Dr. T.Neeraja vs The Selection Committee For The ...
2021 Latest Caselaw 38 AP

            HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO

                        W.P.No.26121 of 2018

ORDER:

The petitioner, who was working in Acharya N.G. Ranga

Agricultural University (ANGRAU), at the time of bifurcation of the State

opted for Andhra Pradesh and joined as professor in the college of Home

Science, Guntur on 13.08.2015. She was temporarily appointed as in-

charge Dean of Home Science on 09.11.2015 and worked in that capacity

up to 24.03.2018. While she was working as the In-charge Dean, the 3rd

respondent-University had invited applications for various posts including

the post of Dean on Home Science, by a notification dated 23.09.2016. As

the initial process of selection was not completed within the stipulated

time a re-notification of the earlier notification was done on 15.10.2017.

Thereafter, interviews for all these posts including the post of Dean of

Home Science, was held for five days from 19.03.2018 to 23.03.2018. The

interview for the post of Dean was conducted for four applicants including

the petitioner and respondent No.4 herein. After the interviews had been

conducted, the Board of Management passed a resolution No.98, dated

24.03.2018 approving the appointment of the 4th respondent as Dean of

Home Science. On the basis of this resolution, proceeding

No.1541/OP/A1/2018, dated 24.03.2018 was issued by the Vice-

Chancellor appointing the 4th respondent as Dean of Home Science.

2. The petitioner being aggrieved by these proceedings has

approached this Court by way of the present writ petition.

3. It is the case of the petitioner that even though she is better

qualified for the post of Dean of Home Science, the respondents caused

injustice to the petitioner by appointing the 4th respondent as Dean of 2 RRR,J W.P.No.26121 of 2018

Home Science. The petitioner by application dated 05.04.2018 requested

for information relating to the evaluation of the candidates done in the

selection process for the post of Dean of Home Science. The information

sought by the petitioner was furnished to the petitioner under cover of

letter dated 24.05.2018. The details of the marks awarded for the

candidates who appeared for the interview were not initially furnished

under the letter dated 24.05.2018. They were furnished later under letter

dated 12.06.2018. The petitioner also submits that the details of the

members who evaluated the applications and other details sought by her

have not been given to the petitioner.

4. The scores awarded to the petitioner and the 4th respondent,

are set out in the following manner in the affidavit.

                                                              Marks awarded to
Sl.No.            Description          Total marks                    4th respondent
                                       allotted in the Petitioner
                                       score card

2        Service experience in the            13             9.5             7.5
         relevant field

         and their Socio economic
         impact



         Leadership qualities
                  Sub-Total                   75            49.5            46.5

                     Total                   100            63.5            64.5

5. On the basis of this score card, the petitioner has

complained against the marks awarded in Sl.No.3 relating to "significant

achievements and their socio economic impact" and in relation to the

marks awarded for the interview.

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                                                           W.P.No.26121 of 2018

6. It is the case of the petitioner that the score card under

Sl.No.3 is further split into various categories and marks are required to

be awarded under each sub-category separately. The University guidelines

provided for allotment of marks under the following heads:

S.No.3 Significant Achievements & their Socio-Economic impact Total Marks (Five most Significant Achievements in the relevant field in marks under 250 words supported by documents) sub heads Research & Teaching

(i) Development of technologies of applied value 20

a. Technologies developed, validated and popularized like food, Nutrition & livelihood security;

Innovative programmes (child Health care, etc) developed; formulation of standards for food Quality/safety; Economic/knowledge empowerment programmes developed for rural/semi urban women folk and monitored (2 Marks/technology) - to a maximum of (10) b. Development/major revision of curriculum of UG and PG and 4 year degree programmes;

Courses taught (>2 credit courses for More than 5 years); Involvement in experimental learning;

Summer-winter schools organized;

Establishment of teaching Facilities;

Development of innovative teaching methods/courses (2 Marks/course)-to a maximum of (10)

