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Kerala High Court
Dr.Mohammed Aslam M.A vs The Central University Of Kerala on 21 May, 2024
WP(C)No.40096 of 2018
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1945
WP(C) NO. 40096 OF 2018
PETITIONER:
DR.MOHAMMED ASLAM M.A
SREYAS, KMC VIII/306, ANANGOOR,
VIDYA NAGAR P.O., KASARAGOD,
KERALA, PIN - 671 123.
BY ADVS.
P.K.IBRAHIM
SMT.K.P.AMBIKA
SRI.A.L.NAVANEETH KRISHNAN
RESPONDENTS:
1 THE CENTRAL UNIVERSITY OF KERALA
REPRESENTED BY ITS REGISTRAR,
TEJASWINI HILLS, PERIYE P.O.,
KASARAGOD, PIN - 671 316.
2 THE VICE CHANCELLOR,
THE CENTRAL UNIVERSITY OF KERALA,
TEJASWINI HILLS, PERIYE P.O.,
KASARAGOD, PIN - 671 316.
3 THE EXECUTIVE COUNCIL,
CENTRAL UNIVERSITY OF KERALA,
PERIYE P.O., KASARAGOD, PIN - 671 316
REPRESENTED BY ITS CHAIRMAN/VICE CHANCELLOR.
4 SELECTION COMMITTEE CONSTITUTED FOR THE POST OF
ASSOCIATE PROFESSOR IN GEOLOGY,
CENTRAL UNIVERSITY OF KERALA,
TEJASWINI HILLS, PERIYE P.O.,
KASARAGOD, PIN - 671 316.
5 DR. R. JAYANGONDA PERUMAL,
SCIENTIST E, WADIA INSTITUTE OF HIMALAYAN GEOLOGY,
33 GMS ROAD, DEHRADUN - 248 001.
*ADDL.R6 DR. PRATHEESH P.,
ASSOCIATE PROFESSOR, DEPARTMENT OF GEOLOGY,
SABARMATHI BUILDING, CENTRAL UNIVERSITY OF KERALA,
THEJASWINI HILLS, PERIYE,
WP(C)No.40096 of 2018
2
KASARAGODE, KERALA, PIN 671 320
(IS IMPLEADED VIDE ORDER DATED 01-08-2023 IN IA 2/22
IN WP(C) 40096/2018)
BY ADVS.
SRI.K.RAMAKUMAR (SR.)
SRI.S.M.PRASANTH
SRI.T.RAMPRASAD UNNI, SC, CENTRAL UNIVERSITY OF
KERALA
SAJITH KUMAR V.
VIVEK A.V.
SREEHARI V.S.
RONIT ZACHARIAH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR FINAL HEARING
ON 08.04.2024, THE COURT ON 21.05.2024 DELIVERED THE FOLLOWING:
WP(C)No.40096 of 2018
3
MOHAMMED NIAS C.P., J.
---------------------
WP(C)No.40096 of 2018
---------------------------
Dated this the 21st day of May, 2024
JUDGMENT
The challenge in this writ petition is the selection and appointment to the post of Associate Professor, in the Department of Geology under the Open Quota notified vide Ext.P1 dated 4.12.2015 in the Central University of Kerala, the first respondent. The essential qualification prescribed for the above appointment is as follows:-
"Essential qualification as prescribed by UGC :
i) Good academic record with a Ph.D. Degree in the concerned/ allied/ relevant disciplines.
ii) A Master's Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed).
iii) A minimum of eight years of experience of teaching and /or research in an academic/research position equivalent to that of Assistant Professor in the University/College or Accredited Research Institution/industry excluding the period of Ph.D. research with evidence of published work and a minimum of 5 WP(C)No.40096 of 2018 4 publications as books and/or research/policy papers.
iv) Contribution to educational innovation, design of new curricula and courses, and technology- mediated teaching learning process with evidence of having guided doctoral candidates and research students.
v) A minimum score as stipulated in the Academic performance Indicator (API) based Performance Based Appraisal System (PBAS), set out in this Regulation in Appendix III of UGC Regulations and subsequent amendments.
