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2017 DIGILAW 52 (KER)

VIDHYA I. v. VS COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY

2017-01-09

ANU SIVARAMAN

body2017
JUDGMENT : The issue raised in this writ petition is with regard to the legality of appointments made by the selection committee to the post of Assistant Professors in Economics in the Sree Kerala Varma College, Thrissur. 2. It is submitted that the educational agency was permitted to fill up various vacancies in the Colleges run by it. A notification dated 2.9.2013 was published as prescribed and applications were received in pursuance thereto, pursuant to which the petitioner as well as the 4th respondent had applied. The last date for submission of application was on 1.10.2013. An interview was conducted on 18.5.2014 and Exhibit P4 is the score sheet. A ranked list was published and by Exhibit P6 order dated 19.6.2014, the 4th respondent who had secured first rank was appointed. This is under challenge in this writ petition on the ground that the 10 marks awarded to the 4th respondent for Ph.D by the selection committee was erroneous. 3. Heard learned counsel for the petitioner, the learned Standing Counsel for the 1st respondent Board, learned Standing Counsel for the University and the learned Senior Counsel appearing for the 4th respondent. 4. The primary contention raised against the selection by the learned counsel for the petitioner is that the award of ten marks as weightage to the 4th respondent for Ph.D as is evident from Exhibit P4 score sheet by the selection committee was totally illegal. It is submitted that the notification inviting applications was dated 2.9.2013. Applications were to be submitted on or before 1.10.2013. Though the 4th respondent submitted her thesis on 31.12.2012, Ph.D was awarded only on 28.2.2014. It is contended that as on the last date for submission of application, the 4th respondent did not possess the Ph.D. Even as on the date of interview, the Ph.D had not been awarded. It is therefore contended that the award of additional marks for Ph.D was patently irregular. If those additional marks are deducted, the petitioner would be entitled to be placed above the 4th respondent in the ranked list and would be entitled to be appointed, since two vacancies had been filled up, it is contended. It is therefore contended that the award of additional marks for Ph.D was patently irregular. If those additional marks are deducted, the petitioner would be entitled to be placed above the 4th respondent in the ranked list and would be entitled to be appointed, since two vacancies had been filled up, it is contended. The learned counsel relied on the decision of the Apex Court in Rekha Chaturvedi v. University of Rajasthan [(1993) Supp (3) SCC 168] to contend that relevant date for adjudging qualification would be the last date of filing applications and not the date of selection. The decision of the Apex Court in Hitendra Singh v. P.D.Krishi Vidyapeeth [ (2014)8 SCC 369 ] is also relied on to contend that where selection is found to be vitiated by illegalities, delay cannot be pleaded by the candidate who was the beneficiary of the illegality as a groud to sustain the tainted appointment. 5. The learned Senior Counsel appearing for the 4th respondent would contend that Exhibit P5 are only guidelines issued by the University for award of marks and has no statutory force. Section 58 of the Calicut University Act prescribes the qualification for appointment. Section 60 provides for enactment of Statutes prescribing conditions of service. Statute 3 of Chapter 2 of the Calicut University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statutes, 1979 provides for advertisement in two English and two Malayalam daily newspapers approved by the University giving a minimum period of thirty days for the aspirants to apply. Statute 4 of Chapter 2 specifies in detail the constitution of selection committee for appointments. Matters like quorum for meetings of the selection committee and the method of selection are also provided in detail in Statutes 5 and 10 of Chapter 2. It is, therefore, contended that since the 4th respondent possess all the qualifications prescribed for appointment to the post in question and no allegations having been raised as against the constitution of the selection committee, the challenge against the selection is totally devoid of merits. It is argued that the 4th respondent being a fully qualified person in terms of Section 58 of the Calicut University Act and it being an admitted fact that she has a doctorate in the concerned subject, this Court would not be justified in interfering with the appointment made in June, 2014. It is argued that the 4th respondent being a fully qualified person in terms of Section 58 of the Calicut University Act and it being an admitted fact that she has a doctorate in the concerned subject, this Court would not be justified in interfering with the appointment made in June, 2014. The delay of the University in awarding the Ph.D should not prejudice her, it is contended. 