Kerala High Court
Dr. Reshmi R.R vs State Of Kerala on 25 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
WA NO. 236 OF 2021
AGAINST THE JUDGMENT DTD 18/12/2020 IN WP(C)15666/2020 OF HIGH COURT
OF KERALA
APPELLANTS/RESPONDENTS 5 TO 8 AND 10 TO 13 AND 15 & 16:
1 MANAGER,
MALANKARA SYRIAN CATHOLIC COLLEGES
(MAJOR ARCHDIOCESE OF TRIVANDRUM)
ST.MARY'S CATHEDRAL CAMPUS, PATTOM,
THIRUVANANTHAPURAM-695 004.
2 PRINCIPAL,
ST.JOHN'S COLLEGE, ANCHAL, KOLLAM-691 306.
3 CHAIRMAN,
SELECTION COMMITTEE OR SELECTION TO
THE POST OF ASSISTANT PROFESSOR IN
ENVIRONMENTAL SCIENCE, ST. JOHN'S COLLEGE,
ANCHAL, KOLLAM-691 306.
4 DR. BRILLIANT RAJAN,
HoD AND ASSISTANT PROFESSOR,
DEPARTMENT OF ENVIRONMENTAL SCIENCE,
ST. JOHN'S COLLEGE, ANCHAL, KOLLAM-691 306.
5 REV.DR. M.G.MATHEW COR-EPISCOPE,
CHAIRMAN & MANAGEMENT NOMINEE,
RETIRED PRINCIPAL, MAR IVANIOS COLLEGE,
TRIVANDRUM, AND VICAR GENERAL,
MAJOR ARCHBISHOP'S HOUSE, PATTOM,
TRIVANDRUM, AND MANAGER, M.S.C COLLEGE, PATTOM,
THIRUVANANTHAPURAM-695 004.
6 DR. SABU JOSEPH,
SUBJECT EXPERT (MANAGEMENT NOMINEE),
PROFESSOR AND HEAD OF THE DEPARTMENT,
DEPARTMENT OF ENVIRONMENTAL SCIENCES,
UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS, PALAYAM,
THIRUVANANTHAPURAM-695 034.
2
Writ Appeal Nos.236, 271 and 491 of 2021
7 DR. SHIVANANDAN ACHARI V,
SUBJECT EXPERT, DIRECTOR AND
ASSOCIATE PROFESSOR OF ENVIRONMENTAL
MODELING AND ENVIRONMENTAL MANAGEMENT,
SCHOOL OF ENVIRONMENTAL STUDIES,
CUSAT, KOCHI
8 DR. SHIJO JOSEPH,
SUBJECT EXPERT, FORMER SENIOR SCIENTIST,
KFRI, PRESENTLY AS ASSISTANT PROFESSOR,
REMOTE SENSING AND GIS DEPARTMENT,
KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES,
PUDUVEYP, KOCHI.
9 REV. FR. JOHNSON G,
PRINCIPAL NOMINEE, PRINCIPAL,
ST. JOHNS COLLEGE, ANCHAL.
10 SELECTION COMMITTEE FOR THE
SECTION OF ASSISTANT PROFESSOR OF
ENVIRONMENTAL SCIENCE UNDER THE COLLEGES,
MALANKARA SYRIAN CATHOLIC COLLEGES MANAGEMENT,
PATTOM, TRIVANDRUM, REPRESENTED
BY ITS CHAIRMAN, THE MALANKARA SYRIAN CATHOLIC
COLLEGES (MAJOR ARCHDIOCESE OF TRIVANDRUM),
SAMANNUYA PASTORAL CENTRE,
ST. MARY'S CATHEDRAL CAMPUS, PATTOM,
THIRUVANANTHAPURAM - 04.
