Dr. Sudheep N.M. v State Medicinal Plants Board, Kerala & Others

WP(C).No.33790 OF 2019 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 12TH DAY OF AUGUST 2020 / 21ST SRAVANA, 1942** ## **WP(C).No.33790 OF 2019(W)** ## **PETITIONER/S:** **DR. SUDHEEP N.M. AGED 39 YEARS S/O. VISHNU NAMBOODIRI, NAGAMANGALAM ILLOM, KANKOLE. P.O. (VIA), PAYYANNUR, KANNUR DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.S.SHYAM KUMAR** ## **RESPONDENT/S:** **1 STATE MEDICINAL PLANTS BOARD,KERALA, THIRUVAMBADY P.O. SHORNUR ROAD, THRISSUR 680 022, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 2 THE CHIEF EXECUTIVE OFFICER,CHAIRMAN, INTERVIEW COMMITTEE FOR SELECTION TO THE POST OF JUNIOR SCIENTIFIC OFFICER, STATE MEDICINAL PLANTS BORD, KERALA, THIRUVAMBADY P.O. SHORNUR ROAD, THRISSUR 680 022. 3 STAE OF KERALA,REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 4 DR. PIUS O.L.,OLAKKENGIL HOUSE, SOUTH BAZAR, ARNOS NAGAR, VELUR P.O. 680 601, THRISSUR. BY ADV. SRI.B.RAGHUNATHAN BY ADV. SRI.M.SALIM BY ADV. SRI.K.JALADHARAN BY ADV. SRI.V.M.JACOB BY ADV. SRI.STANLY CHAZHOOR BY ADV. SRI.B.BIPIN BY ADV. SRI.SHOBY K.FRANCIS OTHER PRESENT:** **SRI.SUNIL KUMAR KURIAKOSE, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.08.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.33790 OF 2019 2 ## **JUDGMENT** Dated this the 12[th] day of August 2020 The petitioner is aggrieved by the selection and appointment granted to the 4[th] respondent to the post of Junior Scientific Officer in preference to him. 2. As per Ext.P1 notification, the 1[st] respondent invited applications for appointment to the post of Junior Scientific Officer from among candidates having qualification of M.Sc Degree in Botany with not less than 55% marks from a recognised University and with atleast three years research experience in the field of medicinal plants in Government recognised institution. The petitioner submitted Ext.P2 application. He has passed B.Sc in Botany from Kannur University and M.Sc in Bioscience from Mangalore University which is equivalent to M.Sc in Botany, as per Ext.P3(a) equivalency certificate issued by the University of Kerala. Apart from that he is having Ph.D and he has Post Doctoral Fellowship and teaching experience in Central University of Kerala. Apart from Ext.P2 application he also submitted Ext.P5 curriculum vitae on 28.11.2019 furnishing his qualification as well as research experience in detail. An interview was held on 19.09.2019. The petitioner submits that as the rank list was not published, on enquiry, he was given to understand that the 4[th] respondent was going to be appointed. Thereupon he submitted Ext.P6 representation dated 12.11.19 WP(C).No.33790 OF 2019 3 pointing out the possibility of manipulation in the rank list at the instance of the 4[th] respondent. The petitioner points out that interview lasted only for 10-15 minutes and nothing was asked on merits; not even anything regarding the Ph.D. However after he submitted the representation Ext.P8 rank list dated 19.09.2019 was published in which the 4[th] respondent was ranked no.1 and the petitioner was ranked no.2. According to the petitioner, the rank list was not published in the official website of 1[st] respondent till 03.12.2019. 3. The Writ Petition was filed at that stage alleging that the petitioner is having more and better qualification than the 4[th] respondent whereas 4[th] respondent was given more marks in the interview. He also alleged that arbitrary criteria of awarding marks in the interview was done in order to suit the 4[th] respondent. It was also stated that though both petitioner and 4[th] respondent were Ph.D holders, the petitioner was given only 8 marks for Ph.D whereas the 4[th] respondent was given 12 marks. Similarly the petitioner was not given any marks for experience. Therefore the petitioner submits that there is no reasonable basis for not awarding full marks for PhD. It is also pointed out that despite his research experience since 2013 he was denied marks for the same illegally. 