Essential Qualification - II Professor and Associate professor in Geology : Masters Degree in Geology /Earth Sciences and Phd in concerned/allied/relevant area."
2. The petitioner states that Ext.P5 rank list dated 2.3.2017 was published, wherein the fifth respondent was ranked as the first and the petitioner is shown as first in the waiting list. It is stated that the fifth respondent joined on 13.10.2007, however, he resigned and the University relieved him on 14.2.2018, which was before the expiry of the validity of the Ext.P5 ranked list, namely one year from the date of its publication and therefore the petitioner ought to have been offered the appointment. The same was not done and when the petitioner questioned the action of the University, Ext.P9 reply was sent which stated that the validity of the rank list had expired and therefore his claim could not be entertained. Though the petitioner intimated to the University that the vacancy had occurred during the period of validity of the rank list and therefore he ought to have been appointed, the University vide Ext.P11 dated 30.08.2018 informed WP(C)No.40096 of 2018 5 him that as per clause 7 of the general information provided along with the notification, the University had reserved the right to fill up the post. The petitioner challenges the said stand of the University and also seeks a declaration that the petitioner was entitled to be ranked first as the fifth respondent was not qualified at all and also seeks a consequential order directing the first respondent to appoint him. The petitioner also submits as per clause 12 of the UGC Regulations, 2018, the post ought to have been filled up as soon as possible.
3. The petitioner further attacks the qualification of the fifth respondent and submits that one of the mandatory qualifications required was a minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS) set out in Regulations in Appendix III of the UGC Regulations and subsequent amendments. If the candidate was found lacking in the prescribed minimum qualification or requirements, the application itself ought to have been rejected. As per Ext.P2 UGC Regulations, in category I of Appendix III, the minimum API score required is 75 out of 125. The petitioner had scored 123.9 score out of 125 under Category I as the prescribed minimum score was 75 and he had 50 out of 50 in Category II of Appendix III against the prescribed minimum score of 15. The Screening committee therefore found that the petitioner had fulfilled the requirement. When it came to the fifth respondent, as is seen from Ext.P4, he was not even awarded the minimum required API both under Category 1 and Category II of Appendix III and though the Screening Committee initially wrote "fulfilled" the said writing is seen scored off and instead it was written as "may be called for interview". The petitioner submits that these contentions are not met in the counter affidavit and all that is stated by the University is that the petitioner as well as the fifth respondent had the required WP(C)No.40096 of 2018 6 API to be invited for the interview. This assertion is against Ext.P4 and nothing on record suggests that the fifth respondent had the requisite API score. Even the application of the fifth respondent was not in the prescribed format and the application form obtained under the RTI Act proved the same. Under such circumstances, the petitioner argues that he alone was qualified and ought to have been granted the first rank, and at any rate, in the vacancy that arose when the fifth respondent resigned, he should have been appointed
4. Though the service of notice on the fifth respondent is complete, he has not chosen to appear or file a counter affidavit. When the writ petition was pending, there were two attempts to till up the post. This was brought to the notice of the court by the petitioner. Later, pending the writ petition the sixth respondent was appointed to the post. The petitioner alleges that even the sixth respondent was not qualified as he did not have the mandatory teaching experience of eight years his claim of post-doctoral experience from 1.1.2013 to 21.4.20174 under PURSE of Kerala University as a Technical Officer cannot be reckoned as post-doctoral experience, since he was awarded Ph.D only on 29.6.2013. The petitioner also relies on Ext.P21 file note maintained by the University where the screening committee had put a query to the effect that "the candidate has to produce proof/certificate of the experience he has claimed to show whether it is equivalent to Assistant Professor or its equivalent". The Registrar had also returned to the Vice Chancellor to request the candidate "may be asked to produce a proof of equivalency to Assistant Professor as per his claim". It was overlooking all these the sixth respondent was appointed pending the writ petition. The petitioner therefore challenges the entire actions leading to the appointment of respondents 5 and 6 violating the relevant UGC Regulations. WP(C)No.40096 of 2018 7
5. Respondents, 1 to 3 had filed a counter stating that the University had followed the UGC norms and guidelines approved by the Academic Council. They also contend that they can increase the minimum required score or devise appropriate additional criteria for screening candidates at any stage of recruitment. It is also their contention that the petitioner as well as the fifth respondent had the requisite API score and that Category I and II are basically teaching and related activities and normally all the teachers having minimum service will get the said requirement. It is also stated that the petitioner had not made any request during the validity of the rank list and for that reason, the request of the petitioner was turned down.
