party respondents. 27. Learned counsel for the petitioners has also invited my attention to an interim order passed by a Division Bench of this Court in W.P.(C) No.41752 of 2017 dated 02.04.2018, which is a Public Interest Litigation filed by the 1[st] petitioner herein and yet another person, viz., K.V. Shashi, whereby the State is directed to file an affidavit, explaining the steps that are taken to constitute the executive committee and other committees of the Thunchath Ezhuthachan Malayalam University in terms of the provisions of the Act, 2013. It is directed thereunder that, no further appointments or policy decisions concerning the administration of the University shall be taken without quorum in terms of Section 14(6) of Act, 2013. ## **W.P.(C)Nos.33208 & 35896 of 2016** **26** 28. Therefore, even though learned counsel for the party respondents have significantly contended that the petitioners are not entitled to turn around and attack the selection after participation in the selection process, in view of the abhorrent, illegal and unjustified selection process overlooking basic principles and all canons of law, the selection process has clearly deviated from the normal and standard procedures to be adopted, the said contention has no force of law. So much so, if I dismiss the writ petition on that ground, it will be nothing short of perpetuating illegality, and protecting the interest of the party respondents who have secured selection in a totally illegal and arbitrary manner. In this context, the judgment of a Division Bench of this Court in ' _**Sree**_ _**Sankaracharya University of Sanskrit v. State**_ ' [1996 (2) KLT 378] is relevant. Paragraphs 18 to 20 read thus: _“_ _**18** . In this context we have to take note of a serious objection raised by the learned senior counsel on behalf of the University which was adopted by the other learned counsel appearing in the other appeals that the petitioners in the original petition, after having subjected themselves to the interview cannot now turn round and challenge the constitution of the committee. Reliance was placed on the consideration of the Supreme Court in Om Prakash Shukla v. Akhilesh Kumar Shukla (AIR 1986 SC 1043). In the above case, the challenge was against the results of_ **W.P.(C)Nos.33208 & 35896 of 2016** **27** _the competitive examination held by the District Judge for appointment to the ministerial service in the subordinate courts. It was contended therein that the rules framed for the conduct of the competitive examination were not legal or operative. The Supreme Court upheld the validity of the rule and held that the rule were inoperative. Then there was an observation that the petitioner having appeared for the examination without protest should not have been granted any relief._ _**19** . A ruling of Justice M.P.Menon reported in Sambasivan & Others v. State Bank of Travancore (1987 KLJ 48) was also pressed into service by the learned senior counsel appearing for the University in order to refuse relief to the petitioners on the ground that having participated in the selection process and taken the chance of getting selected, the petitioners cannot thereafter be heard to complain that the method itself was illegal. In the above case, there was serious complaints against the Board of interview in the sense that the Board was influenced by the prejudice against Scheduled Caste/Scheduled Tribe candidates and that the interview was used as a method for rejecting them so that a few favourites of the management will get the promotion. In dealing with the above contention of the petitioners regarding the manner in which the interview was conducted, this Court observed that in such cases where the petitioners have participated in the selection process without any demur, are not entitled to invoke the extra ordinary and discretionary jurisdiction of this Court under Art.226 of the Constitution. Justice M.P. Menon