(ii) Other Research and Academic Accomplishments: 15

a) Special Trainers' Training, women farmers' training and Development of commodity oriented SHGs (1 mark/course)- to a Maximum of (4)

b) Number of projects awarded through competitive research grant (grants exceeding Rs.10 lakhs/projects of 3-5 years (1 Mark/project for PI and ½ mark for Co-PI)- to a maximum of (4)

c) Post Graduate students supervised (Ph.D: major advisor 1 mark/student and co-chairman ½ Mark/student, M.Sc: major advisor ½ mark/student -

        to a maximum of (4)
d)      Served as Chairman/Member of

Research/Academic/Extension Councils/Review Committees / Task Forces/Govt. Commissioned Missions; Consultant at national, international and state levels (1/2 Mark/committee) - to a maximum of (3)

7. However, no such exercise was conducted and lump sum

marks were awarded under Sl.No.3 of the score card. The petitioner 4 RRR,J W.P.No.26121 of 2018

submits that this lump sum award of marks under Sl.No.3 is not in

accordance with the procedure prescribed and as such the selection

process is vitiated. The petitioner also submits that the petitioner could

not have got less marks than the 4th respondent in Sl.No.3 as her

achievements and their socio economic impact is much more than the 4th

respondent. The Petitioner contends that the award of lower marks to the

petitioner appears to have been done to favour the 4th respondent. The

petitioner submits that a third party expert, who evaluated her application

and the application of the 4th respondent, expressed the opinion that she

was denied the marks which she was supposed to get and the marks

awarded to the 4th respondent were magnified.

8. The 3rd respondent filed its counter affidavit. In the said

counter affidavit, the 3rd respondent took the stand that the process of

selection was done impartially and scrupulously following the selection

procedure laid down in the statute of the university. The contention of the

petitioner that sub-division of marks in each section of Sl.No.3 should

have been done separately and should have been furnished to the

petitioner is denied on the ground that the sub-division was done only for

the purposes of assisting the interview members to evaluate impartially

and that the sub-division was not for the purposes of awarding marks

under each sub-category. The 3rd respondent took the stand that the

reason why the petitioner scored low in Sl.No.3 is that the petitioner had

resorted to plagiarism and in view of the said plagiarism the petitioner

was awarded marks lower than the 4th respondent. The details of the

plagiarism as given in the counter affidavit, are as follows:

i) Designing and fabrication of briquetting machine suitable for the manufacturing of biomass and charcoal briquettes which is highly impossible, since she is neither qualified nor experienced in that field.

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                                                            W.P.No.26121 of 2018




        ii)    She has also claimed that she has developed ergonomic

technologies for manual material handling which is copied from the article Ergonomic guideline for manual material handling, published by California Department of Industrial Relations USA, 2007.

iii) The petitioners' claim of technology development of Ergonomic Interventions for safety in construction work" is nothing but a copy from an article published by Ohio Bureau of workers compensation titled ergonomic best practices for construction industry.

iv) Credit in developing adulteration testing kit is false because she neither developed any new method of testing nor identified any reagent.

v) She has falsely claimed that she has developed measuring instruments.

9. As far as the marks awarded to the petitioner in the

interview are concerned, the 3rd respondent submits that the interview

board had done their job without any favours being done to the 4th

respondent and in any event none of the members had any reason to

have any bias against the petitioner herein.

10. The 4th respondent has also filed a counter affidavit setting

out her qualifications. She also raised questions of plagiarism against the

petitioner. The petitioner filed a reply affidavit countering the allegations

made by the 3rd and 4th respondents.

11. Heard Sri J. Sudheer, learned counsel for the petitioner, Sri

N. Sriram Murthy, learned Standing Counsel for respondents 1 to 3 and Sri

M. Surender Rao, learned Senior Counsel for the 4th respondent.

12. Sri J. Sudheer, learned counsel for the petitioner reiterated

the pleadings in the writ petition and the reply affidavit filed by the

petitioner. He submitted that the award of marks under Sl.No.3 and for

the interview, in the table reproduced above, were deliberately reduced

for the petitioner inasmuch as there could be no other explanation as to

why the petitioner was given marks lesser than the 4th respondent, even

though the petitioner had more achievements to her name and had done 6 RRR,J W.P.No.26121 of 2018

better than the 4th respondent in the interview. Sri J. Sudheer primarily

contended that even though the Selection Committee were to award

separate marks under various sub-headings given for Sl.No.3, lump sum

marks were given without awarding marks under different sub-headings.

