Rajin K.P. v. University of Calicut and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29ND AGRAHAYANA, 1943** **WA NO. 861 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 16560/2015 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/PETITIONER IN THE WRIT PETITION (CIVIL):** RAJIN K.P., AGED 28 YEARS S/O.RAJAN K.P., OTHAYOTH HOUSE, KINALOOR P.O., BALASSERY (VIA), PIN -673 621. BY ADVS. P.CHANDRASEKHAR K.K.MOHAMED RAVUF D.SREEKANTH ANOOP KRISHNA ## **RESPONDENTS/RESPONDENTS IN THE WRIT PETITION (CIVIL):** 1 UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, UNIVERSITY CAMPUS, CALICUT UNIVERSITY P.O., THENJIPPALAM, MALAPPURAM DISTRICT, PIN - 673 635. 2 THE VICE CHANCELLOR UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THENJIPPALAM, MALAPPURAM DISTRICT, PIN - 673 635. 3 MOHAMMED FAZAL E. S/O.MAYINKUTTY, CHAMMALIL HOUSE, KOLAKKATTUCHALI P.O., MALAPPURAM DISTRICT - 673 634. 4 ABDUL NAZAR P. PULIYAN KAUDATHIL, KUZHIMANNA P.O., KIZHISSERRY, MALAPPURAM DISTRICT - 673 641. 5 HARESH M.V. S/O.VELAYUDHAN, MULLAPPALLI HOUSE, THIRUTHIKKAD P.O., PORKULAM, THRISSUR - 680542. **W.A.NO.861 of 2020** **:: 2 ::** *6 SAPIN M. MUNDRAL HOUSE, OLVALAV P.O., KANNUR - 673 313. (*DELETED) (THE 6TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK AND COST OF THE APPELLANT AS PER ORDER DATED 8.7.2021 IN WA 861 OF 2020) 7 NANDAKISHORE U. CHAKKAVIL HOUSE, FAROOQ, KOZHIKODE, PIN - 673 631. 8 JO ALEX, KOLLANNUR, JO ALEX BHAVAN, CHERUTHURUTHI P.O., THRISSUR DISTRICT - 679 531. *ADDL. AHAMED SHAFEEQUE M., R9 PROGRAMMER, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM DISTRICT, PIN-673635. (IS IMPLEADED AS ADDITIONAL 9TH RESPONDENT IN W.A.861/2020 AS PER ORDER DATED 19.2.2021 IN I.A.2/2020.) BY ADVS. BY K.SASIKUMAR, SC BY K.A.ANISH DR.GEORGE ABRAHAM THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2021, THE COURT ON 20.12.2021 DELIVERED THE FOLLOWING: **W.A.NO.861 of 2020** **:: 3 ::** ## **J U D G M E N T** ## Mohammed Nias.C.P, J The appellant/writ petitioner questions the judgment dated 21.12.2019 in WP(C)No.16560 of 2015 dismissing the challenge to the appointment of respondents 3 to 8 for the post of Programmer in the first respondent University based on Ext.P3 notification. The basic facts necessary for disposal of the above writ appeal are as follows:- The first respondent University invited application for selection to the post of Programmers and Assistant Programmers in the Calicut University Administrative Service, as per Ext.P3 notification dated 25.04.2014. The qualification fixed in the said notification is as follows:- M.Sc.Computer Science/M.Sc.Information Technology/MCA/B.Tech Computer Science/ B.Tech Information Technology/with 60% marks or an equivalent grade in point scale wherever grading system is followed and two year experience in the relevant field 2. It also contained a stipulation that the application should be accompanied by attested copies to prove age, **W.A.NO.861 of 2020** **:: 4 ::** qualifications, experience, failing which the registration will be treated as cancelled. It also contained another stipulation that in case of incomplete and late submission/non-submission of the above documents, the registration will be treated as cancelled without notice. Pursuant to the written test, a short list containing the register number of the candidates who were found provisionally eligible to be called for interview for the selection to the post of Programmers was notified on 12.05.2015 which also contained stipulations shown as Note (4) and (5), which are extracted hereunder: “Note(4) Candidates included in the Short List should present in person and produce the original and self attested copies of documents at the time of verification of documents on the date of interview. Note (5) If any candidate fails to produce original documents related to qualifications, experience, caste, community etc., on the date of interview, he will not be permitted to attend the interview. “ 3. By Ext.P5, ranked list was prepared, wherein, the petitioner figures as the 22[nd] rank holder. The writ petition was filed contending that the qualifications fixed for the selection was wrong as there is substantial variation with reference to the qualification prescribed in the Ordinance in both the academic and age qualification and with the one in Ext.P3 notification dated 25.04.2014. This contention was raised on the premise that no notification of selection can be made in violation of the prescribed **W.A.NO.861 of 2020** **:: 5 ::** qualification for the post in the Calicut University Ordinance, which governs the qualification for appointment of the non-teaching staff. Secondly, it was argued that the applications of respondents 3 to 8 should have been rejected at the threshold itself as the documents proving their experience, which is a mandatory requirement under Ext.P3 was not fulfilled by the said respondents. Thirdly, it was argued the the petitioner alone was given a favourable treatment by relaxing the requirement of producing the experience certificate after the preparation of the rank list, which goes against the notification and the stipulations extracted above. It was on these grounds that the selection of respondents 3 to 8 were impugned. 