Rafidha Rehiman.K.A Arakkal v. Cochin University of Science and Technology

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 13TH DAY OF MARCH 2019 / 22ND PHALGUNA, 1940** **WP(C).No. 21570 of 2018** ## **PETITIONER/S:** **RAFIDHA REHIMAN.K.A ARAKKAL, JUDGEMUKKU,THRIKKAKARA, KOCHI-682 021.** **BY ADVS. SRI.P.RAMAKRISHNAN SMT.ASHA K.SHENOY SMT.PREETHI RAMAKRISHNAN (P-212) SRI.C.ANIL KUMAR SRI.PRATAP ABRAHAM VARGHESE** ## **RESPONDENT/S:** **1 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY KALAMASSERY, KOCHI-682 022, REPRESENTED BY ITS REGISTRAR. 2 THE VICE CHANCELLOR COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KALAMASSERY, KOCHI-682 022.** **BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI, SC, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 21570 of 2018** 2 ## **J U D G M E N T** The issue relates to the selection and appointment to the post of Assistant Professor in Computer Application in the Cochin University for Science and Technology (herein after referred to as 'the University'). 2. The University invited applications for appointment to the post of Assistant Professors in various disciplines, as per Ext.P2 notification issued on 17.08.2015. Petitioner submitted her application; interview was held in March, April, 2018. None of the candidates were selected for the discipline Computer Application. Petitioner has produced Ext.P9 consolidated mark sheet, in which none of the 9 candidates who appeared in the interview is ranked. Out of the 9 candidates, petitioner is having the highest score with a total of 61. Her score in various heads are as follows: “Academic qualification 22/30 **WP(C).No. 21570 of 2018** 3 Research Publication and Academic Activities: 16/20; Assessment of Domain Knowledge and Teaching Skills domain knowledge:13/15; teaching skill:5/15. Interview:5/20.” 3. However, she happens to be the highest scorer; the next candidate below her is one Smt.Nejiya A. K with 53 marks. The marks of other candidates are 39, 36, 38, 33, 34, 35.5 and 39.7 respectively. 4. Reasons stated for not drawing the rank list is that, the selection committee had prescribed 70 as the cut off marks for inclusion in the ranked list and none of the candidates could score 70 marks. Petitioner has produced the score sheet in respect of other disciplines for which also applications were invited as per Ext.P1 notification. She has also produced Ext.P4 consolidated marks list in the case of Associate Professor (Computer Application) for which cut off marks prescribed by the selection committee was 65. The rank list was drawn with 4 **WP(C).No. 21570 of 2018** 4 candidates. Petitioner has also produced other rank lists with respect to the post of Assistant Professor (Electronics and Communication), where 9 candidates are included in the rank list with Rank No.1 having 77.5 marks and the last candidate with 50.7 marks. Ext.P6 is the rank list in respect of Assistant Professor-VLSI Technology/Embedded Systems (Open) where also 8 candidates are included with marks between 70.6 and 50. This is for the open category. For the post of Assistant Professor-Microwave Electronics earmarked for SC candidates, Ext.P7 rank list with 8 persons with marks between 48.5 marks and 42 marks for the last rank holder are included in the rank list. 5. According to the petitioner, she has been taking classes in the Cochin University itself for the last several years in the very same subject and it is alleged that cut off marks fixed by the selection committee for the reserved vacancy of Muslim in the discipline Computer Application, which is higher than the cut off marks **WP(C).No. 21570 of 2018** 5 fixed for selection to the post of Associate Professor in open category is arbitrary. Petitioner has also alleged that awarding of very low marks for interview and teaching skill in her case is arbitrary. Ext.P1 notification was issued inviting applications for appointment against vacancies in 12 disciplines. The exorbitant cut off marks have been prescribed only for the discipline Computer Application reserved in Muslim turn. 6. Respondents have filed a counter affidavit stating that the cut off marks was fixed by the selection committee, which is competent to do so. Even though, the petitioner scored 61 marks out of 100 and she is the candidate who scored the highest marks, she failed to obtain the minimum cut off