6. The sixth respondent had filed a counter stating that the petitioner is ineligible for appointment as Associate Professor as he was already a Professor with effect from 2015 and therefore a serving Professor is not entitled to claim appointment against the post of Associate Professor in Geology. It is also his submission that there was no pleading that he had a Master's Degree with 55% marks or that he has had 8 years of teaching service at Kerala University. The sixth respondent further contends that he had been validly appointed and therefore in the absence of a challenge to his appointment at the relevant time, no reliefs can be granted to the petitioner.
7. Heard Sri. P.K. Ibrahim learned counsel for the petitioner, Sri.K.Ramakumar, the learned senior counsel instructed by Sri. T.Ramprasad Unni, for the University and Sri.Sajith Kumar, learned counsel for the sixth respondent.
WP(C)No.40096 of 20188
8. The contention of the petitioner that the fifth respondent was not qualified at all is a very serious contention, going by the documents produced in this case, Ext.P4, the summary sheet of the fifth respondent that showed that he did not have any minimum required API both under Category I and II of Appendix III. Though the Screening Committee initially tried to say that the conditions were "fulfilled" that comment was scored off and it was written as 'may be called for interview'. It is to be noted that the minimum requirement fixed in API for Category 1 is 75 and in Category II is 50, in both put together the minimum required mark should be 100 and in Category III the consolidated minimum is 300 as stipulated by the Academic Council of the respondent University held on 24.3.2015, which is in tune with the UGC Regulations and clause 4 of the Ordinance 22 of the University. Exts.P3 and P4 summary sheets do not meet these requirements. Under the said circumstances, the contention of the University that the fifth respondent had the requisite minimum score cannot be accepted.
9. It is also to be noticed that the prescribed application form contained Part A, Part B and Part C. In Part B, the applicant makes the claims under different fields with verified scores. In Part C the applicant has to mention the supporting document for the scores claimed in Part B. The details provided in Part C are required to be certified by the HoD/School Chairperson/Principal, to the effect that the information provided is correct as per records available with the University and/or in documents enclosed along with the duly filled API proforma. In the absence of the certification required under Part C, the claims made in Part B cannot be considered. In the instant case, there is nothing to show that the fifth respondent had submitted Part C, accordingly, his application ought to have been WP(C)No.40096 of 2018 9 rejected as defective and incomplete. The contention of the petitioner that therefore he ought to have been ranked first in preference to the first respondent has to be accepted. How the application of the fifth respondent was accepted or pursued despite the above defect is not known.
10. This Court had called for the entire files regarding the selection and a perusal of those records reveals that the application submitted by the fifth respondent is defective/incomplete. Under such circumstances, I hold that the petitioner ought to have been ranked first in the selection process and offered the appointment which was wrongly given to the fifth respondent.
11. The next contention that the petitioner raises is that though the fifth respondent joined service on 13.10.2017, he had resigned and the University relieved him on 14.2.2018, on which day at least the petitioner herein ought to have been offered the appointment. The petitioner asserts that he was unaware of the resignation of the fifth respondent but since the University knew that, at least then the petitioner ought to have been given the appointment. The non- appointment of the petitioner at that point in time is illegal and arbitrary. This has to be seen in the background of the contention of the petitioner that the fifth respondent resigned when the petitioner started questioning his appointment and sought information regarding the same. In the absence of a counter affidavit filed by the fifth respondent denying the allegations raised against him, the said contention must be taken as not traversed.