6. Relying on Section 57 of the Calicut University Act, it is further contended that the petitioner had an efficacious alternate remedy of approaching the Tribunal and that the writ petition filed without availing the said remedy is not maintainable. It is further contended that Exhibit P5 guidelines stood amended by Exhibit R4(a) proceedings dated 19.5.2014 which would essentially be retrospective in operation. It is, therefore, argued that the award of 10 marks for Ph.D was well in order. Relying on Rekha Chaturvedi's case (supra), it is contended that the appointments, even if illegal should not be disturbed long after they are effected. 7. Learned counsel for the educational agency would submit that procedures prescribed for selection have been scrupulously followed by the educational agency and there is no illegality vitiating the proceedings. It is further submitted that the select list was produced before the Ombudsman and before a Division Bench of this Court in D.B.P.No.64 of 2014 and the University had been directed to consider all relevant aspects while granting approval. It is further stated in the counter affidavit that a candidate becomes eligible for weightage for additional qualification as on the date of interview. 8. I have considered the contentions advanced. This writ petition was filed on 29.8.2014 soon after the 4th respondent was appointed in persuance of the selection conducted. The writ petition was admitted on 1.9.2014 and approval of appointment of the 4th respondent was made subject to result of the writ petition. Pleadings were completed in the writ petition, on the merits of the matter as well. In the above circumstances, the contention now urged that the writ petition is not maintainable in view of the efficacious alternate remedy of appeal under Section 57(10) of the Calicut University Act cannot be pressed into service to non suit the petitioner at this late hour. Section 57 of the Act provides for appointment of teachers in private colleges. In the above circumstances, the contention now urged that the writ petition is not maintainable in view of the efficacious alternate remedy of appeal under Section 57(10) of the Calicut University Act cannot be pressed into service to non suit the petitioner at this late hour. Section 57 of the Act provides for appointment of teachers in private colleges. Section 57(1A) reads as follows: "(1A) Appointment to the lowest grade of teacher in each department of a private college shall be made by the educational agency by direct recruitment on the basis of merit." Section 58 of the Act provides the qualification of teachers of colleges affiliated to the University. Statute 10 of the Calicut University (Conditions of Service of the Teachers and Members of Non-Teaching Staff) First Statutes, 1979 provides for method of selection of teaching staff by educational agencies. Statute 4 provides for the Constitution of a selection committee for appointments. Statute 10(3) reads as follows: "(3) The Selection Committee shall prepare the select list on the basis of merit and appointments shall be made only in the order of merit as indicated in the list. No candidate who has been included in the select list on the basis of merit shall be passed over by a person ranked lower in the same list. Where candidates are bracketed for merit purposes, the Selection Committee shall specifically mention that fact in the list." 9. The University has prescribed uniform guidelines for the award of marks by the selection committee. The selection committee is duty bound to follow this uniform procedure. A Division Bench of this Court in W.A.No.1680 of 2014 has clearly held that the guidelines are binding on the management as well as the Managing Committee. Exhibit R4(a) relied on by the learned counsel for the 4th respondent deals only with the date of possession of the qualification of NET/JRF and does not make any amendment to Exhibit P5, in so far as the conferment of Ph.D is concerned. 10. It is clear that the guidelines for award of marks in respect of the selection in question was Exhibit P5, since the interview was conducted on 18.5.2014. 10. It is clear that the guidelines for award of marks in respect of the selection in question was Exhibit P5, since the interview was conducted on 18.5.2014. Exhibit P5 provides for award of ten marks in the interview for candidates having NET & Ph.D. However, the selection committee has awarded 10 marks for Ph.D which the 4th respondent had not been conferred with even on the date of the interview. Since Exhibit P5 guidelines do not provide for award of marks for Ph.D before it is conferred, the award of 10 marks to the 4th respondent on that count was vitiated. In the result, Exhibit P4, to the extent it grants 10 marks to the 4th respondent for Ph.D is set aside. The 1st respondent Management is directed to take further steps to revise the ranked list by reducing 10 marks from the marks awarded by the selection committee to the 4th respondent and to rework the list accordingly. The orders appointing the 4th respondent as Assistant Professor are also set aside. Appointments shall be made in accordance with the ranking in the select list, as revised, within one month from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly.