Dr. Sonia K. Das v. Cochin University of Science and Technology and Mrs. Vani Kesari A.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 13[TH] DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943** ## **WP(C) NO. 7115 OF 2009** ## **PETITIONER/S:** DR.SONIA K.DAS, 'PRATHIBHA NIVAS', R.S.ROAD, OTTAPPALAM, PALAKKAD- 01. BY ADV P.RAMAKRISHNAN ## **RESPONDENT/S:** 1 COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY, KOCHI - 682 022, REPRESENTED BY ITS REGISTRAR. 2 MRS.VANI KESARI.A., LECTURER SCHOOL OF LEGAL STUDIES, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI - 682 022. BY ADVS. SRI S.P ARAVINDAKSHAN PILLAI, SC COCHIN UNIERSITY OF SCIENCE AND TECHNOLOGY SRI ELVIN PETER P.J. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 7115 OF 2009** **2** ## **JUDGMENT** Notification dated 30.12.2008, Ext.P3 rank list whereby the private respondent were appointed as Category C Lecturer in Administrative Law in School of Legal Studies along with an order dated 3.11.2008, Ext.P4 of Cochin University of Science and Technology, have been assailed in this writ petition. 2. Succinctly, the facts in brief are that the petitioner had been selected as Assistant Director of National Law School, Bangalore. Pursuant to the notification dated 14.10.2008 issued by the Cochin University for appointment to the post of Category C Lecturer, submitted an application was called for an interview on 29.12.2008 and interviewed by selection committee consisting of Vice Chancellor, Syndicate member, Director of School of Legal Studies, Principal of the Government Law College, Thiruvananthapuram and Pro Vice chancellor of Mahatma Gandhi University. Vide notification dated 30.12.2008, the University published a rank list whereby second respondent got the benefit and joined as Lecturer in Administrative Law. On the basis of **WP(C) NO. 7115 OF 2009** **3** enquiry it surfaced that the selection committee was constituted as per the University Order dated 3.11.2008, which had not followed any fixed guide lines for awarding marks in the interview. An application under the Right to Information Act was submitted to the Registrar, Cochin University of Science and Technology by raising certain questions with regard to applicability of the guide lines, awarding of marks, split up details of the marks, composition of the selection committee, subject specialization of the experts etc., Ext.P6. 3. Public Information Officer of the University vide reply dated 2.2.2009 informed the petitioner that the University had not issued any order regarding the guidelines to be followed for awarding 'index mark' and as per the information petitioner was not awarded any marks for the following qualifications/achievements: i. Junior Research Fellow Award, which is a higher qualification than NET (NET is only an eligibility qualification) since it is awarded only to those who achieve top ranking in the Nation wide Eligibility Test **WP(C) NO. 7115 OF 2009** **4** (NET) ii. Research experience of 3 years iii. 3[rd] Rank with distinction in LL.M, iv. Acceptance letter by universities, which are considered as paper publication, v. Selection as Assistant Director in National Law School, Bangalore. 4. Ext.P9 mark sheet of the 2[nd] respondent reveals that respondent No.2 was granted 20 marks for teaching/research experience, which is the maximum which could not be granted. Respondent No.2 has no research experience. Her experience as a teacher was only for two and a half years as she joined M.G University as a teacher only in the mid 2006. The maximum marks she could have attained for teaching/research experience was 8, whereas the petitioner had 3 years research experience as well as 3 years teach experience in regular post has been credited with only 12 marks. 5. Learned counsel for the petitioner submitted that the selection was vitiated as the constitution of the select committee **WP(C) NO. 7115 OF 2009** **5** was illegal and was intended only to favour the selected candidate. Neither Sri.Jose T Manjooran nor Smt. Usha were experts in Administrative Law, the specialized field. University was unaware of the specialization of the experts as per the information under the RTI, Ext.P7. All the selection and appointments in the University after the issuance of GO dated 21.12.1999 and coming into force of UGC Regulation 2000, respondent University could not have resorted to Statute 6 of the CUSAT First Statute 1991, for constitution of the Select Committee. UGC Regulations 2000 made under powers conferred by Section 26(i) read with Section 14 of the UGC Act 1956 have statutory force. Sub clause 2 of clause 3 of Annexure to the regulation, required the presence of the Vice Chancellor, three experts in the concerned subjects, Dean of the Faculty/head/Chairperson of the Department and an Academician nominated by the Chancellor in the Select Committee for selection and appointment of lecturers in Universities. Clause 1(ii) of UGC Regulation 2000 mandates that the Regulation would apply to 'every University established or incorporated by or **WP(C) NO. 7115 OF 2009** **6** under a Central Act, or a State Act'. The Selection committee was to be constituted in accordance with CUSAT Statute 1991; the select committee constituted for the selection in pursuance of Ext.P1 was not in accordance with Statute 6. As per statute 6, two subject experts were to be chosen by the Syndicate. But in relation to the selection impugned herein, the experts were chosen by the Vice Chancellor as per Ext.P7. As per Section 5 of Section 31 of the CUSAT Act 1986, the procedure to be followed by each selection committee for selection of candidate. The respondent University followed a set pattern in the matter of awarding marks at the time of selection to various posts. But for the selection in pursuance of Ext.P1, the University brought in innovations, evidently intended to help the selected candidate. 