4. The 1[st] respondent has filed a counter affidavit producing Ext.R1(a) mark sheet showing the marks of all the 5 candidates included in the rank list. The marks awarded to the WP(C).No.33790 OF 2019 4 petitioner and 4[th] respondent under each head is as given below. |Name|Qua<br>lif<br>ica<br>tio<br>n<br>Mar<br>ks<br>50|Ph.D in<br>Medicai<br>nal<br>Plants<br>Marks<br>12|NET/S<br>ET<br>Mark3|Experience<br>in<br>Medicianal<br>Plants<br>Marks 5|Public<br>ation<br>mark 5|Award/P<br>aper<br>presnta<br>tion|Interview<br>performan<br>ce<br>and<br>suitabili<br>ty<br>for<br>the job<br>mark 30|Total| |---|---|---|---|---|---|---|---|---| |Petitioner|33|8|0|0|5|5|19|70| |4th<br>Respondent|29|12|3|5|4|3|16|72| 5. It is stated that the distribution of marks for the selection was notified to the candidates well before the interview and petitioner had not raised any objection to it. The 1[st] respondent has stated that a selection committee was constituted for conducting the selection of Junior Scientific Officer; pursuant to the notification inviting applications issued on 10.06.2019; 59 applications were received out of which 33 were found to be eligible and they were called for interview. In the interview scheduled on 19.09.2019, 21 candidates appeared. The selection committee which conducted the interview consisted of Chief Executive Officer of 1[st] respondent, Additional Secretary, Ayush Department, Sri.K.V.Govindan, Executive member, SMPB and Dr.Mathew Dan and Subject Expert from JNTBGRI. It is stated that the criteria for selection was academic merit, research experience in the field of medicinal plants, published research papers and books and participation and presentation in national and international seminars and workshops on medicinal plant related topics and performance in WP(C).No.33790 OF 2019 5 the interview. Select list was prepared on the basis of merit and 5 candidates were included in the main list and 16 candidates in the supplementary list with 4[th] respondent as rank No.1 and petitioner as rank No.2. The 1[st] respondent has stated that the basic qualification for the post in Ext.P1 notification is M.Sc Degree in Botany with not less than 55% marks from a recognised University. But the qualification of petitioner is M.Sc in Bio Science. The notification does not mention about any course/degree equivalent to M.Sc Botany. However it is stated that the candidature of the petitioner was considered by the selection committee on merit. In the case of the 4[th] respondent it is stated that he has been working as Technical Assistant under the 1[st] respondent since the year 2002 and he has got all qualifications and experience prescribed for the post. According to them there is no basis for the complaint raised by the petitioner in the representation or in the Writ Petition. It is stated that the selection committee has evaluated merit of all candidates before finalisation of selection; marks were awarded after taking into account all the relevant matters. It is stated that marks were awarded for NET/SET as the Junior Scientific Officer has to conduct awareness programmes about medicinal plants sector and marks were given to all candidates who were having NET/SET. It is also pointed out that the petitioner's allegation that interview marks were fixed to suit selection of the 4[th] respondent is baseless as petitioner himself got 19 marks WP(C).No.33790 OF 2019 6 out of 20 marks in the interview whereas the 4[th] respondent got only 16 marks. In the case of Ph.D it is stated that thesis and contents of the Ph.D of the petitioner and that the 4[th] respondent are distinct and Ph.D of 4[th] respondent is more appreciable and conducive in connection with the work of the 1[st] respondent. It is also stated that there is no principle to award 12 marks to all those who are awarded Ph.D; marks would vary on the basis of merit and thesis and its contents. Similarly regarding experience it is stated that Post Doctoral Fellowship or presentation or publications of petitioner are of no use for computing the actual experience and the 4[th] respondent is having sufficient experience. It is stated that the selection committee prepared the select list on 19.09.2019 and it was submitted to the 3[rd] respondent for further action as per Ext.R1(b) letter dated 20.09.2019. The rank list was published in the website on 02.12.2019. The 4[th] respondent was appointed as per order dated 30.11.2019 and he joined duty on 03.12.2019. The respondent stated that selection was conducted in accordance with law and the allegations raised by the petitioner are baseless. 