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2011 DIGILAW 352 (KER)

P. Satheesha Nambiar v. The University Of Calicut

2011-03-25

K.T.SANKARAN

body2011
JUDGMENT K.T.Sankaran, J. 1. The reliefs sought for in the Writ Petition is to issue a writ of mandamus or any other appropriate writ order or direction to the Controller of Examinations, University of Calicut to appoint the petitioners as Internal Examiners to the First M.B.B.S. Examination. 2. The first petitioner is working as Professor in Anatomy Department of K.M.C.T. Medical College. He has teaching experience for 21 years. The second petitioner is working as Associate Professor in the Physiology Department of the same college. He has an experience of teaching the medical students for 12 years. Both of them possess the degree of MSC and Ph.D in Medical Anatomy and Medical Physiology respectively. The petitioners say that they have all the qualifications to be appointed as Internal Examiners for the First M.B.B.S. Examination conducted by the University. 3. The Medical Council of India issued regulations, namely, Regulations on Graduate Medical Examination, 1997 which provide for appointment of examiners. The regulations provide that the University having more than one college shall have separate sets of examiners for each college, with internal examiners from the college concerned. The petitioners say that they are qualified to be appointed as Internal Examiners. However, they were not included in the list of Internal Examiners. 4. The petitioners submitted a petition under the Right to Information Act to the third respondent to furnish the eligibility criteria of the Calicut University for appointment of Internal Examiners. The third respondent replied that the University is following the same criteria framed by the Director of Medical Examination, Thiruvananthapuram for the appointment of examiners for M.B.B.S. course. The petitioners were not satisfied with the reply. They filed an appeal. Exhibit P2 order was passed, disposing of the appeal, holding that the method and procedure for appointment of examiners in an examination conducted by the University is a confidential matter, which needs maintenance of secrecy. The appeal was accordingly rejected. The petitioners sent several communications to the University to which replies were also sent by the University. According to the petitioners, the University is not prepared to furnish the required information and disclose the real facts. Lastly, the petitioners sent Exhibit P7 lawyers notice to the Controller of Examinations, Vice Chancellor and the Registrar of the University of Calicut calling upon them to include the petitioners in the panel of Internal Examiners for the First MBBS Examination. 5. Lastly, the petitioners sent Exhibit P7 lawyers notice to the Controller of Examinations, Vice Chancellor and the Registrar of the University of Calicut calling upon them to include the petitioners in the panel of Internal Examiners for the First MBBS Examination. 5. In the counter affidavit filed on behalf of respondents 1 to 3, it is interalia contended as follows : The petitioners are working in a self-financing Medical College. The University has no record regarding the appointment of the petitioners. The petitioners were not appointed by a duly constituted selection committee and their appointments have not been approved by the University. Since the appointment of the petitioners have not been approved by the University, they cannot claim that they are entitled to the benefits which the other approved teachers are entitled to. The matters relating to the appointment of examiners are exclusively within the domain of the appropriate body of the University and they are highly confidential. It was contended that the petitioners do not have a legal right for being appointed as Internal Examiners. Therefore, they are not entitled to seek the reliefs under Article 226 of the Constitution of India. A writ of mandamus can be issued only if the petitioners have a legal right and the respondents, in spite of having a corresponding duty, failed to discharge their duty. The appointment of examiners is a privilege granted by the University to the teachers. No person can compel the University that he should be appointed as an Internal Examiner. 6. A reply affidavit is filed in which it is pointed out that for the First year M.B.B.S. Examination 2009, the third respondent requested for sending the names of teachers from K.M.C.T. Medical College for being considered as Internal Examiners. Names of teachers were accordingly furnished and one among them was appointed as Internal Examiner. For First M.B.B.S. Supplementary internal examinations, teachers from self­-financing colleges were appointed as Internal Examiners. 7. Chapter IV of the Calicut University First Ordinances, 1978 provide for Appointment of Examiners. Ordinance 1 reads as follows: "1. Names of teachers were accordingly furnished and one among them was appointed as Internal Examiner. For First M.B.B.S. Supplementary internal examinations, teachers from self­-financing colleges were appointed as Internal Examiners. 7. Chapter IV of the Calicut University First Ordinances, 1978 provide for Appointment of Examiners. Ordinance 1 reads as follows: "1. Appointment of Examiners and Question Paper Setters:- (1) Appointing of Question Paper Setters and, Examiners shall be made by the Controller of Examinations, with the approval of the Vice Chancellor, from a panel of approved by the Syndicate on the recommendation of the Boards of Studies and Faculties and/or from the list of teachers prepared as per Ordinance 6." Ordinance 6 provides for compilation of a list of teachers employed in the affiliated colleges and teachers of the University. Ordinance 7 provides for the Term of Appointment and Ordinance 8 provides for the General Conditions for appointment of Examiners. The process of appointing an Examiner or a Question Paper Setter is not the same as appointing a qualified hand to a post. Where a person is to be appointed to a post, applications would be called for and all persons who are qualified would be entitled to apply. The selection of Examiners is from among the teachers. The work to be entrusted to them is highly confidential. The recommendation of the Board of Studies and Faculties and the decision of the Syndicate is required for that purpose. No teacher is entitled to claim as a matter of right that he should be selected as an Examiner by the University. There is no such vested right. Selection as an Examiner is a privilege and not a right. I am of the view that the petitioners do not have a legal right to found a claim for being appointed as Internal Examiners. There is no corresponding duty for the respondents to appoint the petitioners as Internal Examiners. Therefore, a writ of mandamus will not issue as prayed for. The Writ Petition lacks merit and it is accordingly dismissed.