12. Learned senior counsel for the University Sri.K.Ramakumar however submits that even if the entire contentions of the writ petitioner are accepted, he WP(C)No.40096 of 2018 10 could not have been granted appointment as his first claim to the post on 10.04.2018 came after the expiry of one year from the publication of Ext.P5 rank list. No candidate could have been appointed after the expiry of the rank list. Therefore, his prayers-seeking appointment cannot be granted. The other prayers sought for a declaration that the fifth respondent was not qualified also had become academic after his resignation and leaving the job. It is also his submission that the sixth respondent's appointment was made pending the writ petition as there was no stay against the University from carrying out the selection process. The only issue therefore arising is as to the acceptability of the contention that no appointment was possible after the expiry of the rank list.
13. As noticed above, the specific contention of the writ petitioner is that even the application form of the fifth respondent did not contain the API scores which were mandatory for Category I and II. A perusal of the files also clearly showed that two columns were left unfilled. Going by the stipulations in the application form itself, the petitioner's application which admittedly is incomplete, ought to have been rejected. All the other candidates filled up the relevant form except the fifth respondent. In the application of the fifth respondent, though it was initially written as fulfilled, it was struck off and he was called for an interview. Likewise, the scores assigned to the fifth respondent were also struck off and more marks were added. All these assume significance in the light of the fact that no counter affidavit has been filed by the fifth respondent, to the allegations raised in the writ petition despite service of notice. Under such circumstances, it has to be taken that the fifth respondent has nothing to offer against the allegations more so when the perusal of the files produced before this Court supports the allegations raised by the writ petitioner. Given the above, it has WP(C)No.40096 of 2018 11 to be held that the assigning of first rank to the fifth respondent was clearly wrong and it should have been to the writ petitioner. Not only that the said action on the part of the University in not assigning the first rank to the writ petitioner was wrong, it could have at least offered the appointment when the fifth respondent resigned. The act of resignation of the fifth respondent cannot be known to the writ petitioner and the stand of the University that his request seeking appointment came after the expiry of the rank list cannot therefore be accepted.
14. The selection of the sixth respondent pending the writ petition cannot confer him any right more so in the light of the prayers sought in the writ petition, which included the prayer for quashing Exts.P9, P11, P12 (g) and P12(h) and also for a declaration that the petitioner is entitled to be ranked first and appointed to the post in question and also for a consequential order to direct the first respondent to appoint the petitioner. The rights of the parties are to be gauged on the date of the filing of the writ petition and the fact that the sixth respondent was appointed pending the writ petition cannot stand in the way of the petitioner being granted the relief sought if he is otherwise entitled. It will not be solace for a writ petitioner to be told that though his claim is to be accepted as valid, no reliefs can be granted because the sixth respondent was already appointed or on account of the passage of time. Any action taken pending the writ petition can only be held as subject to the decision in the writ petition.
15. In academic matters, normally this Court does not substitute the decision of the academic bodies or interfere in the selection process as courts accept the decision of the academic bodies if taken in accordance with law. In the instant case, the records clearly showed that the allegation raised against the fifth WP(C)No.40096 of 2018 12 respondent was true and it was a case where the fifth respondent's application itself ought to have been rejected. A serious infirmity was again committed when the petitioner was not offered an appointment when the first respondent resigned and when the writ petitioner was first in the waiting list. In the above background, the contention that the sixth respondent is not qualified is not being probed further as the same took place pending the writ petition, and his selection cannot dissuade this Court from granting reliefs to the writ petitioner.
