UNIVERSITY OF KERALA v ANAS N. AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **WEDNESDAY, THE 20TH DAY OF MAY 2020 / 30TH VAISAKHA, 1942** ## **WA.No.12 OF 2019** ## **AGAINST THE JUDGMENT IN WP(C) 30605/2017(A) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 2 TO 4** |**1**|**UNIVERSITY OF KERALA**| |---|---| ||**REPRESENTED BY ITS REGISTRAR,**| ||**UNIVERSITY OF KERALA,**| ||**THIRUVANANTHAPURAM 695 001**| |**2**|**VICE CHANCELLOR,**| ||**UNIVERSITY OF KERALA,**| ||**THIRUVANANTHAPURAM 695 034**| |**3**|**THE REGISTRAR,**| ||**UNIVERSITY OF KERALA,**| ||**THIRUVANANTHAPURAM 695 034**| ## **BY ADV. SRI.THOMAS ABRAHAM** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 5:** |**1**|**ANAS N.**| |---|---| ||**ASSISTANT PROFESSOR,**| ||**DEPARTMENT POLITICAL SCIENCE,**| ||**M.S.M. COLLEGE, KAYAMKULAM ,**| ||**KOLLAM 690 502**| WA No.12/2019 -:2:- **2 MANAGER/SECRETARY , M.S.M.COLLEGE, KAYAMKULAM, KOLLAM 695 034 3 JAYAPRAKASH, AGED 38 YEARS S/O. KARUNAKARAN, ASSISTANT PROFESSOR, DEPARTMENT OF POLITICAL SCIENCE, M.S.M. COLLEGE, KAYAMKULAM ALAPUZHA DISTRICT – 695 034** **R1 BY ADV. SRI.S.MUHAMMED HANEEFF R1 BY ADV. SRI.M.H.ASIF ALI R2 BY ADV. SRI.BABU VARGHESE (SR.) R2 BY ADV. SRI.C.V.ALEXANDER R2 BY ADV. SMT.CAROLIN SUSAN JOHNSON R3 BY ADV. SMT.A.A.SHIBI** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17-022020, THE COURT ON 20-05-2020 DELIVERED THE FOLLOWING:** WA No.12/2019 -:3:- ## **J U D G M E N T** Dated this the 20[th ] day of May, 2020 ## _**Shaffique, J.**_ The appeal is filed by University of Kerala and its officers, challenging the judgment dated 26/9/2018 in WP(C) No. 30605/2017, by which the learned single Judge allowed the writ petition and directed the University to approve the appointment of the petitioner, subject to any challenge made by any aggrieved person, including the additional 5[th] respondent. 2. In fact, the petitioner challenged Ext.P7, a communication dated 27/10/2016 issued by the Registrar of the University to the Manager of M.S.M College, Kayamkulam. By the aforesaid communication, the University did not approve the appointment of Assistant Professors in the Department of Mathematics, Political Science and Physical Education. As far as the case on hand is concerned, the issue related to appointment of the petitioner in the Department of Political Science. The WA No.12/2019 -:4:- University found fault with the selection committee having not awarded marks for Ph.D qualification. Further, it was mentioned that the marks awarded for academic performance of graduation level exceeds the maximum limit of 5. 3. While impugning the aforesaid stand of the University, it was inter alia contended by the petitioner that once the statutory selection committee selects a candidate on merit and the select list is published, the University cannot modify or vary the same. It was further contended that even though the select list was prepared much earlier and an order of appointment had been issued as early as on 20/10/2015, as per Ext.P5, no action was taken by the University for quite some time and accordingly the petitioner had approached this Court challenging Ext.P7 and also for a direction to the University to approve the appointment of the petitioner within a time frame. 4. In a statement filed on behalf of the University and its officers, it was inter alia contended that after issuance of Ext.P7, the management rectified the defects in respect of 2 subjects, except Political Science. It is stated that the educational agency WA No.12/2019 ## -:5:- has not followed the criteria fixed by the University for awarding marks under various heads. When the defects came to be noticed, the matter was informed to the educational agency. But since no action had been taken in the matter, the appointment was not approved. By Ext.P7 communication, the educational agency was asked to rectify the defects since the management failed to grant 15 marks for Ph.D and journals published by the candidates. They were also asked to make necessary correction in the award of marks at graduate level of candidates. It was further stated that if 15 marks was awarded for Ph.D holders, the rank position would have changed. 