Nasafi Rahman M. v. Cochin University of Science and Technology & 3 others (Writ Appeal No.1500 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE SOPHY THOMAS FRIDAY, THE 3[RD] DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944** **WA NO. 1500 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 26186/2022 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/PETITIONER:** **NASAFI RAHMAN M., AGED 34 YEARS S/O MUJEEB RAHMAN, PRESENTLY RESIDING AT FLAT NO. 709, BUILDING NO. 278, WAY NO. 1063, A1 WADI AL KABIR, MUSCAT, OMAN HAVING PERMANENT ADDRESS AT VAILITHARA, PANOOR, PALLANA POST, THRIKKUNNAPPUZHA, ALAPPUZHA, KERALA, 690515, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, IJLAL C., ADVOCATE, AGED 34 YEARS, S/O MOHAMMED, CHATHOLI HOUSE, THUVVUR, POST, MALAPPURAM DISTRICT, KERALA – 679327.** **BY ADVS. UMMUL FIDA NIMMY JOHNSON K.M.FIROZ(K/1714/2000)** ## **RESPONDENTS/RESPONDENTS:** - **1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY (CUSAT) COCHIN UNIVERSITY P.O., ERNAKULAM, KOCHI - 682022 , REPRESENTED BY ITS REGISTRAR.** - **2 VICE CHANCELLOR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY (CUSAT), COCHIN UNIVERSITY P.O., ERNAKULAM, KOCHI - 682022.** **3 DEPARTMENT OF LAW, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY (CUSAT), COCHIN UNIVERSITY P.O., ERNAKULAM, KOCHI - 682022, REPRESENTED BY THE HEAD OF THE DEPARTMENT.** Writ Appeal No.1500 of 2022 -: 2 :- - **4 DR. ASIF.E., ASSISTANT PROFESSOR(LAW), NUALS, NAD ROAD, HMT COLONY, NORTH KALAMASSERY, KALAMASSERY, KOCHI, KERALA – 683503.** **BY ADVS.** **S. P. ARAVINDAKSHAN PILLAY M.H.ASIF ALI** **S.MUHAMMED HANEEFF(K/000647/1990)** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Writ Appeal No.1500 of 2022 -: 3 :- ## **P.B.SURESH KUMAR & SOPHY THOMAS, JJ.** ## **----------------------------------------------Writ Appeal No.1500 of 2022 -----------------------------------------------** ## **Dated this the 3[rd] day of February, 2023** ## **JUDGMENT** ## **P.B.Suresh Kumar, J.** This appeal is directed against the judgment dated 31.08.2022 in W.P.(C) No.26186 of 2022. The appellant is the petitioner in the writ petition. The matter relates to the selection for appointment to the post of Assistant Professor in Constitutional Law/Maritime Law in the Cochin University of Science and Technology (the University). 2. Applications were invited by the University from qualified candidates for appointment to the post of Assistant Professor in Constitutional Law/Maritime Law against a vacancy reserved for candidates belonging to Muslim Community. Ext.P4 is the notification issued by the University in this regard. The minimum qualification prescribed in the notification for selection is Master's degree with 55% marks in Writ Appeal No.1500 of 2022 -: 4 :- the relevant subject. The appellant who holds a Master's degree in Constitutional Law and Maritime Law with the requisite marks, applied for selection pursuant to the notification. The fourth respondent who holds a Master's degree in Public Law and Intellectual Property Rights with requisite marks also applied for the said selection. The selection was based on the performance of the candidates in the interview. Ext.P9 is the ranked list of the candidates shortlisted for appointment. In Ext.P9, the fourth respondent was assigned first rank and the appellant was assigned second rank. The appellant challenged the selection of the fourth respondent in the writ petition on the mainly ground that the fourth respondent who does not have a Master's degree either in Constitutional Law or in Maritime Law is not qualified in terms of the applicable Regulations of the University Grants Commission (the UGC Regulations) and that only candidates who possess a Master's degree in Constitutional Law or in Maritime Law are eligible to be considered for selection as per the UGC Regulations. It was alleged by the appellant in the writ petition that the fourth respondent has neither studied Maritime Law nor Constitutional Law at the post-graduate level Writ Appeal No.1500 of 2022 -: 5 :- and instead, he studied only some aspects of Constitutional Law as part of the curriculum at the post-graduate level while studying Public Law. The writ petition was disposed of by the learned Single Judge at the admission stage itself directing the University to verify the process adopted by the Selection Committee and ascertain whether it has been done correctly, after affording an opportunity of being heard to the appellant as also to the fourth respondent. The appellant is aggrieved by the said decision of the learned Single Judge and hence, this appeal. 3. Insofar as the writ petition was disposed of at the admission stage, both the University as also the fourth respondent filed their counter-affidavits in the writ appeal. 