16. It is trite that it is the concomitant duty of the constitutional courts to take reasonable measures to restitute the injured which is the overarching constitutional purpose. As I have already held that the actions of the University are illegal and arbitrary, the fact that the writ petition was pending for so many years cannot be taken as a reason to give credence to the illegal action, though third-party rights are created. The sixth respondent cannot feign ignorance of the fact that he was appointed pending the writ petition. He was impleaded in the writ petition, and the fact that this Court took time to decide the writ petition cannot be taken as conferring any advantage to the sixth respondent. The writ petitioner was wrongly denied the appointment for no fault of his and a meritorious candidate cannot be made to suffer An act of Court can prejudice no man (Actus Curiae Neminem Gravabit). In the instant case, it has to be noticed that there was a selection process for a vacancy which was indeed filled up when the first rank holder was appointed. He resigned during the pendency of the rank list is also not in dispute. There is no decision taken by the University not to fill up the post after a selection process. Under such circumstances, the University cannot heard to contend that they do not want to fill up the post though the fifth respondent resigned.
WP(C)No.40096 of 201813
17. In the light of the findings noted above, the writ petition is only to be allowed. It is declared that the writ petitioner was entitled to be appointed pursuant to the selection process conducted by the University. Accordingly, there will be a direction to the first respondent to appoint the petitioner as Associate Professor in Geology within two weeks from today. It is made clear that if there is a vacancy after appointing the petitioner, the sixth respondent can also be accommodated.
The Writ petition is allowed as above.
Sd/-MOHAMMED NIAS C.P. JUDGE dlk/17.4.2024 WP(C)No.40096 of 2018 14 APPENDIX OF WP(C) 40096/2018 PETITIONERS EXHIBITS EXHIBIT P1 TRUE COPY OF THE NO.CUK/EST/RECRT/TEACH/2015 EMPLOYMENT NOTIFICATION NO.7/2015 DATED 04.12.2015 ISSUED BY THE 1ST RESPONDENT UNIVERSITY.
EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE UGC
REGULATIONS, 2010, PUBLISHED IN GAZETTE OF
INDIA DATED 18.09.201O NAMELY PAGES
7848,7852, 7882, 7885, 7921,7947 & 7948.
EXHIBIT P3 TRUE COPY OF THE PETITIONER'S SUMMARY SHEET
CONTAINING THE RECOMMENDATION OF THE
SCREENING COMMITTEE.
EXHIBIT P4 TRUE COPY OF THE SUMMARY SHEET OF THE 5TH
RESPONDENT CONTAINING THE RECOMMENDATION OF
THE SCREENING COMMITTEE.
EXHIBIT P5 TRUE COPY OF THE RESULT
CUK/APPT/TEACH/2016/VOL I, OF THE INTERVIEW
PUBLISHED BY THE 1ST RESPONDENT OF
02.03.2017.
EXHIBIT P6 TRUE COPY OF THE RELIEVING ORDER NO.
CUK/ET/PF-154/RJP/2017 DATED 14.02.2018
ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE RTI APPLICATION DATED
30.06.2018 ALONG WITH THE REPLY RECEIVED
THROUGH RTI ONLINE.
EXHIBIT P8 TRUE COPY OF THE E-MAIL DATED 11.04.2018
SENT TO THE 1ST RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED 10.04.2018
SENT BY POST TO THE 1ST RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE LETTER NO.
CUK/APPT/TEACH/2016/VOL I/E 875 DATED
23.05.2018 RECEIVED FROM THE 1ST
RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE COMMUNICATION SENT BY THE
PETITIONER TO THE 1ST RESPONDENT ON
13.06.2018 BY POST AND E-MAIL.
EXHIBIT P11 TRUE COPY OF THE COMMUNICATION NO.
CUK/APPT/TEACH/2016/VOL I/E 2463 DATED
30.08.2018 RECEIVED BY THE PETITIONER.
EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED
07.09.2018 BY POST AND E-MAIL DATED
WP(C)No.40096 of 2018
15
02.10.2018.