6. The 4[th] respondent has filed a counter affidavit stating that the petitioner is not even eligible to submit application since the qualification prescribed in Ext.P1 notification was M.Sc Botany whereas the petitioner is a Post Graduate in Bioscience which is distinct and different from M.Sc Botany. WP(C).No.33790 OF 2019 7 Therefore according to the 4[th] respondent when M.Sc Botany was prescribed as the qualification, the selection committee of the 1[st] respondent went wrong in entertaining the application for selection of the petitioner as he was not having the qualification prescribed in the notification. It was also stated that he passed M.Sc Botany from Calicut University. He possessed Ph.D (Botany) from Government of Kerala and is having experience in the discipline of medicinal plants since 10.09.2002 while working as Technical Assistant in the State Medicinal Plants Board, Kerala. It is stated that he has got various publications and paper presentation etc. It is stated that the allegation rasied by the petitioner that more marks were awarded to 4[th] respondent in a disproportionate manner in order to facilitate his appointment is not correct and that the 100 marks were distributed under different heads ie. 50 for qualification, 12 for Ph.D in Medicinal Plants, 3 for NET/SET, 5 for experience, 5 for publication, 5 for awards/paper presentation and 20 for the interview. It is stated that the said criteria was notified before the interview and that proforma filled up by all the candidates who attended the interview was obtained earlier by the selection committee and marks are awarded under each category. According to the 4[th] respondent he was granted 12 marks out of 12 for Ph.D taking into account the thesis concentrated on medicinal plants alone that is worth for the job in the Board whereas the petitioner's Ph.D was not one connected with WP(C).No.33790 OF 2019 8 medicinal plants and it was relating to fungus. Therefore there was reduction of marks in the case of the petitioner. According to the 4[th] respondent it is for the selection committee to decide how to assess the merit of the candidates and to proceed with the process of distribution of marks under each category. The 4[th] respondent has joined duty on 03.12.2019. 7. Learned counsel for the petitioner, relying on the judgment in _**Associated Provincial Picture Houses Ltd V Wednesbury Corporation: 1948 (1) KB 223**_ argued that when the criteria adopted by the selection committee was shown unreasonable this Court has to interfer with the same as there was no reason for reducing marks for the petitioner towards his Ph.D, when 12 marks were earmarked for the same as awarded to the 4[th] respondent. It is also his contention that the denial of any marks to him towards research experience is also illegal, when he has been a post doctoral fellow undertaking research in the same field. ## 8. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1[st] respondent and the learned counsel for the 4[th] respondent. 9. In the Writ Petition the main complaint of the petitioner is that marks in the interview was manipulated to suit the 4[th] respondent. From the marksheet it is seen that petitioner was awarded the highest marks of 19 out of 20 in the interview whereas the 4[th] respondent got only 16 marks. However WP(C).No.33790 OF 2019 9 at the time of hearing the main grievance projected by the learned counsel for the petitioner was over denying the full marks of 12 for Ph.D and in not awarding a single mark for his research experience, though he had ompleted 3 post doctoral fellowships and has got vast experience in the field of medicianal plants. The 1[st] respondent has stated that Ph. D in medicinal plants is given importance and marks are awarded considering the subject of Ph.D. It is also their case that the distribution of marks for Ph. D is not to give 12 marks for any Ph.D and that the 4[th] respondent was awarded full marks for Ph.D, since the subject in his case was relating to medicinal plants, which is related to the job under the 1st respondent. It is stated that the Ph.D awarded to petitioner is relating to fungus. It is seen that the marks awarded is for Ph.D in Medicinal Plants and unlike the marks fixed for Ph.D for selections governed by UGC Regulations, irrespective of the subject, the stand of the 1[st] respondent is that 12 is the maximum marks which can be given to the Ph.D holders and they have awarded the marks in tune with the subject in which Ph.D is awarded and which is relevant for the job under them. Though the learned Counsel for the petitioner argued that his Ph.D is also on medicinal plant and that the selection committee did not verify the thesis he had submitted, I am of the view that when the experts in the field have found that the Ph. D acquired by petitioner need be awarded only 8 marks, this Court would not be WP(C).No.33790 OF 2019 10 in a position to hold that anybody having Ph.D ought to have been awarded 12 marks especially in the absence of any rule or regulation to that effect. It is true that