BY ADVS.SANTHOSH MATHEW
SRI.ARUN THOMAS
SRI.JENNIS STEPHEN
SRI.VIJAY V. PAUL
SMT.KARTHIKA MARIA
SRI.ANIL SEBASTIAN PULICKEL
SMT.DIVYA SARA GEORGE
SMT.JAISY ELZA JOE
SHRI.ABI BENNY AREECKAL
SMT.LEAH RACHEL NINAN
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4 & 9 & 14:
1 DR.RESHMI P.R.,
AGED 32 YEARS
W/O.NAVEEN SANKAR, KAIPPALLIL, THOTTUMUGHAM P.O.
SOUTH MYNAGAPALLI, KOLLAM-699 519.
2 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
3
Writ Appeal Nos.236, 271 and 491 of 2021
DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAAM-695 001.
3 DIRECTOR OF COLLEGIATE EDUCATION,
DIRECTORATE OF COLLEGIATE EDUCATION,
6TH FLOOR, VIKAS BHAVAN,
THIRUVANANTHAPURAM-695 033.
4 UNIVERSITY OF KERALA,
REPRESENTED BY ITS VICE CHANCELLOR,
UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS,PALAYAM,
THIRUVANANTHAPURAM-695 034.
5 REGISTRAR,
UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS,PALAYAM,
THIRUVANANTHAPURAM-695 034.
6 DR.T.ALEXANDER,
ASSISTANT PROFESSOR IN
ENVIRONMENTAL SCIENCE,
(UNAPPROVED), ST.JOHN'S COLLEGE,
ANCHAL,KOLLAM-691 306.
7 S.D.FEROLD XAVIER,
(AGE AND NAME OF FATHER NOT KNOWN
TO THE APPELLANT),
GOVERNMENT NOMINEE,ADDITIONAL
SECRETARY TO GOVERNMENT,
FINANCE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
BY ADVS.SRI.KALEESWARAM RAJ(B/O)
SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
SRI.A.J.VARGHESE, SR.GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
25.08.2022, ALONG WITH WA.271/2021 AND 491/2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
4
Writ Appeal Nos.236, 271 and 491 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
WA NO. 271 OF 2021
AGAINST THE JUDGMENT DTD 18/12/2020 IN WP(C)15666/2020 OF
HIGH COURT OF KERALA
APPELLANT/PETITIONER:
DR. RESHMI R.R.
AGED 32 YEARS
W/O. NAVEEN SANKAR, KAIPPALLIL,
THOTTUMUGHAM P.O., SOUTH MYNAGAPALLI,
KOLLAM - 690 519.
BY ADVS.KALEESWARAM RAJ
SRI.VARUN C.VIJAY
KUM.A.ARUNA
SMT.MAITREYI SACHIDANANDA HEGDE
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF HIGHER EDUCATION,
SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 DIRECTOR OF COLLEGIATE EDUCATION
DIRECTORATE OF COLLEGIATE EDUCATION,
6TH FLOOR, VIKAS BHAVAN,
THIRUVANANTHAPURAM-695 033.
3 UNIVERSITY OF KERALA
REPRESENTED BY ITS VICE CHANCELLOR,
UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS, PALAYAM,
THIRUVANANTHAPRUAM-695 034.
5
Writ Appeal Nos.236, 271 and 491 of 2021
4 REGISTRAR
UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS, PALAYAM,
THIRUVANANTHAPRUAM-695 034.
5 MANAGER
MALANKARA SYRIAN CATHOLIC COLLEGES,
(MAJOR ARCHDIOCESE OF TRIVANDRUM)
ST.MARYS CATHEDRAL CAMPUS, PATTOM,
THIRUVANANTHAPURAM-695 004.
6 PRINCIPAL
ST.JOHNS COLLEGE, ANCHAL,
KOLLAM-691 306.
7 CHAIRMAN
SELECTION COMMITTEE OR SELECTION TO
THE POST OF ASSISTANT PROFESSOR IN
ENVIRONMENTAL SCIENCE, ST.JOHNS COLLEGE,
ANCHAL, KOLLAM-691 306.