5. The learned single judge, however disposed of the Writ petition on a limited ground. It was observed that the University can only consider as to whether the candidate is qualified or not. If the selection was defective, it has to be challenged before a competent forum and the University cannot interfere with the selection process as it is not an appellate authority or an adjudicating authority to decide upon such matters concerning award of marks in the selection process. In other words, learned WA No.12/2019 -:6:- Single Judge did not feel it necessary to go into the merits of the contentions urged by the University. 6. Learned counsel for the University submitted that, as per the norms prescribed by the University, Ph.D holders have to be given 15 marks as weightage, which is evident from the Norms and Procedure for Selection of Teachers for Appointment in Private Affiliated Colleges, published by the University. The said document had been produced as Ext.R3(p) along with the counter affidavit filed by the 3[rd] respondent. In the counter affidavit filed in the writ appeal, it is inter alia contended that if 15 marks is awarded to him for having the qualification of Ph.D, he will be having a better rank than the writ petitioner. He has also filed WP(C) No. 42179/2018 before this Court seeking for a direction that rank number one should be assigned to him taking into account index marks for the B.Ed, M.Phil and Ph.D qualifications and also 3 publications in approved journals of the University. 7. We heard the learned counsel appearing on either side. Apparently the learned single Judge did not go into the merit of the contentions urged on either side, whereas learned single WA No.12/2019 ## -:7:- Judge proceeded on the basis that the University cannot interfere with the selection process and it cannot adjudicate on matters concerning award of marks in the selection process. According to us, this finding cannot be sustained. There is no dispute about the fact that it is for the Syndicate of the University to approve every appointment made by a Management based on a selection being conducted by a statutory selection committee. It is also not in dispute that, as per Statute 14 of the Kerala University First Statutes, the Syndicate shall give such approval, if the appointment is made in accordance with the staff pattern fixed by the University and that the person so appointed is fully qualified to the post. In fact, a Division Bench of this Court had occasion to consider an almost similar provision which appeared in the Calicut University First Statutes, 1979, in _**University of Calicut and another v. Dr.Rajani R. and another**_ (WA No.1680 of 2014). The question considered was whether the University of Calicut and it’s Syndicate Committee has the power to refuse approval to an appointment of a teacher in an unaided College, interfering with the award of marks by the selection WA No.12/2019 ## -:8:- committee. While considering the said issue, the Division Bench held that the Syndicate's duty include maintenance of efficiency and it has the power to direct investigation into the affairs of private colleges, to issue instructions for maintaining their efficiency, in the event of total disregard of any such instructions and to modify the conditions of affiliation or recognition and to take such other steps as it deems proper in that behalf. It was therefore held that Statute 14, which is similar to that in the Kerala University First Statutes read along with the powers of the Syndicate and the University would show that the Syndicate was perfectly within its competence to verify the records leading to the selection and to ensure that the selection was made in accordance with the norms issued by the University. It was further observed that when the proposal for approval is send to the University along with the records of selection, including the notification and minutes of selection committee, which contains the index marks awarded to each of the candidates, it is for the Syndicate to ensure that the selection is conducted in accordance with the procedure prescribed. If the Syndicate is of the view that WA No.12/2019 -:9:- the University norms are not being followed, it is well within the power of the Syndicate not to approve the selection. A contrary view, which has now been expressed by the learned single Judge would be against the power available with the Syndicate of the University to approve the appointments, and it would lead to lack of uniformity and transparency in the selection process. 