Dr. Seena J v University of Calicut & Others

**WP(C) NO. 15144 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 13[TH] DAY OF JANUARY 2022 / 23RD POUSHA, 1943 WP(C) NO. 15144 OF 2021** ## **PETITIONER:** DR.SEENA J AGED 34 YEARS D/O LATE M.A JOHNSON, SWASTHIKA, THOTTILPEEDIKA ROAD, CHEVARAMBALAM P.O., CALICUT DISTRICT, PIN CODE-673 017. BY ADVS. SIMLA PRABHAKARAN MAHIN PRABHAKARAN BABILA K.K. K.V.PRAVEEN **RESPONDENTS:** 1 UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY, THENJIPPALAM, KERLA, PIN-673 635. 2 VICE-CHANCELLOR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY, THENJIPPALAM, KERALA, PIN-673 635. 3 REGISTRAR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY, THENJIPPALAM, KERALA, PIN-673 635. 4 DR. NUAIMAN K.A, ASSISTANT PROFESSOR, DEPARTMENT OF JOURNALISM & MASS COMMUNICATION, UNIVERSITY OF CALICUT, THENJIPPALAM, KERALA, PIN-673 635. BY ADVS. SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY T.B.HOOD M.ISHA AMAL KASHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 15144 OF 2021** **2** ## **“CR”** ## **JUDGMENT** The 4th respondent, Dr. Nuaiman K.A was appointed to the post of Assistant Professor (Journalism) in the Department of Journalism and Mass Communication, Calicut University. The petitioner, an aspirant to the very same post, seeks to quash Exhibit P3 minutes of the Syndicate Committee, resolving to appoint the 4th respondent and also Exhibit P4 consequential order passed by the 1st respondent. ## 2. The brief facts are as under: Applications were invited to the Post of Assistant Professor in Journalism pursuant to Exhibit P1 notification issued by the 3rd respondent. Two vacancies were notified for the post of Assistant Professor (Journalism) and it was mentioned therein that the appointment would be made from the rank list itself. The petitioner being a person eminently qualified for the post put in her application as a candidate in the General Category and took part in the interview. Exhibit P2 is the Rank List published on the website of the University which reveals that she was ranked No.3. According to the petitioner, the 4th respondent is a Muslim Reservation Candidate and he is seen to have been placed as Rank No.1 in Exhibit P2 Rank List. It is contended that as per the reservation roster, the post had to be given to a **WP(C) NO. 15144 OF 2021 3** General Candidate and not to a Muslim Reservation Candidate. The syndicate meeting held on 30.1.2021 resolved to appoint the 4th respondent against the open (permanent) vacancy based on the recommendations of the Select Committee and Exhibit P3 is the copy of the minutes. The Rank List was published in the web site of the University only on 4.2.2021. However, much prior to the said date, the 4th respondent signed on the attendance register. This would amply demonstrate that the 4th respondent is a predetermined candidate and his appointment was carried out in an objectionable and fraudulent manner. As the petitioner was placed No.3 in the Rank List and as she is an open category candidate, she should have been given appointment instead of the 4th respondent. It is stated that the appointment was not made in a transparent manner and in clear violation of the UGC guidelines and Regulations. Though the petitioner requested the University to furnish her the details of the marklist of the candidates, the same was denied. It is on these allegations that this Writ Petition is filed seeking the following reliefs: - i. Issue a writ of certiorari or any other appropriate writ, order or direction to quash item 2021.112 dated 31.01.2021 in Exhibit P-3 minutes and Exhibit P-4 order passed by the 1st Respondent University Syndicate and consequential appointment of Respondent No.4 in the post of Assistant Professor (Journalism) in the Department of Journalism and Mass Communication, Calicut University. - ii. Issue a writ of mandamus or any appropriate writ, order or direction to the 1st Respondent University to revoke the appointment of Respondent No.4 **WP(C) NO. 15144 OF 2021** **4** in the post of Assistant Professor (Journalism) in the Department of Journalism and Mass Communication, Calicut University. iii. Declare