8 DR.BRILLIANT RAJAN
HoD AND ASSISTANT PROFESSOR,
DEPARTMENT OF ENVIRONMENTAL SCIENCE,
ST.JOHNS COLLEGE, ANCHAL, KOLLAM-691 306.
9 DR. T. ALEXANDER
ASSISTANT PROFESSOR IN ENVIRONMENTAL
SCIENCE(UNAPPROVED),
ST.JOHNS COLLEGE, ANCHAL, KOLLAM-691 306.
10 REV. DR.M.G.MATHEW COR-EPISCOPE
(AGE AND NAME OF FATHER NOT KNOWN TO THE
PETITIONER), CHAIRMAN AND MANAGEMENT NOMINEE,
RETIRED PRINCIPAL,
MAR IVANIOS COLLEGE, TRIVANDRUM)
AND VICAR GENERAL, MAJOR ARCHBISHOP'S HOUSE,
PATTOM, TRIVANDRUM AND MANAGER,
M.S.C. COLLEGE, PATTOM,
THIRUVANANTHAPURAM-695 004.
11 DR.SABU JOSEPH
(AGE AND NAME OF FATHER NOT KNOWN TO
THE PETITIONER) SUBJECT EXPERT
(MANAGEMENT NOMINEE) PROFESSOR &
HEAD OF THE DEPARTMENT, DEPARTMENT OF ENVIRONMENTAL
SCIENCES, UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS, PALAYAM,
THIRUVANANTHAPURAM-695 034.
12 DR.SHIVANANDAN ACHARI V.
6
Writ Appeal Nos.236, 271 and 491 of 2021
(AGE AND NAME OF FATHER NOT KNOWN TO THE
PETITIONER) SUBJECT EXPERT, DIRECTOR AND
ASSOCIATE PROFESSOR OF ENVIRONMENTAL CHEMISTRY
ENVIRONMENTAL MODELING & ENVIRONMENTAL MANAGEMENT,
SCHOOL OF ENVIRONMENTAL STUDIES,
CUSAT, KOCHI.
13 DR.SHIJO JOSEPH
(AGE AND NAME OF FATHER NOT KNOWN TO THE
PETITIONER) SUBJECT EXPERT, FORMER SENIOR
SCIENTIST, KFRI, PRESENTLY AS ASSISTANT PROFESSOR,
REMOTE SENSING AND GIS DEPARTMENT,
KERALA UNIVERSITY OF FISHERIES AND OCEAN STUDIES,
PUDUVEYP, KOCHI.
14 SRI.S.D.FEROLD XAVIER
(AGE AND NAME OF FATHER NOT KNOWN TO THE
PETITIONER), GOVERNMENT NOMINEE,
ADDITIONAL SECRETARY TO GOVERNMENT,
FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
15 REV.FR.JOHNSON G.
(AGE AND NAME OF FATHER NOT KNOWN TO THE
PETITIONER), PRINCIPAL NOMINEE,
PRINCIPAL, ST.JOHN'S COLLEGE, ANCHAL.
16 SELECTION COMMITTEE FOR THE SELECTION OF ASSISTANT
PROFESSOR OF ENVIRONMENTAL SCIENCE
UNDER THE COLLEGES,
MALANKARA SYRIAN CATHOLIC COLLEGES MANAGEMENT,
PATTOM, TRIVANDRUM,
REPRESENTED BY ITS CHAIRMAN,
THE MALANKARA SYRIAN CATHOLIC COLLEGES,
(MAJOR ARCHDIOCESE OF TRIVANDRUM)
SAMANNUAYA PASTORAL CENTRE,
ST.MARY'S CATHEDRAL CAMPUS, PATTOM,
THIRUVANANTHAPURAM - 04.