lays emphasis on the fact that the relief is refused in such cases, not because that want of jurisdiction can be overlooked but because the conduct of the petitioners disentitle them from requesting the court even to examine the question of jurisdiction._ _**20** . The facts of the above two cases are clearly distinguishable from the facts of the present case. In these cases, the constitution of the selection committee was not known to the candidates. Only when they appeared for the interview, they knew who are all the members of the selection committee. Only thereafter, they_ **28** ## **W.P.(C)Nos.33208 & 35896 of 2016** _could gather information regarding the qualifications and other relevant factors about the members of the selection committee. Under these circumstances, we do not think that the theory of “sitting on the fence” can be applied in these cases. Moreover, in these cases, the learned Single Judge has already exercised the discretionary jurisdiction under Art.226 of the Constitution in favour of the petitioners even after noticing the above legal question. Therefore, unless it is shown to us that the above exercise of the discretionary jurisdiction is illegal, arbitrary or perverse, this Court sitting in appeal may not interfere with the judgment of the learned Single Judge (Please see State of Kerala v. Balakrishnan (1992 (1) KLT 420).”_ 29. In that view of the matter, I am of the opinion, if the writ petition is dismissed on that ground, justice would become a mockery and casualty leading to innumerable consequences. So also, it was held by a learned Single Judge in ' _**Sasikumar v. Mahatma**_ _**Gandhi University**_ ' [1997 (2) KLT 177] that the persons who have got the appointment by arbitrary selection are not entitled to claim the benefit of that selection. Bearing in mind all these legal and factual circumstances, it is clear that the appointments are made without following the procedure in accordance with law. 30. On evaluating the situations that are appreciated above, I am of the clear and considered opinion that the entire selection process to the post of Assistant Professors to various faculties conducted ## **W.P.(C)Nos.33208 & 35896 of 2016 29** by the 1[st] respondent University is totally in violation of the Minimum Qualification Regulations, 2010 and the University Act, 2013. Therefore, I have no hesitation, so far as the selection of respondents 3 to 12 are concerned, to hold that the same are totally illegal, arbitrary and unsustainable under law. In that view of the matter, the selection of the said respondents are quashed. But at the same time, even though the entire selection on the basis of the notification in question is sought to be quashed, I am reluctant to do so, since all the affected persons are not made parties in the writ petitions. However, I make it clear that, in order to conduct the classes, the University will be at liberty to make any contract appointments in accordance with law, which will be subject to the framing of Regulations, Ordinances, First Statute etc. etc. and any directions to be passed by this Court in W.P.(C) No.41752 of 2017, pending before a Division Bench of this Court. 31. So far as W.P.(C) No.35896 of 2016 is concerned, it is filed challenging the notification issued by the University, inviting applications to the posts of Professor, Associate Professor and Assistant Professor under different faculties. In my considered **W.P.(C)Nos.33208 & 35896 of 2016 30** opinion, in the said writ petition, the University is the only respondent and in accordance with the notification, selection to various faculties and posts were conducted by the University and appointments were made. However, none of the affected persons are impleaded in the said writ petition. In that view of the matter, the challenge made against the notification as such cannot be sustained under law, since if I do so, I am afraid, it would be overlooking the basic principles of natural justice. Therefore, I do not think petitioners are entitled to secure any relief of quashing the notification dated 22.07.2016. Resultantly, W.P.