Jasmine Alex Arthanakunnel Nirmalalayam v. Cochin University of Science and Technology

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942** ## **WP(C).No.14085 OF 2018(I)** ## **PETITIONER/S:** **JASMINE ALEX ARTHANAKUNNEL NIRMALALAYAM, VALLICHIRA, KOTTAYAM - 686 574.** **BY ADVS. SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL** ## **RESPONDENT/S:** |**1**|**COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY**| |---|---| ||**COCHIN UNIVERSITY P.O., KOCHI - 682 022, REPRESENTED**| ||**BY ITS REGISTRAR.**| |**2**|**THE REGISTRAR**| ||**COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN**| ||**UNIVERSITY P.O., KOCHI - 682 022.**| |**3**|**THE SCHOOL OF LEGAL STUDIES**| ||**COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN**| ||**UNIVERSITY P.O., KOCHI - 682 022, REPRESENTED BY ITS**| ||**DIRECTOR.**| |**4**|**THE SELECTION COMMITTEE FOR THE POST OF ASSOCIATE**| ||**PROFESSOR IN SCHOOL OF LEGAL STUDIES**| ||**COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,**| ||**(CONSTITUTED PURSUANT TO NOTIFICATION NO.**| ||**AD.D3/136/NOTIF./2008 DATED 17.08.2015) COCHIN**| ||**UNIVERSITY P.O., KOCHI - 682 022, REPRESENTED BY ITS**| ||**CHAIRPERSON : THE VICE CHANCELLOR, COCHIN UNIVERSITY**| ||**OF SCIENCE AND TECHNOLOGY.**| |**5**|**DR. J.LETHA**| ||**VICE CHANCELLOR, COCHIN UNIVERSITY OF SCIENCE AND**| ||**TECHNOLOGY, COCHIN UNIVERSITY P.O., KOCHI - 682 022.**| **WP(C).No.14085 OF 2018(I)** **2** **6 DR. DAVID PETER REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O., KOCHI - 682 022.** **7 DR. N.S. SOMAN DEAN, FACULTY OF LAW, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O., KOCHI - 682 022.** **R1 BY SRI.S.P.ARAVINDAKSHAN PILLAI, SC, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY R1, R7 BY ADV. SRI.V.R.ARUN R1 BY ADV. SRI.P.ANTO THOMAS R1 BY ADV. SRI.S.RUSSEL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.14085 OF 2018(I)** **3** ## **JUDGMENT** ## **Dated this the 23[rd] day of February 2021** This is the second round of litigation at the instance of the petitioner on account of having been not selected to the post of Associate Professor in the stream of Jurisprudence (Open) in the 3rd respondent ie., School of Legal Studies under the University, 1st respondent. Though the petitioner in the first round of litigation while assailing the action of the Cochin University to re-notify the post was successful, essentially in the present writ petition has memo dated 17.4.2018, Ext.P15, has been challenged whereby for the purpose of conducting an interview, as per the undertaking given to this Court in the first round of litigation, within extended period, on the premise, that concerned efforts have been made, by the respondent, in ousting the petitioner from being selected by one way or the other. 2. Mr.Santhosh Mathew, learned counsel appearing on behalf of the petitioner submits that the notification Ext.P1 **WP(C).No.14085 OF 2018(I)** **4** was issued by the University inviting application for various posts fixing the qualifications and experience for submission by 17.9.2015. However, the aforementioned process was challenged in this Court by a writ petition. Resultantly, the interview scheduled for 25.4.2017 was postponed as evidenced from Ext.P7. Four applications were received and two were found eligible for the said post. The Syndicate found that other candidates were selected and only the petitioner was left and in their wisdom decided to re-notify the post. repetition, the said which has been quashed by this Court. 