Minu Lalitha Madhavu v University of Kerala & Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 24TH DAY OF JANUARY 2018 / 4TH MAGHA, 1939** **WP(C).No. 23560 of 2013** ## **PETITIONER:** **MINU LALITHA MADHAVU, RESIDING AT REVATHI, EAST OF SDA SCHOOL, MAVELIKARA-1.** **BY ADV.SRI.R.RAJASEKHARAN PILLAI** ## **RESPONDENTS:** **1. THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM-695001.** **2. THE SELECTION COMMITTEE FOR THE SELECTION OF LECTURERS IN THE DEPARTMENT OF FUTURES STUDIES, REPRESENTED BY ITS CHAIRMAN THE VICE CHANCELLOR, KERALA UNIVERSITY, UNIVERSITY BUILDING, THIRUVANANTHAPURAM - 695 001.** **3. THARA PRABHAKARAN, LECTURER, DEPARTMENT OF FUTURES STUDIES, KERALA UNIVERSITY, UNIVERSITY BUILDING, THIRUVANANTHAPURAM - 695 001.** **R1 & R2 BY ADVS. SRI.GEORGE POONTHOTTAM,SC,** **SRI.BECHU KURIAN THOMAS, SC, SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA R3 BY ADVS. SRI.V.AJAKUMAR SRI.T.M.CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2017, THE COURT ON 24.01.2018 DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 23560 of 2013 (T)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1: TRUE COPY OF THE CERTIFICATE ISSUED BY THE FIRST RESPONDENT'S FACULTY OF APPLIED SCIENCES TO THE PETITIONER. EXHIBIT P2: TRUE COPY OF THE RESULT SHEET OF THE PETITIONER. EXHIBIT P3: TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE PRINCIPAL OF THE SREE BUDHA ENGINEERING COLLEGE. EXHIBIT P4: TRUE COPY OF THE NOTIFICATION NO.AD/H/44875/2012 DATED 17.9.2012 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5: TRUE COPY OF THE ADDENDUM DATED 19.9.2012 OF THE 1ST RESPONDENT. EXHIBIT P6: TRUE COPY OF THE INTERVIEW LETTER DATED 1.6.2013 ISSUED TO THE PETITIONER.** - **EXHIBIT P7: TRUE COPY OF THE MINUTES OF THE MEETING OF THE 2ND RESPONDENT HELD ON 17.6.2013.** - **EXHIBIT P8: TRUE COPY OF THE RANK LIST IN RESPECT OF THE INTERVIEW HELD ON 17.6.2013.** - **EXHIBIT P9: TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER BY THE NATIONAL CONFERENCE ON VLSI & EMBEDDED SYSTEMS TECHNOLOGY ADVANCEMENTS.** - **EXHIBIT P10: TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER BY THE NATIONAL CONFERENCE ON VLSI & EMBEDDED SYSTEMS TECHNOLOGY ADVANCEMENTS.** - **EXHIBIT P11: TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER BY THE NCACC 2013 HELD AT SREE BUDDHA COLLEGE OF ENGINEERING, PATTOOR FOR THE SUBMISSION OF THE PAPER TITLED A SECURE METHOD FOR DATA PROCESSING AND FORWARDING IN CLOUD'.** - **EXHIBIT P12: TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER BY THE NCACC 2013 HELD AT SREE BUDDHA COLLEGE OF ENGINEERING, PATTOOR FOR THE SUBMISSION OF THE PAPER TITLED AS SECURE DATA TRANSFER USING EXTENDED VISUAL CRYPTOGRAPHY.** **EXHIBIT P13: TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER BY THE NCACC 2013 HELD AT SREE BUDDHA COLLEGE OF ENGINEERING PATTOOR FOR THE SUBMISSION OF THE PAPER TITLED PEER-TO-PEER VIDEO ON DEMAND STREAMING USING PEER CACHE ADAPTION.** **WP(C).No. 23560 of 2013 (T)** |**EXHIBIT P14:**|**TRUE COPY OF THE CERTIFICATE OF PUBLICATION ISSUED BY THE**| |---|---| ||**INTERNATIONAL JOURNAL OF COMPUTER APPLICATIONS IN ENGINEERING**| ||**AND SCIENCES DATED 3.6.2013.**| |**EXHIBIT P15:**|**TRUE COPY OF THE MARK SHEET OF THE 3RD RESPONDNET OBTAINED BY**| ||**THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT**| |**EXHIBIT P16:**|**TRUE COPY OF THE CASTE CERTIFICATE OF THE 3RD RESPONDENT**| ||**OBTAINED IN 2006**| |**EXHIBIT P17:**|**TRUE COPY OF THE G.O.