6. In support of the aforementioned submissions, reliance has been laid to Full Bench judgment of this Court in _**Radhakrishnan Pillai v. Travancore Devaswom Board [2016**_ _**(2) KLT 245)**_ where it has been held that irrespective of whether the University Acts enacted under Entry 25 of List III or the Statutes framed thereunder are amended in line with the UGC **WP(C) NO. 7115 OF 2009** **7** Regulations or not, once the State of Kerala had effected the UGC Regulations with effect from 18.9.2010 ie., 2010 Regulations, the Universities and affiliated colleges in Kerala State are bound to comply with the UGC Regulations, 2010. 7. In _**Keshav Mohan v. University of Kerala [2009 (4) KLT 573]**_ Full Bench decision of this Court, wherein in respect of appointment to the post of Controller of Examinations, it was held that the selection committee will not have any inherent jurisdiction or authority to evolve its own norms of for conducting selection. 8. On the other hand, learned counsel for the first respondent countered the aforementioned argument. He submitted that as per Section 31(1) of the Cochin University of Science and Technology Act 1986 (1986 Act), the Vice Chancellor shall constitute, from time to time, separate Selection Committees for the purpose of selection of candidates for appointment to the posts of Professor, Reader, Lecturer etc. The selection committee for the selection of Category C Lecturer in the School of Legal Studies of the University was constituted as **WP(C) NO. 7115 OF 2009** **8** per the 1986 Act. The nomination of the members to the Committee was left to the Vice Chancellor. The Committee was constituted strictly under the provisions of Section 31(2)(b) of the Act and Statute 6(b) of the Cochin University of Science and Technology First Statutes, 1991. Prof. S.Usha, Principal, Government Law College and Prof. Jose T.Manjooran, Retired Principal, Government Law College and former Pro Vice Chancellor, Mahatma Gandhi University were the subject experts. The petitioner did not raise any objection to her being interviewed by a Selection Committee constituted as per Section 31(2)(b) of the CUSAT Act, 1986. Having successfully participated in the process of selection without any demur the petitioner is estopped form challenging the selection process. Cochin University vide communication dated 3.11.2008 informed the Secretary of the Government on the subject of inconsistency in the constitution of selection committee for appointment of teachers and requested the Government to incorporate the guidelines of UGC in Section 31 of the University Act. The judgment of the full Bench was taken to Supreme Court as **WP(C) NO. 7115 OF 2009** **9** Special Leave Petition Nos. 18938-18942/2017 wherein by invoking the jurisdiction under Article 142 of the Constitution of India, passed a direction that the regulation 2010 would be effective from the date of passing of the judgment ie., 23.2.2016. The selection of the Board was not against the statute as alleged. 9. On the other hand, Learned counsel appearing on behalf of the second respondent submitted that as per the order dated 21.12.1999 as referred to in paragraph 6 of the writ petition clearly specified that the direct recruitment to the post of lecturers, readers and professors in the Universities and Colleges shall be on the basis of merit through all India advertisement and selections by the duly constituted selection committee to be set up under the statute /ordinances of the concerned University. It is well settled law that the candidate, when not selected, is not permitted to challenge the constitution of selection committee and the procedure followed, after participating in the selection process. This position has been reiterated in _**(2007) 8 SCC 100 (Union of Inida v. S.Vinodh Kumar and others)** ,_ _**(1998) 3 SCC 694 (Union of India and another v. Chandrasekharan**_ **WP(C) NO. 7115 OF 2009** **10** _**and others)** ,_ _**(1997) 4 SCC 426 (University of Cochin v. N.S Kanjoonjamma and others), Basavaiah (Dr.) v. Dr. H.L Ramesh and Others (2010) 8 SCC 372, D.Sarojakumari v. R.Helen Thilakom and Others (2017) 9 SCC 478, Sudhakaran v. University of Kerala (2005) 1 KLT 133.**_ In Sudhakaran (supra), while considering the provisions under Section 26(3) of UGC Act, 1956, it was held that the constitution of the selection committee by the laws in force as regards the University of Kerala, which appears to be in variance with the UGC Regulations is not invalid and is also not retrospective. 