BY ADVS.SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF
KERALA
SRI.SANTHOSH MATHEW, R5 TO R8, R11-R13, R15, R16
SRI.SHAFIK M.A., R9
SRI.A.J.VARGHESE, SR.GOVERNMENT PLEADER, R1, R2 AND
R14
7
Writ Appeal Nos.236, 271 and 491 of 2021
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
25.08.2022, ALONG WITH WA.236/2021 AND 491/2021, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
8
Writ Appeal Nos.236, 271 and 491 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
WA NO. 491 OF 2021
AGAINST THE JUDGMENT DTD 18/12/2020 IN WP(C)15666/2020 OF
HIGH COURT OF KERALA
APPELLANT/9TH RESPONDENT:
DR. T ALEXANDER
AGED 40 YEARS
S/O.THOMAS K.,
WORKING AS ASSISTANT PROFESSOR IN
ENVIRONMENTAL SCIENCE IN
ST.JOHN'S COLLEGE,
ANCHAL, KOLLAM-691 306.
BY ADVS.SHAFIK M.A.
SRI.M.ALFRED LIONEL WINSTON
SHRI.RAMAKRISHNAN D.
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 8 AND 10 TO 16:
1 DR.RESHMI R.R
AGED 32 YEARS,W/O.NAVEEN SANKAR,
KAIPPALLIL,THOTTUMUGHAM P.O.,
SOUTH MYNAGAPALLI,
KOLLAM-699 519.
2 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF HIGHER EDUCATION,
SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 DIRECTOR OF COLLEGIATE EDUCATION,
DIRECTORATE OF COLLEGIATE EDUCATION,
6TH FLOOR, VIKAS BHAVAN,
9
Writ Appeal Nos.236, 271 and 491 of 2021
THIRUVANANTHAPURAM-695 033.
4 UNIVERISTY OF KERALA.
REPRESENTED BY ITS VICE CHANCELLOR,
UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS,
PALAYAM,THIRUVANANTHAPURAM-695 034.
5 REGISTRAR,
UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS,
PALAYAM,THIRUVANANTHAPURAM-695 034.
6 MANAGER,MALANKARA SYRIAN CATHOLIC COLLEGES,
(MAJOR ARCHDIOCESE OF TRIVANDRUM),
ST.MARY'S CATHEDRAL
CAMPUS,PATTOM,
THIRUVANANTHAPURAM-695 004.
7 PRINCIPAL.
ST.JOHN'S COLLEGE,
ANCHAL,KOLLAM-691 306.
8 CHAIRMAN,
SELECTION COMMITTEE FOR SELECTION
TO THE POST OF ASSISTANT PROFESSOR
IN ENVIRONMENTAL SCIENCE,
ST.JOHN'S COLLEGE,
ANCHAL,KOLLAM-691 306.
9 DR.BRILLIANT RAJAN,
HoD AND ASSISTANT PROFESSOR,
DEPARTMENT OF ENVIRONMENTAL SCIENCE,
ST.JOHN'S COLLEGE,
ANCHAL,KOLLAM-691 306.
10 REV.DR.M.G.MATHEW COR-EPISCOPE,
CHAIRMAN AND MANAGEMENT NOMINEE,
RETIRED PRINCIPAL,MAR IVANIOS COLLEGE,
TRIVANDRUM AND VICAR GENERAL,
MAJOR ARCHBISHOP'S HOUSE,
PATTOM,
TRIVANDRUM AND MANAGER,
M.S.C.COLLEGE,
PATTOM,
THIRUVANANTHAPURAM-695 004.
11 DR.SABU JOSEPH,
SUBJECT EXPERT(MANAGEMENT NOMINEE),
PROFESSOR AND HEAD OF THE DEPARTMENT,
DEPARTMENT OF ENVIRONMENTAL SCIENCES,
10
Writ Appeal Nos.236, 271 and 491 of 2021
UNIVERSITY OF KERALA,
SENATE HOUSE CAMPUS,
PALAYAM,THIRUVANANTHAPURAM-695 034.