(M.S.) NO.318/08/REVENUE DATED 23.9.2008**| |**EXHIBIT P18:**|**TRUE COPY OF THE TESTIMONIAL DATED 9.10.2012 GIVEN TO THE 3RD**| ||**RESPONDENT**| |**EXHIBIT P19:**|**TRUE COPY OF THE MINUTES OF THE MEETING OF THE SELECTION**| ||**COMMITTEE OF LECTURES**| |**EXHIBIT P20:**|**TRUE COPY OF THE LETTER DATED 17.6.2011 FROM THE 1ST**| ||**RESPONDENT**| |**EXHIBIT P20A:**|**TRUE COPY OF THE INTIMATION FROM THE 1ST RESPONDENT UNIVERSITY**| ||**DATED 1.8.2013**| |**EXHIBIT P20B:**|**TRUE COPY OF THE LETTER DATED 15.6.2013 FROM THE 1ST**| ||**RESPONDENT UNIVERSITY**| |**EXHIBIT P20C:**|**TRUE COPY OF THE INTIMATION DATED 6.5.2013 ALONG WITH THE LIST**| ||**OF FACULTY MEMBERS TO THE RESPONDENT UNIVERSITY**| |**EXHIBIT P20D:**|**TRUE COPY OF THE LETTER DATED 24.5.2013 FROM THE UNIVERSITY TO**| ||**THE PRINCIPAL OF THE PETITIONER'S COLLEGE**| |**EXHIBIT P20E:**|**TRUE COPY OF THE LIST OF FACULTY MEMBERS DEPUTED IN RESPONSE**| ||**TO THE REQUEST OF THE FIRST RESPONDENT**| |**EXHIBIT P21:**|**TRUE COPY OF THE CHART PREPARED BY THE PETITIONER REGARDING**| ||**THE ASSESSMENT OF MARKS GRANTED FOR THE INTERVIEW**| |**EXHIBIT P22:**|**TRUE COPY OF THE TRUE COPY OF THE NEWS ITEM DATED 7.10.2013**| ||**APPEARED IN KERALA KAUMUDI DAILY**| |**EXHIBIT P23:**|**TRUE COPY OF THE RELEVANT EXTRACT OF THE REGULATIONS PUBLISHED**| ||**BY THE UNIVERSITY GRANTS COMMISSION IN THE GAZETTE OF INDIA**| ||**DATED 18 SEPTEMBER 2010**| |**EXHIBIT P24:**|**TRUE COPY OF THE G.O.(P) NO.392/2010 DATED 10.12.2010**| |**EXHIBIT P25:**|**TRUE COPY OF THE JUDGMENT DATED 18.1.2013 IN WPC.29673/2012 OF**| ||**THIS HON'BLE COURT**| |**EXHIBIT P26:**|**TRUE COPY OF THE OBSERVATIONS OF THE APEX COURT IN MOHD. ALTAF**| ||**UPPSC IN (2008) 14 SCC 139**| |**EXHIBIT P27:**|**TRUE COPY OF THE DECISIONS OF ALLAHABAD HIGH COURT IN WRIT A**| ||**NO.2842/2010**| |**EXHIBIT P28:**|**TRUE COPY OF THE DECISION OF TH EALAHABAD HIGH COURT IN WRIT A**| ||**NO.62375/2012**| |**EXHIBIT P29:**|**TRUE COPY OF THE REPLY DATED 24.9.2013 ISSUED TO ONE MASHWELL**| ||**C M UNDER RTI ACT**| **WP(C).No. 23560 of 2013 (T)** **EXHIBIT P30: TRUE COPY OF THE COMMUNICATION DATED 23.9.2013 ISSUED TO ONE DARSHAN LAL UNDER RTI ACT FROM M.G. UNIVERSITY EXHIBIT P31: TRUE COPY OF THE SCORE SHEETS AND RESPECTIVE TEACHING EXERIENCE OF ONE MADHUS S NAIR AND PHILOMINA OBTAINED UNDER RTI ACT BY MASHWELL C M BY COMMUNICATION DATED 2.12.2013** **EXHIBIT P32: TRUE COPY OF THE COMMUNICATED DATED 16.7.2013 OBTAINED BY MASHWELL CM UNDER RTI ACT** ## **RESPONDENT(S)' EXHIBITS** **EXHIBIT R1(A) TRUE COPY OF THE SAID ORDER NO.AD.H/2928/07 DATED 23.10.2007 EXHIBIT R1(B) TRUE COPY OF THE CONVERSION FORMULA FROM CGPA TO PERCENTAGE OF MARKS OF M.TECH (TECHNOLOGY MANAGEMENT) EXHIBIT R1(C) TRUE COPY OF THE CERTIFICATE DATED 16.3.2011 SUBMITTED BY THE PETITIONER ALONG WITH HER APPLICATION EXHIBIT R1(D) TRUE COPY OF CERTIFICATE DATED 14.6.2013 SUBMITTED BY THE PETITIONER AT THE TIME OF INTERVIEW EXHIBIT R1(E) TRUE COPY OF CERTIFICATE DATED 4.1.2011 SUBMITTED BY THE 3RD RESPONDENT AT THE TIME OF INTERVIEW EXHIBIT R1(F) TRUE COPY OF CERTIFICATE DATED 6.11.2010 SUBMITTED BY THE 3RD RESPONDENT AT THE TIME OF INTERVIEW EXHIBIT R1(G) TRUE COPY OF CERTIFICATE DATED 31.5.2011 SUBMITTED BY THE 3RD RESPONDENT AT THE TIME OF INTERVIEW EXHIBIT R3(A) TRUE COPY OF THE GATE SCORE CARD DATED 15.3.2005 EXHIBIT R3(B) TRUE COPY OF THE PASS MEMO DATED 27.12.2008 EXHIBIT R3(C) TRUE COPY OF THE ORDER DATED 17.2.2012 AWARDING SPEEDIT FELLOWSHIP EXHIBIT R3(D) TRUE COPY OF THE CERTIFICATE DATED 6.6.2013 EXHIBIT R3(E) TRUE COPY OF THE TESTIMONIAL ISSUED TO MR. SHYAM SANKAR EXHIBIT R3(F) TRUE COPY OF THE TESTIMONIAL ISSUED TO MISS. DRISYA G.V. EXHIBIT R3(G) TRUE COPY OF THE ORDER IN WRIT PETITION (CIVIL) NO.23782/2013 EXHIBIT R3(H) TRUE COPY OF THE REPLY DATED 30.3.2015 ALONG WITH COPY OF APPLICATION FORM AND DOCUMENTS FILED BY THE PETITIONER EXHIBIT R3(I) TRUE COPY OF THE UNIVERSITY OF KERALA LETTER NO.108/RTI.1/2015/PR DATED 30.3.2015** **TRUE COPY** **P.S. TO JUDGE** **EL** ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** ## **W.P.