3. It has been argued that Ext.R2(f), the proforma submitted by all the candidates including the petitioner ie., Performance Based Appraisal system (PBAS) where, in the end it was notified that the candidates scoring less than forty five(45) points shall not be ranked ,but, selection committee could fix a higher cut off mark for preparation of rank list. The respondents were bent upon to extend the benefit of selection to the favourites by ousting the petitioner ,by changing the criteria of fixing minimum marks only at the **WP(C).No.14085 OF 2018(I)** **5** time when the petitioner was interviewed on 27.4.2018, ie., cut off marks from 45 increased to sixty (60). Since the petitioner could not attain 60 marks, she was not ranked. It is settled law that a rules of game, once notified, cannot be changed in the midway . In support of the aforementioned contentions, various judgments of this Court as well as Supreme Court have been cited. The indulgence of this Court has also been beseeched, for production of the record, to establish the alleged change of Rules of game only for the purpose of ousting the petitioner that too after the process of selection was over. There was no occasion for the selection committee to scrutinize the documents, which were already done except to cause interview which was kept in abeyance owing to the previous litigation ibid. The petitioner had secured requisite points required for getting rank during the PBAS evaluation. By attributing malice and malafides against the mode of selection committee, he would submit that owing to the previous litigation, Unierersity through members of the selection committee was hell-bend to reject the candidature of the petitioner. In fact, she had become an eyesore. A person **WP(C).No.14085 OF 2018(I)** **6** with a less merit was in the mind of the selection committee, for selection. 4. Per contra, Mr. S.P. Aravindakshan Pillai, SC, Cochin University of Science and Technology refuted the arguments of Mr. Santhosh Mathew by submitting that there was no impediment or interdiction with regard to the selection process of Professors and Assistant Professors. Even the parameter of fixing the minimum marks as 60 was also applied to all candidates of different posts, much before the interview of the petitioner. 5. In support of the aforementioned contentions, the attention of this Court had been drawn to the original records produced. The record was perused by this Court and found the aforementioned arguments to be correct and such plea has been countered by attaching one of the documents as Ext.R2(g). Clause 6.0.2 of the University Regulations 2013, enable the University to adopt regulation for selection committee. This Court may not accept the argument of the counsel for the petitioner regarding non application of such clause. The judgment of this Court dated 30.9.2020 in W.P. **WP(C).No.14085 OF 2018(I)** **7** (C) No.1088 of 2020 titled as _**Dr.Hareesh N. Ramanathan v. Cochin University of Technology**_ has been cited whereby the change of rule game/criteria had been dealt with and found that cut off marks of 60 was not done before the interview commenced but as a principle for selecting a person with a better qualification and acumen. The selection cannot be vitiated by attributing malafides until and unless serious and gross illegality in apportionment of marks from the record is pointed out. The selection committee unanimously observed the performance to be below average and urged this Court for dismissal of the writ petition. 6. I have heard the learned counsel for the parties and appraised the paper book as well as the original records produced at the time of hearing of the petition. 7. The notification of the post of Associate Professor, Jurisprudence (Open) with a qualification, fixation of last date extension, re-notification are not in dispute. PBAS, Forum, which is in the knowledge of every candidates /applicants; the last paragraph of the same specified that the candidates scoring less than 45 points shall not be ranked. The relevant **WP(C).No.14085 OF 2018(I)** **8** portion of the same reads as under: _‘Candidates who have scored less than 45 points (For SC/ST candidates it is 40 points) shall not be ranked. However, the respective selection committee can fix a higher cut off for preparing the rank list.’