12 DR.SHIVANANDAN ACCHARI V.,
SUBJECT EXPERT,DIRECTOR AND ASSOCIATE
PROFESSOR OF ENVIRONMENTAL CHEMISTRY,
ENVIROMENTAL MODELING AND
ENVIRONMENTAL MANAGEMENT,
SCHOOL OF ENVIRONMENTAL STUDIES,
CUSAT,KOCHI.
13 DR.SHIJO JOSEPH,
SUBJECT EXPERT,FORMER SENIOR SCIENTIST,
KFRI, PRESENTLY AS ASSISTANT PROFESSOR,
REMOTE SENSING AND GIS DEPARTMENT.
KERALA UNIVERSITY OF FISHERIES AND
OCEAN STUDEIS,
PUDUVVYPU,KOCHI.
14 SR.S.D.FEROLD XAVIER,
GOVERNMENT NOMINEE,
ADDITIONAL SECRETARY TO GOVERNMENT FINANCE
DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
15 REV.FR.JOHNSON G.,
PRINCIPAL NOMINEE,PRINCIPAL,
ST.JOHN'S COLLEGE,ANCHAL.
16 SELECTION COMMITTEE FOR THE
SELECTION OF ASSISTANT PROFESSOR
OF ENVIRONMENTAL SCIENCE UNDER THE COLLEGES,
MALANKARA SYRIAN CATHOLIC COLLEGES
MANAGEMENT, PATTOM,TRIVANDRUM,
REPRESENTED BY ITS CHAIRMAN,
THE MALANKARA SYRIAN CATHOLIC
COLLEGES(MAJOR ARCHDIOCESE OF TRIVANDRUM),
SAMANNUAYA PASTORAL CENTRE,
ST.MARY'S CATHEDRAL CAMPUS,PATTOM,
THIRUVANANTHAPURAM-04.
BY ADVS.SRI.KALEESWARAM RAJ (B/O)
SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
SRI.A.J.VARGHESE, SR.GOVERNMENT PLEADER, R2, R3 &
R4
SRI.SANTHOSH MATHEW, R6 TO R13, R15, R16
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
11
Writ Appeal Nos.236, 271 and 491 of 2021
25.08.2022, ALONG WITH WA.236/2021 AND WA.271/2021, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
12
Writ Appeal Nos.236, 271 and 491 of 2021
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
--------------------------------------------------
Writ Appeal Nos.236, 271 and 491 of 2021
----------------------------------------------------------
Dated this the 25th day of August, 2022
JUDGMENT
C.S.Sudha, J.
These writ appeals are against the judgment dated 18/12/2020 in W.P.
(C)No.15666/2020. W.A.No.271/2021 has been filed by the petitioner;
W.A.No.236/2021 by respondents 5 to 8, additional respondents 10 to 13, 15
and 16 and W.A.No.491/2021 by the 9th respondent in the writ petition. The
parties and the documents will be referred to as described in the writ petition.
2. The writ petition has been filed by the unsuccessful candidate to
the post of Assistant Professor, St.Johns College, Anchal, Kollam. The 9 th
respondent is the successful candidate. Respondents 5 and 6 are the Manager
and the Principal respectively of the aforesaid college. The 7 th respondent is
the Chairman of the Selection Committee and the additional 8 th respondent
and additional respondents 10 to 15 are the members of the Selection
Committee. According to the petitioner, the Selection Committee has not
awarded the actual marks due to her. On the other hand, she was intentionally
awarded quite low marks with the deliberate intention to achieve their object
Writ Appeal Nos.236, 271 and 491 of 2021
of appointing the 9th respondent. The selection process was vitiated by bias
and favoritism. Exts.P6 and P7 documents evidence the close relation of the
9th respondent with a member of the Selection Committee, namely, the 8 th
respondent. Aggrieved by the denial of employment, the petitioner had
preferred Ext.P5 representation to the Registrar, University of Kerala, i.e., the
4th respondent. As the selection process is vitiated by bias and favoritism, the
writ petition seeking a declaration that the selection and appointment of the 9 th
respondent as Assistant Professor, Environmental Science pursuant to the
notification issued on 06/07/2019, is unconstitutional, illegal and non-est in
the eye of law. Hence for quashing his selection and appointment and for
directing the respondents to award fair marks to the petitioner in the interview
and also to appoint the petitioner to the post of Assistant Professor,
Environmental Science in the college of respondents 5 and 6.