(C).No.23560 of 2013** **= = = = = = = = = = = = = = = Dated this the 24th day of January, 2018** ## **JUDGMENT** ## 1.The prayers in this writ petition are as follows:- "i) Issue a writ of certiorari or other appropriate writ order or direction calling for the records leading to and culminating in Ext.P7 and P8 and quash the same as arbitrary, illegal and apparently bias which is offensive of Article 14 and 16 of the Constitution of India. ii) Issue a writ of mandamus or other appropriate writ order or direction commanding the 1[st] respondent to cancel the appointment of the 3[rd] respondent and direct the respondents 1 and 2 to offer the appointment.” - 2.Heard the learned Senior counsel for the petitioner and the learned standing counsel appearing for the respondents. 3. The issue raised in this writ petition is with regard to the counting of prior service put in by the petitioner as Lecturer in a Self Financing College as teaching experience for award of marks in a selection to the post of Lecturer in the Department of Future Studies in the 1[st] respondent University. The petitioner contends that Exhibit P4 notification dated 17.9.2012 was issued for selection to teaching posts in the University. The notification W.P.(C).No.23560/13 2 invited applications for teaching posts including two posts of Lecturers in Future Studies;one reserved for Scheduled Caste and one open vacancy. The qualifications prescribed were as follows:- “Good academic records with at least 55 % marks or an equivalent grade at Masters Degree level in the relevant subject from an Indian University or an equivalent Degree from a foreign university and clearing eligibility test for lectureship.” 4. In Exhibit P5 addendum and corrigendum to the notification,it was provided that in the absence of candidates with the Masters Degree in Technology Management (ME/M.Tech), First Class Masters Degree holders in (ME/M.Tech) in Electronics and Communication/Computer Science and Engineering/ IT may be considered. The candidate must have undergone an AICTE approved programme for the above qualifying degree. Such candidates were also exempted from passing passing UGC, NET. The petitioner, who has an M.Tech Degree with First Class and Distinction, was found eligible for consideration and was called for an interview. It is stated that pursuant to an interview held on 17.6.2013, Exhibit P7 ranked list and Exhibit P8 score sheet W.P.(C).No.23560/13 3 were published. The petitioner scored 62.06 marks and was ranked No.2 in the SC quota while the 3[rd] respondent who scored 62.52 marks was ranked No.1. The petitioner contends that no marks have been awarded to her for teaching/research experience, in spite of the fact that she had submitted Exhibit P3 experience certificate before the selection board at the time of the interview. It is stated that if her experience from 2006 onwards in the Sree Buddha College of Engineering, Pattoor, Alappuzha is taken into account, she would be eligible for award of 2 marks for teaching experience and would thus be entitled to 64.06 marks; thus obtaining the 1[st] rank in the selection. The question whether teaching experience in a Self Financing College is to be taken into account in the concerned selection is the short point which arises for consideration. 5. The petitioner also collaterally contends that the petitioner had produced proof of having presented two papers in national/international conferences by Exhibit P9 and P10 and the same was not taken into consideration. It is also contended that the Head of the Department of Future Studies in the University, W.P.