EXHIBIT P12(a) TRUE COPY OF THE PRESCRIBED SUMMARY SHEETS
FOR THE POSTS OF ASSOCIATE PROFESSOR
EXHIBIT P12(b) TRUE COPY OF THE MINUTES OF THE SELECTION
COMMITTEE HELD ON 19.01.2017 ALONG WITH THE
SUMMARY SHEET SCRUTINIZED BY THE SELECTION
COMMITTEE OBTAINED UNDER RTI ACT
EXHIBIT P12(c) TRUE COPY OF THE PART C OF THE APPLICATION
OF THE 5TH RESPONDENT ALONG WITH THE
COMMUNICATION OF THE APPELLATE AUTHORITY
DATED 09.11.2020 FORWARDING PART C
EXHIBIT P12(d) TRUE COPY OF THE ORDINANCE 22 FRAMED BY THE
UNIVERSITY
EXHIBIT P13 TRUE COPY OF THE PRESCRIBED SUMMARY SHEETS
FOR THE POSTS OF ASSOCIATE PROFESSOR.
EXHIBIT P14 TRUE COPY OF THE NOTIFICATION DATED
01.12.2016
EXHIBIT P15 TRUE COPY OF THE NOTIFICATION DATED
05.07.2019 NOTIFYING THE POST OF ASSOCIATE
PROFESSOR IN GEOLOGY UNDER UNRESERVED
CATEGORY.
EXHIBIT P16 TRUE COPY OF THE OFFICE MEMORANDUM DATED
13.06.2000 ISSUED BY THE DEPARTMENT OF
PERSONNEL AND TRAINING, GOVERNMENT OF
INDIA.
EXHIBIT P17 TRUE COPY OF THE ORDINANCE 22 FRAMED BY THE
UNIVERSITY.
EXHIBIT P18 TRUE COPY OF THE PRESCRIBED APPLICATION
FORM
EXHIBIT P-19 TRUE COPY OF RTI APPLICATION SUBMITTED
THROUGH ONLINE BY THE PETITIONER
EXHIBIT P20(a) TRUE COPY OF REPLY DATED 23/9/2020 TO THE
RTI
EXHIBIT P20(b) TRUE COPY OF THE DOCUMENT ENCLOSED WITH
EXT.P20(a)
EXHIBIT-P21 TRUE COPY OF THE FILE NOTE OBTAINED UNDER
RTI ACT
EXHIBIT-P22 TRUE COPY OF THE FRONT PAGE AND PAGES 88
AND 89 OF THE ANNUAL REPORT OF UNIVERSITY
OF KERALA FOR THE YEAR 2013
RESPONDENTS EXHIBITS
EXHIBIT R1(A) A TRUE COPY OF THE EXECUTIVE COUNCIL
WP(C)No.40096 of 2018
16
PROCEEDINGS DATED 01.07.2019.
EXHIBIT R1(B) TRUE COPY OF THE EMPLOYMENT NOTIFICATION
NO. CUK/EST/RECRT/TEACH/2015 DATED
25/10/2021 ISSUED BY THE CENTRAL UNIVERSITY
EXHIBIT R1(C) TRUE COPY OF THE RANKED LIST DATED
06/08/2022 ISSUED BY THE CENTRAL UNIVERSITY
EXHIBIT R6(A) THE COPY OF THE BIODATA FOR THE PETITIONER
AVAILABLE IN THE WEBSITE OF THE CENTRAL
UNIVERSITY OF KARNATAKA
EXHIBIT R6(B) A TRUE COPY OF THE ORDER NO. CUK/GOV/F-
119/2017-2018/433 DATED 24/8/2017 ISSUED BY
THE REGISTRAR OF THE KARNATAKA CENTRAL
UNIVERSITY
EXHIBIT R6(C) A TRUE COPY OF THE PHD THESIS SUBMISSION
CERTIFICATE DATED 14.12.2012 ISSUED BY THE
UNIVERSITY OF KERALA