4. The stand taken by the University in their counter-affidavit is that the committee constituted by the University for scrutiny of the applications consisting of eminent academicians including experts in the field of law found the fourth respondent qualified to be considered for selection as he has studied as part of his curriculum at the post graduate level Constitutional Principles, Constitutional Structure, Constitutional Rights and Social Justice, Judicial Review of Writ Appeal No.1500 of 2022 -: 6 :- Legislation and Constitutional Amendments, Law of Elections and Democratic Decentralisation and Judicial Review of Administrative Action, which are closely related to Constitutional Law. The fourth respondent in his counteraffidavit takes the stand that the requirement in terms of the UGC Regulations followed in the selection process is only that the candidates should hold a Master's degree in 'a' relevant subject and it is not necessary that the Master's degree shall be in 'the' relevant subject. 5. Heard the learned counsel for the appellant, the learned Standing Counsel for the University and the learned counsel for the fourth respondent. 6. The learned counsel for the appellant persuasively argued that the stand taken by the University that it is not necessary for a person to hold either a Master's degree in Constitutional Law or in Maritime Law to teach the said subjects and that a person who has studied some aspects of Constitutional Law can teach Constitutional Law and Maritime Law in the University, is absurd. According to the learned counsel, in the absence of the article “a” preceding the words “relevant subject” in the notification, the same has to be Writ Appeal No.1500 of 2022 -: 7 :- understood as insisting a Master's degree in either Constitutional Law or Maritime Law, for being considered for selection. The learned counsel has also made elaborate submissions to bring home the point that the fourth respondent has not studied all aspects of Constitutional Law as is normally taught at the post-graduate level but only a few aspects of the same while pursuing his L.L.M course in Public Law. According to the learned counsel, such a candidate cannot be said to be qualified for selection. It was also argued by the learned counsel that there is no difficulty in accepting the broad proposition that academic issues must be left to be decided by expert bodies and the court cannot act as an appellate authority in such matters. But it was argued by the learned counsel, placing reliance on the decision of the Apex Court in **Ganapath Singh Gangaram Singh Rajput v. Gulbarga University** , (2014) 3 SCC 767 that the said proposition cannot be understood to hold that the opinion of expert bodies deserve to be accepted under all circumstances and that the same is not subject to judicial review. According to the learned counsel, such a broad proposition will have very serious consequences and the courts can, in appropriate cases, Writ Appeal No.1500 of 2022 -: 8 :- examine the correctness of the decision taken by such bodies. It was argued by the learned counsel that the case on hand is an appropriate case where the court can examine the correctness of the decision taken by the academic body which entertained the application of the fourth respondent as the subject involved is not alien to the court. 7. Per contra, the learned Standing Counsel for the University asserted that the minimum qualification prescribed for selection is only a Master's Degree in “relevant subject” and the decision taken by the the Scrutiny Committee on an evaluation of the materials before it that the fourth respondent holds Master's Degree in a relevant subject cannot be questioned in a proceedings under Article 226 of the Constitution, especially when there are no allegations of malice against the academicians in the Scrutiny Committee. The learned Standing Counsel for the University has also relied on a decision of the Division Bench of this Court in **Gijo Ittoop (Dr.) v. Kerala University of Fisheries,** 2018 (4) KHC 285, in support of the proposition argued by him. The learned counsel for the fourth respondent supported the arguments advanced by the learned Standing Counsel for the University, relying on Writ Appeal No.1500 of 2022 -: 9 :- the decision of the Apex Court in **Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan,** AIR 1990 SCC 434. 8. We have bestowed our attention to the arguments advanced by the learned counsel for the parties. 