3. Respondents 5 to 8, additional respondents 10 to 13, additional
respondents 15 and 16 as well as the 9 th respondent have filed counter
affidavits denying the allegation of bias and favoritism, the details of which
will be referred to as and when the arguments and counter arguments of either
side are considered.
4. The learned Single Judge on the basis of Exts.P7 to P9, found the
Writ Appeal Nos.236, 271 and 491 of 2021
allegation of the petitioner to be justified and held that the selection of the 9 th
respondent is vitiated in law and totally unconstitutional and so set aside the
same. It was further held that the order would not give any preferential right
to the petitioner to seek appointment. The respondents were given the liberty
to advertise afresh for the post. It was also held that the respondents are not
precluded from creating one more post in case they find the petitioner eligible,
keeping in view the fact that the 9th respondent has crossed the age of 40.
5. The petitioner aggrieved by the fact that prayer (iii) in the writ
petition, namely, directing the respondents to award fair marks in the
interview and to appoint her to the post, has not been allowed in spite of the
appointment of the 9th respondent being set aside, has filed W.A.No.236/2021.
The 9th respondent has filed W.A.No.491/2021 aggrieved by the impugned
judgment setting aside his appointment. W.A.No.236/2021 has been filed by
the aforesaid respondents aggrieved by the findings of the learned Single Judge
that the appointment of the 9th respondent is vitiated in law and
unconstitutional.
6. Heard the learned counsel for all the parties.
7. The petitioner challenges the selection process on two grounds,
namely, (i) nepotism/favoritism on the part of the members of the Selection
Writ Appeal Nos.236, 271 and 491 of 2021
Committee and (ii) Ext.P7 recommendation letter from Father Samuel
Varghese Paravila, Vicar, St. Thomas Malankara Catholic Church, Vayala,
Anchal, to Major Archbishop of Thiruvananthapuram, that is, the Manager of
St. Johns College, Anchal, Kollam, the 5 th respondent. In the writ petition, the
specific allegation is that the 9th respondent who is a far less meritorious
candidate compared to the petitioner, has been illegally and wrongly awarded
19 marks with the ulterior motive of denying appointment to the petitioner,
who in turn has only been awarded 8 marks for the interview. The members
of the Selection Committee, especially the 8th respondent, is having close
relation with the 9th respondent. In Ext.P6 application submitted by the 9 th
respondent for the post, the 8th respondent has been shown as one of the
referees. The 8th respondent has influenced all the other members of the
Selection Committee, due to which they have awarded 19 marks to the 9 th
respondent and awarded low marks to the petitioner. Further, Ext.P7,
according to the petitioner, shows the clear bias involved in the selection
process. Ext.P7 letter has been addressed to the Chairman of the Selection
Committee recommending the appointment of the 9th respondent. Reference
was also made to Statute 4(2) of Chapter 3 of the Kerala University First
Statutes, 1977 (the Statutes) and the relevant clause in the UGC Regulation,
Writ Appeal Nos.236, 271 and 491 of 2021
2018, to point out the course to be followed or adopted in case any of the
member(s) of the Selection Committee is/are acquainted or related to the
candidate(s) appearing in the selection process.
8. Clause 5.1 of the UGC Regulations deal with the composition of
the Selection Committee and sub-clause V with the committee for the post of
Assistant Professor in colleges including Private and Constituent colleges.