_ 8. Clause 6.0.2 of the University Grants Commission Regulations 2013, emphatically relied on behalf of the University was introduced with effect from 13.6.2013 enabling the University to adopt regulations for selection committees and selection procedures through respective statutory bodies incorporating the Academic Performance Indicator (API) based Performance Based Appraisal 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. It also empowered University, if they wish so, to increase the minimum required score or devise appropriate additional criteria for screening of candidates at any level of recruitment. For the sake of brevity, the clause **WP(C).No.14085 OF 2018(I)** **9** ## aforementioned extracted herein below: _**The clause 6.0.2 of the Principal Regulations shall stand amended and be substituted by the following clause:**_ _6.0.2 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 System (PBAS) at the institutional level for University Departments and their Constituent colleges affiliated colleges (Government/Governmentaided/Autonomous/ Private Colleges) to be followed transparently in all the selection processes. An indicative PBAS template proforma for direct recruitment and for Career Advancement Schemes (CAS) based on API based PBAS is annexed in Appendix III. The universities may adopt the template proforma or may devise their own self assessment cum performance appraisal forms for teachers. While adopting this, universities shall not change any of the categories or scores of the API given in Appendix-III. The universities can, if they wish so, increase the minimum required score or devise appropriate additional criteria for screening of candidates at any level of recruitment._ 9. On perusal of the record produced before this Court as well as from the Annexure R2(g) ie., the recommendation of a selection committee for the post of Associate Professor in Criminal law – ETB, the committee had fixed the minimum cut off marks for inclusion in the rank list as 60 that too, on 27.10.2017. Similar procedure was followed in respect of selection for various other posts earlier. Thus, the **WP(C).No.14085 OF 2018(I)** **10** apprehension of the petitioner of changing the rule of game only at the time of interview ie., on 27.4.2018 is wholly misplaced much less a figment of imagination. The ratio of decidendi culled out in various judgments relied on behalf of the respondents would thus be of no help. The cited case also pertains to identical question of fixing a higher marks than the minimum marks in the PBAS format. This Court after noticing all the contentions, laid down as under: _1.9. I have considered the contentions advanced on all sides. The main contention of the petitioner is that the cut off marks of 60% was not fixed before the interview and that the same was not made known to the candidates. The Apex Court, in the decisions relied upon by the learned counsel for the respondents, has held that where rules do not prescribe any procedure, the Selection Committee is free to prescribe minimum marks. However, if Selection Committee is to prescribe the minimum marks for the interview, it should be done before the commencement of the selection process._ _10. The Apex Court in K. Manjusree's case cited supra had held that selection criteria are to be prescribed in advance and that rules of the game cannot be changed midway through a selection process. The challenge in that case was with regard to the fixing of minimum qualifying marks for the written test and the interview. The ratio of marks was changed after the selection procedure had started without intimation to the candidates. In Hemani Malhotra's case cited supra, relying on the same principle, the Apex Court held that the rule making authority can prescribe the minimum marks both for written examination and viva voce. However, if minimum marks are not prescribed for viva voce before commencement of the selection process, the authority cannot, either during the selection process or after the selection process, add an additional minimum required qualification. In Barot_ **WP(C).No.14085 OF 2018(I)** **11** _Vijaykumar Balakrishna and others cited supra, the Apex Court held that the cut off marks for the viva voce being absent in the notification calling for applications, the selection ought to have been either conducted without any cut off marks for viva voce or after fixing such cut off marks and re-notifying the candidates. The Division Bench of this Court in Dr. S. Ajayan's case cited supra held that