He submits that this non-division of marks between various sub-headings

is fatal to the entire proceeding and as such the entire proceeding

requires to be set aside.

13. Sri M. Surender Rao, learned Senior Counsel appearing for

the 4th respondent would submit that the contention of Sri J. Sudheer

regarding non-award of marks under each sub-heading is not correct. Sri

M. Surender Rao submits that the Score Card Guidelines was not attached

to the notification calling for applications. This score card guidelines with

sub division came out only when the 3rd Respondent supplied the same to

the Petitioner in compliance of a request under the Right to Information

Act. He submits that these guidelines were given only for the purpose of

assisting the members of the selection board and there is no statutory

basis for these guidelines. He submits that in those circumstances, the

award of lumpsum marks cannot be challenged as arbitrary or that the

evaluation had to be done only by awarding marks under each category.

14. The learned senior Counsel further submits that in the

guidelines score card sub-division of marks was provided for Sl.No.2,

Sl.No.3, Sl.No.4 and Sl.No.5. The Selection Committee had awarded lump

sum marks again for Sl.No.1 to 6. However, Sri J. Sudheer had no

objection to award of lump sum marks under Sl.No.2, 4 & 5 as the

petitioner had got higher marks than the 4th respondent or marks accrued

to the 4th respondent. It is only because the petitioner got lesser marks

than the 4th respondent in Sl.No.3 that the petitioner is objecting to award 7 RRR,J W.P.No.26121 of 2018

of lump sum marks under Sl.No.3. Sri M. Surender Rao also submits that

having given up the challenge against award of lump sum marks in

Sl.Nos.2, 4 & 5, the petitioner cannot maintain a challenge against the

award of lump sum marks under Sl.No.3.

15. Sri M. Surender Rao further contended that award of lump

sum marks without awarding marks on sub-divided basis is valid and had

been upheld by various judgments reported in State of Karnataka and

anr., v. M. Farida & Ors.1; G.L. Reddy v. University of Hyderabad

and Ors.2; Osmania University rep. By its Registrar, Hyderabad v.

Abdul Rayees Khan and Ors.3; and A. Peeriakaruppan and Ors. v.

State of Tamil Nadu and Ors.4.

16. Sri J. Sudheer, in reply to the aforesaid contentions,

submitted that when the 3rd respondent-university sought to penalise the

petitioner, by way of a memo dated 14.03.2019, on the ground of

plagiarism by her, the petitioner had approached this Court by way of

W.P.No.4531 of 2019, which was allowed by order dated 23.12.2019

setting aside the memo. He submits that in view of the above decision,

the respondents cannot rely on the ground of plagiarism to deny the

petitioner the rightful marks due to her in Sl.No.3 of the Score Card

Guidelines.

Consideration of the Court:

17. Sri J. Sudheer had contended that the petitioner could not

have been awarded marks lower than the 4th respondent in the interview

as she had done better. The Selection Board had evaluated the

AIR 1976 SC 2482

2002 Supp (2) ALD 703

(1997) 3 SCC 124;

AIR 1971 SC 2303 8 RRR,J W.P.No.26121 of 2018

performance of both the Petitioner and the 4th Respondent and had

awarded higher marks to the 4th Respondent. This Court, while dealing

with such an issue under Article 226 of the Constitution cannot second

guess the selection board or impose it's perception of who had performed

better. In any event, no material has been placed before this Court in

support of the submission of the petitioner that she had performed better.

This contention would have to be negatived.