9. The relevant portion of the applicable UGC Regulations was produced by the fourth respondent along with the counter-affidavit filed by him as Annexure R4(b). The relevant portion of Annexure R4(b) dealing with the eligibility criteria fixed for appointment to the post of Assistant Professor reads thus: “A Master's degree with 55% marks (or an equivalent grade in a point-scale wherever the grading system is followed) in a concerned/relevant/allied subject from an Indian University, or an equivalent degree from an accredited foreign university.” In Ext.P4 notification, though it is stated that the subject/specialisation required for the post advertised is Constitutional Law/Maritime Law, the prescription as regards the minimum qualification was as follows: “Master's Degree with 55% marks (or an equivalent grade in a point-scale wherever the grading System is followed) in relevant subject from an Indian University, or an equivalent degree from an accredited foreign university.” As evident from the extracted provisions, the requirement Writ Appeal No.1500 of 2022 -: 10 :- under the UGC Regulations as regards minimum qualification is a Master's degree with 55% marks in a concerned or relevant or allied subject, whereas the requirement under the notification as regards the minimum qualification is a Master's degree with 55% marks in relevant subject. Although the article 'a' is not there in the notification preceding the word 'relevant', insofar as it is the common case of the parties that the selection process is governed by the UGC Regulations, the word 'relevant' in the notification has to be understood with the article 'a' preceding the same. It is settled law that if the prescription is that the qualification shall be in 'the' relevant subject, then the qualification shall only be in that subject and if the prescription is that the qualification shall be in 'a' relevant subject, the qualification shall be on other subjects as well, which are relevant. It is so held by this Court in **Gijo Ittoop (Dr.)** . Needless to say, a Master's degree in a relevant subject need not be a Master's degree in the relevant subject. In other words, the notification does not insist a Master's degree either in Constitutional Law or in Maritime Law. On the other hand, the notification insists only a Master's degree in a relevant subject. Writ Appeal No.1500 of 2022 -: 11 :- 10. What remains to be considered is the question whether the fourth respondent holds a Master's degree in a relevant subject. As noted, the Scrutiny Committee consisting of academicians in the field of law has found that the Master's degree of the fourth respondent is in a relevant subject. Ordinarily, the question whether a particular subject is relevant with the concerned subject is a matter of academic issue which can be decided only by the academicians and not by the Court. In this context, it is worth referring to the judgment of the Apex Court in **Dalpat Abasaheb Solunke** . Paragraph 9 of the judgment in the said case reads thus: “9. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is Writ Appeal No.1500 of 2022 -: 12 :- not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its Jurisdiction.” (underline supplied) Reverting to the facts, in the absence of any allegation of malice, according to us, this Court is bound to respect the decision taken by the Committee which scrutinised the applications consisting of expert academicians, that the subject on which the fourth respondent holds a Master's degree is relevant, even though the view that one who has studied only some aspects of Constitutional Law can also teach Constitutional Law and Maritime Law, appears to us to be slightly illogical. Anyhow, it is unnecessary for us to delve deep into that aspect, in the absence of any challenge to the prescription as regards the minimum qualifications contained in the UGC Regulations as also in the absence of any allegations of _mala fide_ against the members of the Committee which scrutinised the applications. Needless to say, the arguments advanced by the learned counsel for the appellant Writ Appeal No.1500 of 2022 -: 13 :- are only to be rejected. In the aforesaid view of the matter, we do not find any reason to interfere with the decision of the learned Single Judge. The writ appeal, in the circumstances, is dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE.** Sd/- **SOPHY THOMAS, JUDGE.** ds 31.01.2023 Writ Appeal No.1500 of 2022 -: 14 :- ## **APPENDIX OF WA 1500/2022** ## **RESPONDENT ANNEXURES** - **Annexure R4(a) A TRUE COPY OF THE COURSE DETAILS OF LLM PROGRAMME OF UNIVERSITY OF KERALA** - **Annexure R4(b) A true copy of the relevant portions of the UGC Regulations 2018** - **Annexure R4(c) A true copy of the Certificate dt. 01.06.2012 issued by the University of Kerala** - **Annexure R4(d) A true copy of the NET qualification certificate dt. 16.12.2011 issued to the 4th respondent by the UGC** - **Annexure R4(e) A true copy of the JRF award letter dt 23.03.2012 issued to the 4th respondent by the UGC** - **Annexure R4(f) A true copy of the PhD certificate dt. 31.05.2018 issued by the University of Kerala** - **Annexure-R1(a) A true copy of the minutes of the Scrutiny Committee constituted to scrutinise the applications received for the post Sl.No.2-Assistant Professor-Constitutional Law/Maritime Law (Muslim) in School of Legal Studies** **Annexure-R1(b) A true copy of the mark list of the 4th respondent**