in the absence of any provision for cut off marks in the written examination or oral interview in the rules, the Kerala Public Service Commission would not be competent to prescribe such cut off marks. The correctness of the decision of the Division Bench in Dr. S. Ajayan's case was doubted by another Division Bench and the issue was referred to the Full Bench. The decision in Indulekha v. State of Kerala [2001 (1) KLT 951] was thought to be in direct conflict with Dr. S. Ajayan's case. Settling the dispute, the Full Bench held that if the Public Service Commission prepares a shortlist of candidates based on the circulars issued by it with regard to the number of candidates liable to be included therein, the procedure cannot be said to be illegal or improper so long as the procedure is transparent and fair._ _11. Having considered the contentions and the factual aspects, I find that the decisions relied on by the learned counsel for the petitioner are with regard to change of criteria or procedure after a selection process has commenced. The Full Bench in Ravidas M. and another v. Kerala Public Service Commission and others [2009 (2) KHC 10], after considering the provisions of the Public Service Commission Rules of Procedures, 1976 (Kerala) and the circulars, held that a shortlisting of candidates on the basis of clear criteria is permissible. In the instant case, separate marks had been fixed for interview and for the separate heads as provided in the selection guidelines. The dispute here is with regard to the fixing of an aggregate cut off mark for being appointed pursuant to a selection. In the instant case, the only contention is that the fixing of the total cut off mark of 60% was not done before the interview commenced. Having considered the recent decision of the Division Bench of this Court where the said issue has been pointedly considered, I am of the opinion that the contention that the cut off mark of 60% was not fixed before the selection commenced cannot be a ground to invalidate the selection. Ext.P4 produced by the petitioner would itself show that the Selection Committees_ **WP(C).No.14085 OF 2018(I)** **12** _had been given the power to fix a cut off mark for preparing the rank list. This apparently refers to the aggregate cut off mark required to be declared fit for selection to the post. 12. In an identical situation, the Division Bench held that unless it is possible for the petitioner to establish that the action of the University is wrongful and willful, without reasonable or probable cause, one cannot attribute legal malice. It was further held that the fact that a person scored the highest marks in a selection does not enable him to get the appointment in so far as the Selection Committee had not recommended him for the post. It was found that where the Selection Committee had unanimously observed that the performance of the candidates were below average, the learned Single Judge was not justified in arriving at a conclusion that when cut off marks have not been fixed for the interview or skill test, the recommendation of the Selection Committee was bad in law._ _13. The decision of the Selection Committee in the instant case as revealed from Ext.R1(a) is to the effect that all the candidates lack sound knowledge of basics. The decision of the Selection Committee is not to rank any of the candidates as none of them have achieved the cut off marks fixed by the Selection Committee. Even if the argument raised by the learned counsel for the petitioner that the cut off marks were not fixed before the interview is accepted, I am of the opinion that unless there is contention that the selection was vitiated by malafides, the decision of the Selection Committee cannot be assailed by a participant in the selection process on that ground._ _14. With regard to the further contention of the petitioner that the respondents are liable to award marks in terms of Ext.P4 PBAS data sheet and that in case such marks are awarded, the petitioner would be entitled for appointment, I am of the opinion that this Court would not be justified in embarking on an examination