that the selection and appointment of Respondent No.4 in the post of Assistant Professor (Journalism) in the Department of Journalism and Mass Communication, Calicut University is null and void. 3. A counter affidavit has been filed on behalf of respondents 1 to 3. In the counter affidavit, it is stated that the petitioner was an applicant to the post of Assistant Professor in Journalism pursuant to a notification issued by the University. After a due process of selection, the rank list was published on 31.12.2019. The petitioner herein was included as Serial No.3 in the Rank List. It is contended that a duly constituted Selection Committee conducted the interview and the Rank List was prepared purely based on merit. According to the respondents, as per Section 6 (2) of the University Act, the appointment of Assistant Professor in the Universities is to be made by clubbing together all the teaching departments as one unit for the purpose of applying the rules of reservation and rotation. The turns of filling up the vacancies in the Department of Journalism are 29 and 51A. While the 29th turn is earmarked for Open Competition Candidates, 51A would go to a Physically Challenged person. It is contended that as the 4th respondent was selected on the same standard as applied to General Category and as he stood first in the Rank List, he is bound to be treated as an own merit candidate. It is further stated that the petitioner is not entitled to get appointment, as the 4th respondent, who **WP(C) NO. 15144 OF 2021** **5** is the appointee, is the first rank holder in an open competition and the second vacancy would go to a physically challenged person as per the roster. 4. In the counter affidavit filed by the 4th respondent, it is stated that the 4th respondent was appointed as Assistant Professor by Ext.P4 order in the open vacancy. It is the contention of the 4th respondent that he being a candidate who qualifies on merit, he is entitled to occupy the general category even though he belongs to a reservation category. It is further stated that Exts.R4(a) to R4(h) would show the credibility and qualifications of the 4th respondent and the assertions to the contrary made by the petitioner in the writ petition are untenable. The 4th respondent has also stated that pursuant to the decision taken as per Ext.P3 minutes, the 4th respondent was served with an email and it was in the said circumstance that he had joined duty on 01.02.2021. 5. I have heard Smt. Simla Prabhakaran, the learned counsel appearing for the petitioner, Sri. P.C. Sasidharan, the learned Standing Counsel appearing for the University and Sri. Amal Kasha, the learned counsel appearing for the 4th respondent. 6. The prime contention of the petitioner is that the 4th respondent is a reservation candidate and that he was fraudulently appointed in the open category. From the assertions made in the counter affidavit filed by respondents 1 to 3, it is obvious that the 4th respondent was selected on the **WP(C) NO. 15144 OF 2021** **6** same standard as applied to the general category and he stood first in the General Merit List. It is by now settled without any pale of doubt that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the Constitutional mandate enshrined in Article 16(4). 7. In **Indra Sawhney & Ors.** vs. **Union of India & Ors.** (1992 Suppl. (3) Supreme Court Cases 217), the Apex Court held as follows in paragraph 811 of the judgment:- "In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates." 8. In **Ritesh R. Sah vs Dr. Y.L. Yamul & Ors** 1996 SCC (3) 253, the Apex Court, following **Indra Sawhney** (supra) reiterated the very same principles. 9. It appears that the petitioner has preferred the writ petition on the premise that the 4th respondent was selected not on his own merits but in his status as a muslim reservation candidate. From the records, it has turned out that this is nothing but a misconception on the part of the petitioner. The **WP(C) NO. 15144 OF 2021** **7** substratum of the case set up by the petitioner falls to the ground as a result. 