(C).No.23560/13 4 who is the research guide of the 3[rd] respondent, was a member of the Selection Committee and this has resulted the 3[rd] respondent being awarded unduly high marks in the interview. It is contended on the basis of Exhibit P31 that two other teachers had been granted appointments in prior selections taking their service in Self Financing Colleges as teaching experience. The learned counsel for the petitioner relies on Exhibit P23 UGC guidelines, especially Clause 10(1)(f) and (g) thereof to contend that prior regular services in Private and Self Financing Colleges are also liable to be counted as teaching experience for the purpose of selection. Relying on the decision on the Full Bench of this Court in **Radhakrishna Pillai v. Travancore Devaswom Board** [2016 (2) KHC 119 (FB)] it is contended that the provisions in the UGC Regulations will prevail over any prescription in the University laws or the norms for selection. 6. A counter affidavit has been filed on behalf of the University contending that Exhibit R1(a) university order dated 23.10.2007 provided the guide lines for award of marks in selections at the relevant time and teaching or research experience was limited to W.P.(C).No.23560/13 5 University departments and affiliated colleges. It is contended that all the material produced within the time prescribed had been taken note of and the petitioner was awarded marks on the basis of the certificates produced by the petitioner. 7. The 3[rd] respondent has also filed a detailed counter affidavit. It is contended by the learned counsel for the 3[rd] respondent that the plea of bias as against the Professor and Head of Department of Future Studies is not maintainable because the writ petition filed as W.P.(C).No.23782/13 with the said party also as a respondent had been withdrawn by the petitioner. It is stated that Exhibit R1(h) application preferred by the petitioner would clearly show that the documents now produced and stated to be the experience certificates were not available at the time when the petitioner filed her application. It is further contended that going by Statute 40(a) of the First Statutes, 1979, only persons appointed in Self Financing colleges whose appointments were approved would be entitled to claim teaching experience. It is stated that Exhibit R1(a) norms issued by the University specifically shows that experience certificates have to be issued W.P.(C).No.23560/13 6 by the Principal of a Government/ Aided College or Director of Collegiate Education. It is stated that going by Exhibit P4 notification, applications of employed candidates were to have been forwarded through proper channel. It is further contended that the definition of teacher in terms of Section 2(27) of the Act would make it clear that only those persons whose appointments are approved by the University would be teachers. In view of the specific contention of the University that the appointment of teachers in self financing colleges had not been approved by the University, the petitioner could not claim that the said teaching experience is to be taken into account. Relying on the UGC Regulations and orders implementing the same in the State of Kerala, it is contended that the provision for counting of past services and the reckoning of teaching experience for the purpose of appointment are completely different matters and there is absolutely no provision in the UGC Regulations which provides that the service rendered in self financing colleges should be taken into account for the award of marks in a selection for direct recruitment. W.P.(C).No.23560/13 7 8. I have considered the contentions advanced. The contention of the petitioner is essentially with regard to award of marks in a selection conducted for appointment to the post of Lecturer in Future Studies under the University. The selection was admittedly conducted on the basis of Exhibits P4 and P5 notifications by a duly constituted selection committee. The petitioner did not challenge the constitution of the selection committee. The award of marks by the selection committee is not a matter which can be subjectively assessed by this Court in judicial review. However, the question whether the prior service put in by the petitioner in a self financing college is to be reckoned as teaching experience for the award of marks becomes relevant in view of Exhibit R1(a) norms providing for the award of marks for teaching experience as well. Since the award of two marks for teaching experience would be crucial in deciding the question whether the petitioner will be entitled to be placed at first rank in the ranked list, that question is to be considered by this Court. W.P.