of the subjective assessment made by a duly constituted Selection Committee. In the above view of the matter, I am of the opinion that the prayers sought for in the writ petition cannot be granted. The writ petition fails and the same is, accordingly, dismissed._ As an upshot of my findings, I do not find any substance **WP(C).No.14085 OF 2018(I)** **13** in the eloquent arguments of the learned counsel for the petitioner. Writ petition is devoid of merit, accordingly, it is dismissed. **Sd/-** sab **AMIT RAWAL JUDGE** **WP(C).No.14085 OF 2018(I)** **14** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE NOTIFICATION NO. AD.D3/136/NOTIF/08(2) DATED 17.08.2015 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P2 TRUE COPY OF THE COMMON INTERIM ORDER DATED 22.12.2015 IN W.P.(C)NOS.10301/2013 AND 19351/2014 OF THIS HON'BLE COURT.** - **EXHIBIT P3 TRUE COPY OF THE COMMON INTERIM ORDER DATED 18.11.2016 IN W.P.(C)NOS.10301/2013 AND 19351/2014.** - **EXHIBIT P4 TRUE COPY OF THE AFFIDAVIT FILED BY THE UNIVERSITY IN W.P.(C)NO. 19351/2014 ON 03.01.2017.** - **EXHIBIT P5 TRUE COPY OF THE I.A.NO. 93/2017 IN W.P. (C)NO. 19351/2014 FILED BY RESPONDENTS.** - **EXHIBIT P6 TRUE COPY OF THE MEMO BEARING NO. RECT./201701/FACULTIES-SLS/2017(6407) DATED 10.04.2017 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF THE E-MAIL RECEIVED BY THE PETITIONER FROM THE UNIVERSITY ON 19.04.2017.** - **EXHIBIT P8 TRUE COPY OF THE ADDITIONAL AFFIDAVIT DATED 07.07.2017 FILED ON BEHALF OF THE RESPONDENTS IN W.P.(C)NO. 10301/2013.** - **EXHIBIT P9 TRUE COPY OF THE MEMORANDUM OF WRIT PETITION (CIVIL) 20.07.2017 (EXCLUDING EXHIBITS) IN W.P.(C)NO.24551/2017 FILED BEFORE THIS HONOURABLE COURT.** **EXHIBIT P10 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 26.09.2017 FILED ON BEHALF OF THE RESPONDENTS IN W.P.(C)NO. 24551/2017.** **WP(C).No.14085 OF 2018(I)** **15** - **EXHIBIT P11** **TRUE COPY OF THE AFFIDAVIT DATED 27.11.2017 FILED BY THE 2ND RESPONDENT PURSUANT TO THE ORDER DATED 17.11.2017 IN I.A.NO. 16840/2017 IN W.P.(C)NO. 24551/2017 OF THIS HONOURABLE COURT.** - **EXHIBIT P12** - **TRUE COPY OF THE JUDGMENT DATED 11.01.2018 IN W.P.(C)NO. 24551/2017 OF THIS HONOURABLE COURT.** - **EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 19.02.2018 IN WA NO. 424/2018 OF THIS HONOURABLE COURT.** - **EXHIBIT P14 TRUE COPY OF THE ORDER DATED 13.04.2018 IN I.A NO. 385/2018 IN W.A.NO. 424/2018 OF THIS HONOURABLE COURT.** - **EXHIBIT P15 TRUE COPY OF THE MEMO BEARING NO. RECT./201701/FACULTIES-SLS/2017(6407) DATED 17.04.2018 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P15(A) TRUE COPY OF THE PBAS DATA SHEET WHICH WAS ENCLOSED WITH EXHIBIT P15.** - **EXHIBIT P16 TRUE COPY OF THE E-MAIL DATED 18.4.2017 SEND BY TEH PETITIONER TO THE RECRUITMENT CELL OF THE 1ST RESPONDENT UNIVERSITY** - **EXHIBIT P16 (a)** - **TRUE COPY OF THE SOFT COPY OF THE DULY FILLED PBAS DATA SHEET FORWARDED BY THE PETITIONER ALONG WITH EXHIBIT P16 E-MAIL.** ## **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R2A TRUE COPY OF THE RECOMMENDATIONS OF THE SELECTION COMMITTEE.** - **EXHIBIT R2B TRUE COPY OF THE CONSOLIDATED MARK SHEET.** **EXHIBIT R2C TRUE COPY OF THE PBAS SCORE SHEET OF THE PETITIONER.** **WP(C).No.14085 OF 2018(I)** **16** **UGC REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF IN UNIVERSITIES AND COLLEGES AND MEASURES FOR MAINTENANCE OF STANDARDS IN HIGHER EDUCATION 2010 FOR SHORT THE UGC REGULATIONS 2010.** **EXHIBIT R2E TRUE COPY OF THE RELEVANT PAGES OF GAZETTE NOTIFICATIONS NO.F1-2/2009(EC/PS) V(I) VOL.II DATED 13-06-2013. EXHIBIT R2F TRUE COPY OF THE RELEVANT PAGES OF GAZETTE NOTIFICATIONS NO.F1-2/2009(EC/PS) V(I) VOL.II DATED 13-06-2013. EXHIBIT R2G TRUE COPY OF THE RELEVANT PAGES OF GAZETTE NOTIFICATIONS NO.F1-2/2009(EC/PS) V(I) VOL.II DATED 13-06-2013. EXHIBIT R2H TRUE COPY OF THE PBAS SCORE SHEET OF DR.SEEMA P.S. EXHIBIT R2I TRUE COPY OF THE RECOMMENDATIONS OF THE SELECTION COMMITTEE FOR THE POST OF PROFESSOR LAW (SELF-FINANCING OPEN HELD ON 27-10-2017. EXHIBIT R2J TRUE COPY OF THE PBAS SCORE SHEET OF SMT.GIFTY OOMMEN EXHIBIT R2K TRUE COPY OF THE PBAS SCORE SHEET OF SMT.GIFTY OOMMEN**