marks i.e., 70 marks fixed by the selection committee. It is further stated petitioner got very low marks in the assessment of teaching skills and in interview, though she got good marks in her academic qualification, research, publication, academic **WP(C).No. 21570 of 2018** 6 activities and domain knowledge. It is stated that the Syndicate had in its meeting held on 27.05.2016 approved the PBAS format for Assistant Professors and based on that University issued Ext.R1(a) order for assessing the candidates fixing the maximum points limited to 10. In Ext.R1(a), it is stated that the candidates with total score less than 40 points (for SC/ST candidates it is 35 points) shall not be ranked. However, it was stated that the actual cut off marks (equal to or higher than the minimum stated above) for preparing the rank list shall be decided by respective selection committees. In the case of Computer Application the selection committee fixed the cut off marks at 70 and the petitioner was very much aware of the authority of the selection committee to fix the cut off marks. It is also stated that the PBAS format was devised by the University as per UGC (Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of **WP(C).No. 21570 of 2018** **==> picture [7 x 9] intentionally omitted <==** Standards in Higher Education (2[nd] Amendment) Regulation 2013). It is further stated that it is the prerogative of each selection committee to fix the cut off marks for a particular selection for which it is constituted. 7. Learned counsel for the petitioner submits that rank list should have been drawn on the basis of the performance of candidate without fixing such high marks as minimum cut off marks. 8. On the other hand, it is the contention of the learned Standing Counsel that in the absence of any allegations of _mala fides_ against the selection Committee, no interference is warranted under Article 226 of the Constitution of India as the selection committee is constituted by experts in the respective fields. 9. Learned counsel for the petitioner relied on the judgment of this Court dated 28.01.2019 in W.P. (C).No.19465 of 2018 and argued that the selection conducted was not in accordance with law. **WP(C).No. 21570 of 2018** 8 10. But as rightly pointed out by the learned Standing Counsel for the University, no such ground is seen to have urged in this writ petition. 11. According to the learned Standing counsel for the University, selection committee in each post in each discipline would be different and there cannot be same cut off marks for all the posts. Therefore it is contended that there is no arbitrariness in fixing the cut off marks for the post of Assistant Professor in Computer Application at 70. 12. Having heard the contentions on both sides, I find that but for the fixing of minimum cut off marks at 70, petitioner and at least some of the other candidates would have been included in the rank list as they are seen to have fulfilled the eligibility criteria, prescribed by the University as well as UGC. At least 2 out of the 9 candidates are seen to have secured marks between 61 and 53. In the rank list for Associate Professor in the very same **WP(C).No. 21570 of 2018** 9 discipline, those who scored lower marks are included. 13. It is settled law, as pointed out by the learned Standing Counsel relying on the judgment in **Neelima Misra v. Harinder Kaur Paintal** [(1990) 2 SCC 746], that in matters relating to selection or appointment in the academic field the Court would not interfere generally as it does not have the requisite expertise as in the case of the selection committee comprised by the experts in the field and also that in the absence of any allegation against the members of the selection committee, interference is unwarranted. It is also settled law that the High Court need only see whether there is any statutory violation and that the Courts under Article 226 are supposed to keep themselves aloof from academic matters including selection. But, in this case the issue does not relate to any comparative evaluation of candidates; it does not relate the qualification for the post. It is a case where there is no ranked **WP(C).No. 21570 of 2018** 10 list after completion of a process of selection in which 9 candidates appeared and two including the petitioner got marks between 51 and 62, as against the minimum