in the event of awarding of full 12 marks for Ph.D to petitioner, he would have been ranked No.1. But it is seen that respondents have evaluated the PhD depending upon the job specification. It is also relevant to note that the distribution of marks under various heads was communicated to the candidates well before the interview and the petitioner has not raised any objection as against this. 10. The petitioner has not raised any specific allegation against any of the members of the selection committee. The contention of the petitioner that interview marks were awarded to suit the 4[th] respondent is seen factually incorrect from Ext.R1(a) and petitioner is seen awarded more marks than the 4[th] respondent, in the interview. As against the contention of the petitioner that he was not awarded marks for research experience the version of the respondents is that the same was not in medicinal plants. According to the petitioner his research experience was also in medicinal plants. But this Court does not have the expertise to decide which research experience has to be considered for the purpose of selection. It is settled law that in matters of selection the interference of courts under Article 226 is very limited. Apart from a vague averment in the writ petition, the petitioner has not substantiated that there was WP(C).No.33790 OF 2019 11 any malafides behind the selection. It is settled law, that the courts under Article 226 should not interfere with the selections made by duly constituted selection committee with experts in the field except in the case of violation of statutory rules or regulations (see _**University of Mysore v. C.D. Govinda Rao: AIR 1965 SC 491, J.P. Kulshreshtha v. Chancellor, Allahabad University:(1980) 3 SCC 418, Dalpat Abasaheb Solunke v. B.S. Mahajan: (1990) 1 SCC 305, Neelima**_ _**Misra v. Harinder Kaur Paintal: (1990) 2 SCC 746, Secretary, Department of Health and Family Welfare V Dr. Anita Puri**_ ). This court is not expected to undertake any re-evaluation or reassessment of candidates. The judgment in _**Associated Provincial**_ _**Picture Houses Ltd V Wednesbury Corporation's**_ case (supra) relied on by the petitioner would not apply to the factual circumstances arising in the case. In these circumstances, I am of the view that the impugned selection and appointment does not warrant any interference by this court. Accordingly, the Writ Petition is dismissed. **Sd/-** ## **P.V.ASHA** rkc **JUDGE** WP(C).No.33790 OF 2019 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED 10.06.2019 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2 A TRUE COPY OF THE APPLICATION FURNISHED BY THE PETITIONER IN PURSUANCE TO THE NOTIFICATION. EXHIBIT P3 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE MANGALORE UNIVERSITY.** **EXHIBIT P3 A A TRUE COPY OF THE EQUIVALENCY CERTIFICATE AWARDED BY THE UNIVERSITY OF KERALA TO THE PETITIONER. EXHIBIT P3 B A TRUE COPY OF THE EQUIVALENCY CERTIFICATE AWARDED BY THE MAHATMA GANDHI UNIVERSITY TO THE PETITIONER. EXHIBIT P4 A TRUE COPY OF THE DOCTOR OF PHILOSOPHY CERTIFICATE AWARDED TO THE PETITIONER BY THE MANGALORE UNIVERSITY. EXHIBIT P5 A TRUE COPY OF THE CURRICULUM DETAILS OF THE PETITIONER ELABORATING HIS EXPERIENCE AND RESEARCH. EXHIBIT P6 A TRUE COPY OF THE REPRESENTATION DATED 12.11.2019 MADE BEFORE THE CHAIRPERSON, STATE MEDICINAL PLANTS BOARD, KERALA. EXHIBIT P7 A TRUE COPY OF THE RIGHT TO INFORMATION APPLICATION DATED 20.11.2019. EXHIBIT P8 A TRUE COPY OF THE RANK LIST PUBLISHED BY THE 1ST RESPONDENT. RESPONDENTS' EXHIBITS** **EXT.R1A: TRUE COPY OF THE STATEMENT CONTAINING THE MARKS OBTAINED BY THE TOP FIVE CANDIDATES INCLUDED IN THE SELECT LIST ALONG WITH THE STATEMENT OF CRITERIA FOR AWARDING MARKS** **EXT.R1B: TRUE COPY OF THE LETTER DT.20.9.19 OF 1ST RESPONDENT TO 3RD RESPONDENT** **EXT.R1C: TRUE COPY OF THE LETTER DT.15.11.19 OF 1ST RESPONDENT TO 3RD RESPONDENT** **EXT.R1D: TRUE COPY OF GO(MS) NO.51/2019/AYUSH DT.30.11.19** **EXT.R1E: TRUE COPY OF THE ORDER DT.3.12.19 OF THE 1ST RESPONDENT** **EXT.R4A: TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT PRESCRIBING THE QUALIFICATIONS AND EXPERIENCE DT.13.6.19 IN GO(MS) NO.16/18 AYUSH (A) DEPARTMENT** **EXT.R4B: TRUE COPY OF APPLICATION FORM DT.26.6.19 ALONG WITH THE BIO-DATA SUBMITTED BY THE 4TH RESPONDENT** **EXT.R4C: TRUE COPY OF GO(MS) NO.51/19/AYUSH DT.30.11.19 ISSUED BY THE 3RD** WP(C).No.33790 OF 2019 13 ## **RESPONDENT** **EXT.R4D: TRUE COPY OF ORDER NO.SMPB/KL-08/2012 DT.3.12.19 OF 1ST RESPONDENT EXT.R4E: TRUE COPY OF ORDER NOSMPB/KL-08/2012 DT.9.12.19 OF 1ST RESPONDENT**