4. The first respondent University filed a counter affidavit pointing out that the selected respondents were qualified and also had the requisite experience and all that was done to them was giving a chance for them to produce the experience certificate before joining as the University was given to understand that the original experience certificates were being issued by the I.T. firms only at the time of resignation of the employees. It is also pointed out that the written test was conducted by an independent body, the LBS Centre for Science and Technology, Thiruvananthapuram, on behalf of the University and it was only those candidates who were qualified as per the notification who were permitted to attend the interview and there was no question of the respondents not being qualified. It is **W.A.NO.861 of 2020** **:: 6 ::** also pointed out in the counter affidavit that the petitioner is a MCA Degree holder and he became eligible to apply only because of the amended qualifications for filling up the post and he would not have been eligible to apply as per the norms that existed prior to the amendment. 5. The learned Single Judge after considering the rival contentions held that the petitioner was allowed to participate in the selection procedure only because of the amended Ordinance and that after the participation in the selection procedure and interview, he cannot turn around and attack the notification. The learned Single Judge also relied on the judgment of the Supreme Court **Ramesh Chandra Shah and others v. Anil Joshi and others** [2013 (11) SCC 309] in coming to the said conclusion. The learned Single Judge also found that though the party respondents did not produce their experience certificate and thus at the time of the interview, the ranked link was drawn up subject to the production of their original experience certificate and thus it cannot be said that the selection process was not transparent. As a matter of fact the Selection Committee had drawn up minutes taking into account the inability put forth by the candidates that the experience certificates will not be issued by the organisations where they were working until their resignation. The learned Single Judge also found that it was an admitted fact that experience certificates were produced by the party respondents subsequently, and it was accordingly that their **W.A.NO.861 of 2020** **:: 7 ::** appointments were regularised and they were continuing in service for the past more than five years. In that view of the matter, the learned Single Judge dismissed the writ petition. 6. Heard Adv.Mohamed Ravuf, the learned counsel appearing for the appellant, Adv.Dr.George Abraham, the learned Standing Counsel appearing for the University and Adv.K.Harikumar, the learned counsel appearing for the contesting respondents. 7. Before us, the learned counsel for the appellant Adv.K.K.Mohamed Ravuf, apart from reiterating the contentions urged before the learned Single Judge also invited our attention to the documents which the appellant received invoking the Right To Information Act and contended before us that the party respondents were not qualified at the time when they made the application pursuant to the notification and they did not have the experience certificate, even at the time of the interview and for that short reason their candidature should have been rejected. He also argued that the qualification in the Calicut University Ordinance was not followed vitiating the entire selection procedure. He vehemently argued that the documents issued by the University under the RTI Act, clearly proved that notwithstanding the lack of experience, the party respondents were selected and offered appointment. He also relies on the judgments in **District Collector v. Sundari Devi** (1990 **W.A.NO.861 of 2020** **:: 8 ::** KHC 287), **Kerala Public Service Commission v. Reshmi K.R and others** [2019(5) KHC 875], **Rajkumar and Others v. Shakti Raj and Others** (1997 KHC 1169), **Bishnu Biswas and Others v. Union of India and Others** (2014 KHC 4218), **Mukul Kumar Tyagi and Others v. State of Uttar Pradesh and Others** (2019 KHC 7257) and **Dr.(Major) Meeta Sahai v. State of Bihar & Ors.** (Civil Appeal No.9482 of 2019). 8. The learned counsel for the contesting respondents submitted that the selected candidates are all eligible having the requisite qualifications and no deviation has been made in respect of the essential qualifications required for the post. He also cites the judgment in **Taniya Malik v. Registrar General of High Court of Delhi** (2018 KHC 2874) for the proposition that the interview is the best method of judging the performance, over all personality and the actual working knowledge and capacity besides the capacity to perform. The selected candidates have performed better than the appellant and rightly got higher marks and no interference is called for on any score. He also cited the judgment of this Bench in WA No.1122 of 2020 to support the action of the University permitting production of experience certificate at a later stage as the same was not considered as an essential requirement by the University. 