of 40 marks prescribed by the University. Though PABS provides that the selection committee is free to fix a different cut off mark, I find that there is an element of arbitrariness. Though there is no allegation of _mala fides_ against the members of selection committee, the malice in law in fixing such a high cut off marks has resulted in arbitrariness. When the selection committee is supposed to fix the cut off marks well before the interview started, there is no basis for the contention of the respondent that her non-selection is because of poor marks in the interview or teaching skill. Respondents admit that petitioner continues to teach in the very same university. Though petitioner has produced the documents indicating the assessment made by the students, I do not propose to go into those aspects, as that is a matter for the experts to decide. **WP(C).No. 21570 of 2018** 11 14. The question arising here is with respect to the unusually high marks fixed as minimum cut off marks for a particular post in a particular discipline and in a particular reservation turn, which stands isolated among the 33 posts against which selection was made by a single notification, though by different selection committees, when the minimum marks prescribed by the University as well as the UGC is only 40. In this case, 2 out of the 9 candidates got marks above 50 and 60, whereas the marks prescribed by the University was 40 only. Even without any expertise it can be seen that fixing a minimum cut off marks at 70 in a particular discipline alone has resulted in non-inclusion of any of the candidates in the rank list/non-publication of a rank list which amounts to malice in law; therefore, it cannot be said that this Court shall not interfere in such circumstances. Therefore, I direct the respondent University to constitute a fresh selection committee and to conduct **WP(C).No. 21570 of 2018** 12 a fresh selection from among the candidates already submitted application, within a period of 'three months' from the date of receipt of a copy of the judgment. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA, JUDGE.** AS **WP(C).No. 21570 of 2018** 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF NOTIFICATION DATED 6/2/2015 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P2 TRUE COPY OF NOTIFICATION DATED 17/8/2015 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF NOTIFICATION DATED 17/8/2015 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF RANK LIST OF ASSOCIATE PROFESSORS PREPARED AFTER THE INTERVIEW HELD ON 7/12/2016** - **EXHIBIT P5 TRUE COPY OF NOTIFICATION DATED 27/3/2018 PUBLISHED BY THE 1ST RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF NOTIFICATION DATED 27/3/2018 PUBLISHED BY THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF RANKED LIST FOR APPOINTMENT TO THE POST OF ASSISTANT PROFESSOR -MICROWARE ELECTRONICS (SC) IN THE DEPARTMENT OF ELECTRONICS.** - **EXHIBIT P8 TRUE COPY OF RECOMMENDATION OF THE SELECTION COMMITTEE** - **EXHIBIT P9 TRUE COPY OF CONSOLIDATED MARK SHEET OF THE CANDIDATES UNDER DIFFERENT HEADS.** - **EXHIBIT P10 TRUE COPY OF PBAS SHEET RELATING TO THE PETITIONER.** - **EXHIBIT P11 TRUE COPY OF CONSOLIDATED STATEMENT OF FEEDBACK FROM THE STUDENTS ABOUT TEACHERS OF THE DEPARTMENT OF COMPUTER** **WP(C).No. 21570 of 2018** 14 **APPLICATION FOR THE ODD SEMESTER 201617.** - **EXHIBIT P12** - **TRUE COPY OF CONSOLIDATED STATEMENT OF FEEDBACK FROM THE STUDENTS ABOUT TEACHERS OF THE DEPARTMENT OF COMPUTER APPLICATION FOR THE ODD SEMESTER 201617.** - **EXHIBIT P13 TRUE COPY OF CONSOLIDATED STATEMENT OF FEEDBACK FROM THE STUDENTS ABOUT TEACHERS OF THE DEPARTMENT OF COMPUTER APPLICATION FOR THE ODD SEMESTER 201718.** - **EXHIBIT P14 TRUE COPY OF RECOMMENDATIONS OF THE SELECT COMMITTEE IN RESPECT OF THE SELECTION TO THE POSTS OF ASSISTANT PROFESSOR.** - **EXHIBIT P15** - **TRUE COPY OF RECOMMENDATIONS OF THE SELECT COMMITTEE IN RESPECT OF THE SELECTION TO THE POSTS OF ASSISTANT PROFESSOR.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A)** - **TRUE COPY OF THE UNIVERSITY ORDER NO.AD.D2/UGC.REG.2010/CAS/2012 DATED 29.06.2016 ALONG WITH THE APPROVED PBAS FORMAT FOR ASSISTANT PROFESSOR (APPLICABLE FOR FACULTIES OF ENGINEERING AND TECHNOLOGY)** - **EXHIBIT R1(B)** **TRUE COPY OF THE RELEVANT PAGES OF THE GAZETTE NOTIFICATION NO.F1-2/2009 (EC/PS) V(I) VOL.II DATED 13.06.2013.**