(C).No.23560/13 8 9. The petitioner relies on Clause 10 of the UGC norms to contend that the service rendered in private and self financing colleges also have to be taken note of while awarding marks for teaching experience. Several decisions have been cited by the learned counsel in support of the contention that the UGC Norms would prevail over any prescription in the University Act, Statutes or Orders with regard to matters specified by the UGC. Clause 10 of the UGC Regulations is with regard to counting of past services for direct recruitment and promotion under the Career Advancement Scheme. It is provided at sub-clause (g) thereof that no distinction should be made with reference to the nature of management of institution where previous services were rendered. However, at sub-clause (c) of the said clause itself, it is provided that the applications in such cases have to be made through proper channel only. It is not in dispute that there was no application through the college where the petitioner was initially worked. In view of the specific ground raised by the University that the teaching experience is to be taken note of only if such experience is gained as an approved teacher, I am of W.P.(C).No.23560/13 9 the opinion that the provisions of Clause 10 cannot be relied on by the petitioner who had never made an application through proper channel and who has no case that her prior service was approved by any university to contend that the said service should be taken note of for award of marks for teaching experience. - 10.Teaching experience is not defined in the Kerala University Act or the First Statutes. However, Section 2(27) of the Kerala University Act defines teacher as follows:- “teacher” means a principal, professor, associate professor, assistant professor, reader, lecturer, instructor, or such other person imparting instructions or supervising research in any of the colleges or recognised institutions and whose appointment has been approved by the University.” - 11.The selection had admittedly been conducted on the basis of Exhibit R1(a) norms. There is no challenge against the said norms. The norms specify that only service rendered in a University or an affiliated college or department shall be W.P.(C).No.23560/13 10 reckoned as teaching experience. I am of the opinion that the norms are not contrary to any of the provisions of the UGC guidelines and therefore the selection conducted in accordance with the norms cannot be assailed on that ground. In the above matter, I am of the opinion that teaching experience gained in a private self financing institution where there is no provision for the university to verify the qualifications prescribed or any specific procedure prescribed for conduct of the selection cannot be taken into account for the award of marks for teaching experience. The other contention of the petitioner being with regard to the subjective satisfaction of the duly constituted selection committee in the matter of award of marks on the basis of the criteria fixed by the University, I am of the opinion that such matters cannot be gone into by this Court in these proceedings. The selection already concluded in the year 2013 cannot be disturbed at this distance of time on the grounds raised in this writ petition. The writ petition fails and is accordingly dismissed. **Anu Sivaraman, Judge** sj W.P.(C).No.23560/13 11