8. In so far as the learned single Judge did not consider the merits of the contentions urged by the University and has allowed the writ petition on the limited ground that the University cannot interfere with the selection process and since we have taken a different view, it is only appropriate that the matter is remitted back to the learned single Judge for considering the respective contentions of the parties on merits. That apart, the 5[th] respondent in the writ petition, who is the 3[rd] respondent herein, has also filed WP(C) No. 42179/2018 before the learned single Judge, to reassign the ranking of the candidates, in which event, it is only appropriate that both the matters are heard together. In the result, this appeal is allowed and the matter is remitted back to the learned single Judge for hearing on merits. It WA No.12/2019 -:10:- shall be open for the parties to seek for joint hearing of the above writ petition along with WP(C) No. 42179/2018. **Sd/-** **A.M.SHAFFIQUE** **JUDGE Sd/-** **MARY JOSEPH** Rp **JUDGE** WA No.12/2019 ## -:11:- ## **APPENDIX** ## **APPELLANTS' EXHIBITS:** - **ANNEXURE R1(a)** - **A TRUE COPY OF THE CIRCULAR BEARING NO.07/2017 DT.03.06.2017 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION AND THE ENGLISH TRANSLATION OF THE RELEVANT PORTION OF THE SAME.** - **ANNEXURE R1(b) TRUE COPIES OF THE RANK LIST FOR SELECTION TO THE POST OF ASSISTANT PROFESSOR IN OTHER SUBJECTS CONDUCT IN THE 2ND RESPONDENT COLLEGE.** - **RESPONDENT'S EXHIBITS** - **EXHIBIT R3(a)** **EXHIBIT R3(b)** - **TRUE COPY OF NOTIFICATION PUBLISHED IN MALAYALA MANORAMA DAILY DATED 5.6.2015** - **TRUE COPY OF CERTIFICATE OF MASTER OF POLITICAL SCIENCE ISSUED BY THE 1[ST] APPELLANTS UNIVERSITY** - **EXHIBIT R3(c) TRUE COPY OF CERTIFICATE OF BACHELOR OF EDUCATION ISSUED BY THE 1[ST] APPELLANT UNIVERSITY** - **EXHIBIT R3(d) TRUE COPY OF CERTIFICATE OF MASTER OF PHILOSOPHY IN POLITICAL SCIENCE ISSUED BY THE 3[RD] APPELLANT UNIVERSITY** - **EXHIBIT R3(e) TRUE COPY OF CERTIFICATE OF DOCTOR OF PHILOSOPHY ISSUED BY THE 3[RD] APPELLANT UNIVERSITY** - **EXHIBIT R3(f)** - **EXHIBIT R3(g)** - **TRUE COPY OF RESEARCH JOURNAL PUBLISHED IN HOLISTIC THOUGHT BEARING ISSN NUMBER 0975-363X** **TRUE COPY OF RESEARCH JOURNAL PUBLISHED IN HOLISTIC THOUGHT BEARING ISSN NUMBER 0975-363X** WA No.12/2019 ## -:12:- ## **EXHIBIT R3(h)** ## **EXHIBIT R3(i)** ## **EXHIBIT R3(j)** ## **EXHIBIT R3(k)** ## **EXHIBIT R3(l)** ## **EXHIBIT R3(m)** ## **EXHIBIT R3(n)** ## **EXHIBIT R3(o)** **EXHIBIT R3(p)** **TRUE COPY OF RESEARCH JOURNAL PUBLISHED IN HOLISTIC THOUGHT BEARING ISSN NUMBER 0975-363X** **TRUE COPY OF COMMUNICATION NO.19713/D2/15 H.EDN DATED 27.07.2015 ISSUED BY THE DIRECTOR OF COLLEGIATE EDUCATION** **TRUE COPY OF THE MINUTES OF COMMITTEE FOR THE SELECTION OF ASSISTANT PROFESSOR IN THE DEPARTMENT OF POLITICAL SCIENCE IN THE M.S.M.COLLEGE** **TRUE COPY OF APPOINTMENT ORDER NO.MSMT/TS/1/2015-16 DATED 20-10-2015 ISSUED BY THE 2ND RESPONDENT** - **TRUE COPY OF APPOINTMENT ORDER NO.MSMT/TS/1/2015-16 DATED 20-10-2015 ISSUED BY THE 2ND RESPONDENT TO THE 8TH RESPONDENT.** - **TRUE COPY OF COMMUNICATION NO.G1/1213/2015 DATED 01-12-2015 ISSUED BY THE 2ND RESPONDENT BEFORE THE 1ST APPELLANT.** **TRUE COPY OF COMMUNICATION NO.AC.F1/52280/2016 DATES 27-10-2016 ISSUED BY THE 1ST APPELLANT TO THE 2ND RESPONDENT.** - **TRUE COPY OF STATEMENT OF MARKS AWARDED TO CADIDATES TO THE POST OF POLITICAL SCIENCE BY THE SELECTION COMMITTEE.** **TRUE COPY OF NORMS AND PROCEDURES FOR SELECTION OF TEACHERS FOR APPOINTMENT IN PRIVATE AFFILIATED COLLEGES ISSUED BY THE 1ST APPELLANT.** WA No.12/2019 ## -:13:- **EXHIBIT R3(q)** **EXHIBIT R3(r)** **EXHIBIT R3(s)** - **EXHIBIT R3(t)** **EXHIBIT R3(u)** - **EXHIBIT R3(v)** **EXHIBIT R3(w)** **TRUE COPY OF COMPLAINT FILED BY THE 3RD RESPONDENT BEFORE THE PRO-VICE CHANCELLOR OF THE APPELLANTS DATED 15.09.2017.** **TRUE COPY OF REVISED PROPOSALS SUBMITTED BY MANAGEMENT TO THE UNIVERSITY FOR THE APPROVAL OF APPOINTMENTS.** **TRUE COPY OF JUDGMENT DATED 22-2-2017 IN W.P(C) NO.4466/2017 OF THIS HON'BLE COURT** **TRUE COPY OF STATEMENT FILED BY THE STANDING COUNSEL FOR THE APPELLANTS DATED 18-11-2017.** **TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE APPELLANTS DATED 27-1-2018** **TRUE COPY OF IMPLEADING PETITION IN W.P(C) NO.30605/2017 BEFORE THIS HON'BLE COURT.** **TRUE COPY OF ORDER IN W.P(C) NO.42179 OF 2018 DATED 24.1.2019 OF THIS HON'BLE COURT** WA No.12/2019 -:14:-