(C) No.33208 of 2016 will stand allowed and W.P.(C) No.35896 of 2016 will stand dismissed. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **W.P.(C)Nos.33208 & 35896 of 2016** **31** ## **APPENDIX OF WP(C) 33208/2016** ## **PETITIONER'S/S EXHIBITS:** |**P1**|**A TRUE COPY OF THE NOTIFICATION DATED**| |---|---| ||**22/07/2016.**| |**P2**|**TRUE COPY OF THE RELEVANT PROVISION OF UGC**| ||**REGULATION, 2010.**| |**P3**|**TRUE COPY OF THE RELEVANT PROVISION OF THE**| ||**UGC REGULATIONS, 2010.**| |**P4**|**TRUE COPY OF THE RELEVANT PROVISIONS OF THE**| ||**UGC REGULATIONS, 2010 PERTAINING TO**| ||**SELECTION PROCEDURE.**| |**P5**|**TRUE COPY OF APPENDIX III TABLE II (C) OF**| ||**UGC REGULATION, 2010.**| |**P6**|**TRUE COPY OF THE INTIMATION RECEIVED BY THE**| ||**IST PETITIONER DATED 19/09/2016.**| |**P7**|**A TRUE COPY OF THE APPLICATION FORMAT**| ||**PUBLISHED BY THE IST RESPONDENT UNIVERSITY.**| |**P8**|**A TRUE COPY OF THE ACADEMIC PERFORMANCE**| ||**INDICATOR PRODUCED BY THE IST PETITIONER.**| |**P9**|**TRUE COPY OF THE RANK LIST, DATED**| ||**07/10/2016.**| |**P10**|**A TRUE COPY OF THE ORDER, DATED 02-04-2018**| ||**IN WP(C)41752 OF 2017.**| |**P11(A)**|**A TRUE COPY OF THE RTI APPLICATION, DATED**| ||**18-10-2016.**| |**P11(B)**|**A TRUE COPY OF THE REPLY RECEIVED DATED**| ||**28.11.2016.**| |**P12 (A)**|**A TRUE COPY OF THE APPLICATION, DATED**| ||**12-10-2016 UNDER THE RTI ACT.**| |**P12 (B)**|**A TRUE COPY OF THE REPLY RECEIVED, DATED**| ||**28-10-2016.**| |**P13**|**A TRUE COPY OF THE SCORING SHEET USED BY**| ||**THE RESPONDENT UNIVERSITY DURING SELECTION**| ||**PROCEDURE OF ASSISTANT PROFESSOR**| ||**ENVIRONMENTAL STUDIES OBTAINED UNDER RTI**| ||**ACT, 2005.**| **W.P.(C)Nos.33208 & 35896 of 2016** **32** ## **P14** **A TRUE COPY OF THE SCORE SHEET ADOPTED DURING THE SELECTION PROCEDURE BY AN AIDED COLLEGE IN THE STATE AS PRESCRIBED BY THE UGC REGULATIONS, 2010.** **RESPONDENTS' EXHIBITS: EXHIBIT-R1(A) TRUE COPY OF THE NOTIFICATION DATED 22.07.2016 PUBLISHED IN THE WEBSITE. EXHIBIT-R1(B) TRUE COPY OF THE RELEVANT PORTION OF THE STATUTE. EXHIBIT-R1(C) TRUE COPY OF THE RANK LIST PREPARED BY THE SELECTION COMMITTEE DATED 07.10.2016 AND PUBLISHED IN THE WEBSITE. EXHIBIT-R1(D) TRUE COPY OF THE APPOINTMENT ORDER NO.481/2016/V.C. DATED 13.10.2016. EXHIBIT-R1(E) TRUE COPY OF THE APPOINTMENT ORDER NO.481/2016/V.C. DATED 13.10.2016. EXHIBIT-R1(F) TRUE COPY OF THE APPOINTMENT ORDER NO.481/2016/V.C. DATED 13.10.2016. EXHIBIT-R1(G) TRUE COPY OF THE APPOINTMENT ORDER NO.481/2016/V.C. DATED 13.10.2016. EXHIBIT-R1(H) TRUE COPY OF THE APPOINTMENT ORDER NO.481/2016/V.C. DATED 13.10.2016. EXHIBIT-R1(I) TRUE COPY OF THE APPOINTMENT ORDER NO.481/2016/V.C. DATED 13.10.2016. EXHIBIT-R1(J) TRUE COPY OF THE APPOINTMENT ORDER NO.481/2016/V.C. DATED 13.10.2016. EXHIBIT-R1(K) TRUE COPY OF THE APPOINTMENT ORDER NO.481/2016/V.C. DATED 13.10.2016. EXHIBIT-R1(L) TRUE COPY OF THE APPOINTMENT ORDER NO.481/2016/V.C. DATED 13.10.2016. EXHIBIT-R1(M) TRUE COPY OF THE APPOINTMENT ORDER NO.481/2016/V.C. DATED 13.10.2016. //TRUE COPY// P.S. TO JUDGE St/-** **W.P.(C)Nos.33208 & 35896 of 2016** **33** ## **APPENDIX OF WP(C) 35896/2016** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE NOTIFICATION, DATED 22-07-2016.** **EXHIBIT P2 A TRUE COPY OF THE SYLLABUS DESIGNED FOR THE COURSE M.A LOCAL DEVELOPMENT STUDIES IN THE 1ST RESPONDENT UNIVERSITY.** **EXHIBIT P3 A TRUE COPY OF THE RELEVANT PAGE FROM UGC REGULATIONS, 2010.** **RESPONDENTS' EXHIBITS:** **EXHIBIT R1(A) TRUE COPY OF THE NOTIFICATION DATED 22.07.2016 PUBLISHED IN NEWSPAPER AND THE WEBSITE.** **EXHIBIT R1(B) TRUE COPY OF THE RESERVATION ROSTER.** **EXHIBIT R1(C) TRUE COPY OF THE ORDER NO.198/2016/VC DATED 27.02.2016 PASSED BY THE UNIVERSITY.** **//TRUE COPY//** **P.S. TO JUDGE** **St/-**