18. Sri J. Sudheer contended that the award of lower marks on

the ground of plagiarism is not justified, as this Court by its order dated

23.12.2019 in W.P. No. 4531 of 2019 had absolved the Petitioner of any

liability on that account. The facts in W.P. No. 4531 of 2019 were that the

3rd Respondent-university sought to penalise the Petitioner, on the ground

of plagiarism, under the University Grants Commission (Promotion of

Academic Integrity and Prevention of Plagiarism in Higher Educational

Institutions) Regulations, 2018 adopted by the 3rd Respondent University

on 15.12.2018, with effect from the academic year 2019-20. The said Writ

Petition came to be allowed on the ground that the plagiarism took place

in 2015-16 while the regulations came into force only in 2019-20 and as

such cannot be applied to events of 2015-16. This finding does not in any

way absolve the Petitioner from the charge of plagiarism. This contention

would have to be rejected.

19. On the question of award of marks under each sub division,

the judgements cited by Sri M. Surender Rao would have to be

considered.

20. In the Case of A. Peeriakaruppan and Ors. v. State of

Tamil Nadu and Ors. (4 supra) the Hon'ble Supreme Court considered

the issue of award of lumpsum marks in the interview conducted for 9 RRR,J W.P.No.26121 of 2018

medical admissions and had held that the award of lumpsum marks

without awarding marks on itemised basis would be illegal.

21. In the case of State of Karnataka and anr., v. M. Farida

& Ors. (1 supra) a constitution Bench of the Hon'ble Supreme Court,

considering the ratio of A. Peeriakaruppan, had held as follows:

"Whether a block mark should be given after the interview on a consideration of the qualities evinced by a candidate, or marks are to be allotted separately under each head depends, in our opinion, upon the rule regulating the examination".

However, the Constitution bench went on to hold that an overall

view of the capacities of the candidate should be taken into account and

the award of marks under each head may not be any better than the

award of lumpsum marks.

22. The judgement in Osmania University rep. By its

Registrar, Hyderabad v. Abdul Rayees Khan and Ors. (3 supra)

does not consider the question of sub division of marks vis a vis award of

lumpsum marks, and may not be relevant to the present case.

23. In the case of G.L. Reddy v. University of Hyderabad

and Ors. (2 supra) the erstwhile High Court of Andhra Pradesh while

considering the question of non awarding of separate marks in relation to

different heads, had negatived the challenge on that score on the ground

that neither the statutes of the university or the guidelines prescribed by

the university require allocation of marks under different heads at the

interview.

24. A review of these judgements would go to show that where

the procedure requires award of separate marks under each head, award

of lumpsum marks would be contrary to procedure and the process would 10 RRR,J W.P.No.26121 of 2018

have to be set aside. The contention of Sri M. Surender Rao is that the

sub division of marks is contained in the internal guidelines given to the

selection committee and the said guidelines cannot be elevated to the

status of rules which are binding. I am afraid that I cannot accept this

contention. The Selection board were given guidelines allotting marks

under each sub heading. These guidelines may not have been shared with

the candidates, nevertheless the selection board ought to have followed

the guidelines which required the selection board to allot marks under

different sub headings to ensure that each aspect of the candidate is

considered and evaluated. The fact that marks have been awarded

lumpsum is clearly an irregularity.

25. However, the question remains whether setting aside the

appointment of the 4th Respondent would be the appropriate remedy. It is

only the Petitioner who has challenged the selection of the 4th

Respondent, while the other two unsuccessful candidates have not chosen

to challenge the selection of the 4th Respondent. Even if the matter is

remanded to the selection committee to award marks according to the

sub heads, it is clear that the selection committee, on account of the

charge of plagiarism against the Petitioner are not going to award any

marks higher than the 4th respondent and as such the exercise would be

an exercise in futility.

26. In these circumstances, the Writ Petition is dismissed. There

shall be no order as to costs. As a sequel, pending miscellaneous

petitions, if any, shall stand closed.

_________________________ R. RAGHUNANDAN RAO, J.

7th January, 2021 Js.

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                                      W.P.No.26121 of 2018




      HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO




               W.P.No.26121 of 2018




                 7th January, 2021
Js.