9. The learned counsel for the appellant argued on the **W.A.NO.861 of 2020** **:: 9 ::** basis of the decision in **Sundari Devi** (supra) that when an advertisement mentions particular qualification and the appointment made in disregard to the same, it is not just a matter between the appointing authority and the appointee concerned, but all those who are similar or even that better qualification than the appointee or the appointees would also be agreed in which case which amount to a fraud on public to appoint persons with inferior qualifications. We note that the said proposition of law admits of no doubt. In the instant case there is nothing on record to show that the selected candidates were ineligible on any count. It is one thing to say that there is lack of qualification and totally another to say that proof of the qualifications were not produced along with the application. The latter being the case on hand, we hold that the respondents cannot be said to be not qualified under the notification. All that the University did was to grant them time to produce experience certificates before joining, which we do not feel was incorrect and the said findings of the learned Single Judge calls for no interference. 10. The learned counsel also relied on the Full Bench decision in **Reshmi.K.R.** (supra). The learned counsel for the appellant argued that any candidate applying for a job should be careful in submitting their applications in compliance with the instructions and that the assessment starts from the application of the candidate itself. It has to be noticed that the said judgment pertains to a selection made by the Kerala Public Service **W.A.NO.861 of 2020** **:: 10 ::** Commission which conducts selection process, in which lakhs of applications are received and where the scrutiny is of such standard, as held by the Full Bench itself, that with the assessment starts from the very application itself and the candidates are expected to have the minimum responsibility to submit the application in tune with the instructions and any deviation there from is considered material. As stated above it was only with the permission of the first respondent University that the candidates in the instant case was granted time for production of experience certificate after the interview but before the appointment. In the instant case it is also to be noticed that the application inviting candidates for the appointment to the post of Programmer is only to five vacancies unlike, that being done by the PSC which is to an enormous number. The University has in the statement filed by them stated that they have made enquiry to find that the respondents were eligible with sufficient experience and the action of the University in granting time to produce the experience certificate cannot be in any way said to be irregular to vitiate the selection. In case where the University which called for the application chose to extend the time for production of documents, the courts usually defer to the decision of the entity which undertook the selection procedure. The learned counsel relies on the judgment in **Bishnu Biswas** (Supra), which was a case in the which the question of allotment of marks for the interview was in issue and it was held that the appropriate allocation of marks for interview, **W.A.NO.861 of 2020** **:: 11 ::** where the selection is to be made by a written test as well as by interview, would be depend upon the nature of post and no straight jacket formula can be laid down. Citing the judgment in **Mukul Kumar Tyagi** (supra), the learned counsel for the appellant argued that he cannot be non-suited for having challenged the selection in which he has also participated. It is to be stated that in normal cases entertaining challenge to the examination is not permitted where the candidate has appeared and participated and the candidate is precluded from turning around and contend that the process was unfair, merely because the result is not acceptable to the candidate. True, there can be cases where the cause of action for a challenge arises after the participation in a test like when persons included in the selection process lack the essential qualification. The proposition in **Mukul Kumar Tyagi** (supra) is unexceptionable, but the same has no application to the facts of the case. The learned counsel also argued with reference to **Dr.(Major) Meeta Sahai** (supra) to say that simply because he has participated in the process he need not accept the illegality in the same. The said judgment arose from a case where there was no challenge to the selection procedure, and therefore, it is clearly distinguishable. Under these circumstances, we are not in a position to accept the arguments on the side of the appellant that the selection is to be held as wrong much less illegal. We are in complete agreement with the findings in the judgment under appeal. **W.A.NO.861 of 2020** **:: 12 ::** We do not find anything illegal, warranting interference in the decision of the learned Single Judge. Accordingly, we dismiss this appeal. Sd/- ## **A.K.JAYASANKARAN NAMBIAR** **JUDGE** Sd/- **MOHAMMED NIAS C.P JUDGE** dlk/ 16/12/ **W.A.NO.861 of 2020** **:: 13 ::** ## **APPENDIX OF WA 861/2020** ## PETITIONER'S ANNEXURES ANNEXURE A1 TRUE COPY OF THE NOTIFICATION DATED 14/05/2014 ISSUED BY THE 1ST RESPONDENT. ANNEXURE A2 TRUE COPY OF THE LETTER NO.126606/AD-AASST-2/2015/ADMN DATED 30/01/2020 OBTAINED UNDER THE RIGHT TO INFORMATION ACT. ANNEXURE A3 TRUE COPY OF THE CONSOLIDATED MARK LIST OF THE POROGRAMMERS OBTAINED UNDER THE RIGHT TO INFORMATION ACT. ## RESPONDENTS ANNEXURES ANNEXURE R8(a): TRUE COPY OF THE INFORMATION OBTAINED UNDER RIGHT TO INFORMATION ACT, DATED 23.12.2020 FROM THE IST RESPONDENT. ANNEXURE R8(b): TRUE PRINT COPY OF 3RD RESPONDENT'S ONLINE APPLICATION FOR THE POST OF PROGRAMMER PRODUCED BEFORE THE IST RESPONDENT.