10. I have heard the learned counsel for the parties and appraised the paper book. Both sides relied upon the order dated 21.12.1999. Clause 6.1 of the said Government order on the subject of 'Recruitment and Qualifications' is required to be extracted. The same reads as follows: 'The direct recruitment to the post of Lecturers, Readers and Professors in the Universities and Colleges shall be on the basis of merit through All India Advertisement and selection by the duly constituted Selection Committee to be set up under the Statutes/Ordinances of the concerned University. Such committee should have a minimum of three experts, the head of the concerned department and the Principal of the concerned College (in case of selection of college teachers). **WP(C) NO. 7115 OF 2009** **11** From the perusal of the same, it is evident that the constitution of the selection committee is to be set up under the statutes/ordinances of the concerned university and the committee should have a minimum of three experts, the head of the concerned department and the Principal of the concerned college. As per the information received under the RTI, the committee was of following persons: 1. Dr. Gangan Prathap, Vice chancellor, CUSAT (Chairman) 2. Dr. Joy Job Kulavelil, Member, Syndicate, CUSAT 3. Dr.D Rajeev, Director, School of Legal Studies 4. Smt.S.Usha, Principal, Govt. law College, Thiruvananthapuram 5. Sri. Jose T Manjooran, Former Pro Vice Chancellor, MG University Persons at Sl.No.4 and 5 are the subject experts. Syndicate in the meeting held on 21.11.2008 as per special item No.12 resolved to authorize the Vice Chancellor to nominate experts for various subjects. It is on that ground, the Vice Chancellor nominated Prof.Jose T Manjooran and Prof. S.Usha as experts for **WP(C) NO. 7115 OF 2009** **12** the selection to the post of Lecturer in Administrative Law. Petitioner as per the averment in the writ petition has already been appointed as Assistant Director of National Law School, Bangalore. No malafides has been attributed against the constitution of the selection committee. In the judgment cited on behalf of the respondent No.2, ibid, it is impermissible to interfere the recommendations of the expert committee, particularly, when no malafides has been alleged against the expert in the selection committee. From the entire tenor and mode of the pleadings, none of the paragraphs attribute any malafides. Sub Section (5) of Section 31 of the CUSAT Act 1986, prescribes that the Vice Chancellor shall, in consultation with the Syndicate constitute from time to time, shall constitute separate Selection Committees for the purpose of selection of candidates for direct recruitment to the posts. The same reads as under: ## **1.31. Constitution of Selection Committees:-** 1. The Vice Chancellor shall, in consultation with the Syndicate constitute from time to time, separate Selection Committees for the purpose of selection of candidates for direct recruitment to the posts of - i. Professor, Reader ii. Lecturers and other posts not being posts of non-teaching staff. iii. Non-teaching staff. **WP(C) NO. 7115 OF 2009** **13** 2. The Selection Committee shall consist of- a. in the case of the Selection Committee for selection of Professors and Readers:- xxxxx xxxxx b. in the case of the Selection Committee for selection of Lecturers and other teaching staff:- i. the Vice-Chancellor, Ex-Officio Chairman ii. One member of the Syndicate nominated by the Vice-Chancellor iii. two subject experts not being in the service of the University chosen by the Syndicate iv. the Head of the concerned department or Professor-incharge. Thus the constitution of the committee as reflected in the information under the RTI, Ext.P7 was in accordance with the provisions of the statute. There is no dispute in the proposition of law laid down in the judgment cited by the petitioner but the fact remains that the petitioner had participated in the selection process and did not question the formation of the selection committee. Thus the contention that the committee should have been as per the provisions of clause 3.2.0 of UGC Regulations 2010 is hereby rejected. I do not find any merit in the writ petition and is accordingly dismissed. Sd/- sab **AMIT RAWAL** **JUDGE** **WP(C) NO. 7115 OF 2009** **14** ## **APPENDIX OF WP(C) 7115/2009** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF NOTIFICATION DATED 14.10.2008 ISSUED BY THE 1ST RESPONDENT UNIVERSITY. Exhibit P2 TRUE COPY OF NEWS ITEM REPORTED IN THE NEW INDIAN EXPRESS DAILY OF 18.12.2008. Exhibit P3 TRUE COPY OF NOTIFICATION DATED 30.12.2008 ISSUED BY THE 1ST RESPONDENT. Exhibit P4 TRUE COPY OF UNIVERSITY ORDER DATED 03.11.2008. Exhibit P5 TRUE COPY OF THE EXISTING NORMS FOR AWARDING MARKS IN THE INTERVIEW. Exhibit P6 TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT TO THE REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY. Exhibit P7 TRUE COPY OF REPLY DATED 02.02.2009 FROM THE PUBLIC INFORMATION OFFICER. Exhibit P8 TRUE COPY OF MARK SHEET OF THE PETITIONER. Exhibit P9 TRUE COPY OF MARK SHEET OF THE 2ND RESPONDENT. RESPONDENT EXHIBITS Exhibit R1 (A) TRUE COPY OF THE LETTER DATED 16.07.2008 OF THE REGISTRAR, NATIONAL LAW SCHOOL OF INDIA UNIVERSITY ADDRESSED TO THE PETITIONER. Exhibit R1 (B) TRUE COPY OF THE LETTER NO.REC./TEACHING/08 DATED 03.11.2008. Exhibit R1 (C) TRUE COPY OF THE MEMO NO.REC./1201/SLS/06 DATED 04.12.2008 FROM THE UNIVERSITY.