10. The next contention advanced by the learned counsel for the petitioner is that the syndicate had not approved the recommendations of the selection committee. I find from Ext.P3 extract of the minutes of the syndicate committee that the Syndicate considered the recommendation of the Selection committee for the post of Assistant Professor (Permanent) in the Department of Journalism and resolved to approve the recommendations of the selection committee and to approve the rank list for the post of Assistant Professor and to appoint the 4th respondent in the post of Assistant Professor. In that view of the matter, the 2nd contention raised by the petitioner also cannot be sustained. 11. The 3rd contention advanced by Miss. Simla Prabhakaran is that though the details of appointment of the 4th respondent was uploaded in the website only on 04.02.2021, much prior to that the 4th respondent had signed on the attendance register. As is borne out from Exhibit P4, the 4th respondent was informed that he has been selected for appointment as Assistant Professor in the Department of Journalism and Mass Communication against a permanent open vacancy and by a memo dated 30.1.2021 sent by email, he was asked to report before the registrar within a period of 15 days. The 4th respondent joined duty with effect from the FN of 1.2.2021. There could have been some delay in publishing the rank list in the official website **WP(C) NO. 15144 OF 2021** **8** and in the facts and circumstances, I don’t find that the same is a pertinent enough reason to unsettle the appointment granted to the 4th respondent. In view of the discussion above, I do not think that the petitioner has made out a case for interference. This writ petition is dismissed. No costs. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** NS **WP(C) NO. 15144 OF 2021** **9** ## **APPENDIX OF WP(C) 15144/2021** PETITIONER'S EXHIBITS: Exhibit P1 TRUE COPY OF NOTIFICATION NO.GA11/C1/156687/2019/ADMN DATED 31.12.2019 ISSUED BY THE 3RD RESPONDENT Exhibit P2 TRUE COPY OF THE RANK LIST ISSUED AS NOTIFICATION NO.GA.II/C1/156687/2019/ADMN DATED 31.12.2019 ISSUED BY THE 2ND RESPONDENT Exhibit P3 TRUE COPY OF THE EXTRACT OF THE MINUTES OF THE SYNDICATE COMMITTEE AS ITEM 2021.112 DATED 30.1.2021 ISSUED BY THE 1ST RESPONDENT Exhibit P4 TRUE COPY OF THE LETTER U.O.NO. 2867/2021/ADMN DATED 5.3.2021 ISSUED BY THE ASST. REGISTRAR CALICUT UNIVERSITY Exhibit P5 TRUE COPY OF THE RELEVANT PORTION OF THE UGC REGULATION 2018 Exhibit P6 TRUE COPY OF THE RTI LETTER DATED 8.2.2021 SENT BY THE PETITIONER TO THE PUBLIC INFORMATION OFFICER, CALICUT UNIVERSITY Exhibit P7 TRUE COPY OF THE REPLY LETTER NO.56084/VCASST-3/2021/ADMN DATED 20.3.2021 ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT Exhibit P8 TRUE COPY OF THE RTI REPLY RECEIVED BY THE PETITIONER DATED 7/3/2021 FROM THE RESPONDENT UNIVERSITY. Exhibit P9 TRUE COPY OF THE RTI REPLY RECEIVED BY THE PETITIONER DATED 12/3/2021 FROM THE RESPONDENT UNIVERSITY. Exhibit P10 TRUE COPY OF THE RTI REPLY RECEIVED BY THE PETITIONER DATED 17/3/2021 FROM THE RESPONDENT UNVERSITY. **WP(C) NO. 15144 OF 2021** **10** Exhibit P11 TRUE COPY OF THE ATTENDANCE REGISTER OF THE DEP. OF JOURNALISM AND MASS COMMUNICATION IN THE MONTH OF FEBRUARY OF THE RESPONDENT UNIVERSITY. Exhibit P12 TRUE COPY OF THE INTERIM ORDER DATED 12/8/2021 IN WP(C) 16456/2021 PASSED BY THIS HONOURABLE COURT. RESPONDENTS' EXHIBITS: EXHIBIT R4(a) TRUE COPY OF THE MASTER OF ARTS CERTIFICATE ISSUED BY THE UNIVERSITY OF HYDERABAD EXHIBIT R4(b) TRUE COPY OF THE DOCTOR OF PHILOSOPHY CERTIFICATE ISSUED BY THE UNIVERSITY OF HYDERABAD. EXHIBIT R4(c) TRUE COPY OF THE NATIONAL ELIGIBILITY TEST CERTIFICATE ISSUED BY THE UNIVERSITY GRANTS COMMISSION. EXHIBIT R4(d) TRUE COPY OF THE LETTER OF INVITATION ISSUED BY THE CENTRE OF SOUTH ASIAN STUDIES, UNIVERSITY OF CAMBRIDGE EXHIBIT R4(e) TRUE COPY OF THE CERTIFICATE OF VISITING DOCTORAL FELLOWSHIP ISSUED BY THE FREIE UNIVERSITAT, BERLIN EXHIBIT R4(f) TRUE COPY OF THE CERTIFICATE ISSUED BY CURTIN UNIVERSITY, MALAYSIA. EXHIBIT R4(g) TRUE COPY OF THE CERTIFICATE ISSUED BY THE INDIAN INSTITUTE OF TOURISM AND TRAVEL MANAGEMENT, NELLORE EXHIBIT R4(h) TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE 1ST RESPONDENT UNIVERSITY.