The composition of the Committee as per this clause and the Selection
Committee constituted in this case are as follows -
5.1.V. Assistant Professor in Selection Committee constituted in
Colleges including Private and the case on hand
Constituent Colleges:
i) Chairperson of the Additional 10th respondent
Governing Body of the
college or his/her nominee
from amongst the members
of the Governing body, who
shall be the Chairperson of
the Committee.
ii) The Principal of the 6th respondent/Additional
College 15th respondent
iii) Head of the 8th respondent
Department/Teacher-in-
charge of the subject
concerned in the College.
Writ Appeal Nos.236, 271 and 491 of 2021
iv) Two nominees of the Vice Additional respondents
Chancellor of the affiliating 10 and 11
university, of whom one
should be a subject expert.
In case of colleges notified/
declared as minority
educational institution, two
nominees of the Chairperson
of the college from out of a
panel of five names,
preferably from the minority
community, recommended by
the Vice Chancellor of the
affiliating university, from
the list of experts suggested
by the relevant statutory
body of the college, of whom
one should be a subject
expert
v) Two subject-experts not Additional respondents 12
connected with the college and 13
shall be nominated by the
Chairperson of the college
governing body out of a
panel of five names
recommended by the Vice
Chancellor from the list of
subject experts approved by
the relevant statutory body
of the university concerned.
Writ Appeal Nos.236, 271 and 491 of 2021
In case of colleges
notified/declared as minority
educational Institutions, two
subject experts not
connected with the
University nominated by the
Chairperson of the
Governing Body of the
College out of the panel of
five names, preferably from
the minority communities,
recommended by the Vice
Chancellor from the list of
subject experts approved by
the relevant statutory body
of the College
vi) An academician Not Applicable
representing SC/ST/OBC/
Minority/Women/Differently-
abled categories, if any of
candidates belonging to any
of these categories is the
applicant, to be nominated
by the Vice Chancellor, if
any of the above members of
the selection committee does
not belong to that category
(b) Five members, including two
outside subject experts, shall
constitute the quorum.
Writ Appeal Nos.236, 271 and 491 of 2021
The composition of the Selection Committee is not disputed and the petitioner
has no case that it is not in accordance with the aforesaid clause.
10. According to the petitioner, the 8th respondent, the HoD and Asst.
Professor, Department of Environmental Science of the college is the person
who has close relations with the selected candidate, namely, the 9 th respondent
and hence he should not have been part of the Committee. The argument
advanced on behalf of respondents 5 to 8, 10 to 13, 15 and 16 (the
Management) is that the 8th respondent has mandatorily to be part of the
Selection Committee to make its composition in conformity with clause 5.1.V
and therefore, he could not be avoided under any circumstance. Per contra, it
is submitted on behalf of the petitioner that as the 8 th respondent has close
relations with the 9th respondent, he ought to have recused himself from the
Committee. In support of this argument, reference was made to Statute 4(2) of
the Statutes.
11. Statute 4 in Chapter 3 of the Statutes deal with Selection
Committee for appointment of teachers. Clause (2) of Statute 4 reads -
"4. Selection Committee for appointment of Teachers. -
(1) xxx xxx
(2) No member of the Committee who is an applicant for the post or is related to or
interested in any of the applicants for the post shall take part in the deliberations of the
Committee, so far as that post is concerned." (Emphasis supplied)
Writ Appeal Nos.236, 271 and 491 of 2021
Therefore, as per the aforesaid provision if only a member of the Committee is
related to or interested in any of the applicant(s) for the post, he need keep
away from the deliberations of the Selection Committee so far as that post is
concerned. Now the question is, is the allegation of bias and nepotism raised
against the 8th respondent true? Before we go into the facts and materials
relied on by the petitioner in support of her allegation, we will consider the
question as to what constitutes bias and the precedents on the same.
12. Massey in his treatise on Administrative Law has described the
principle of bias in the following words: "personal bias arises from a certain
relationship equation between the deciding authority and the parties which
incline him unfavourably or otherwise on the side of one of the parties before
him. Such equation may develop out of varied forms of personal or
professional hostility or friendship." (Administrative Law by I.P. Massey 3rd
Edition - @ page 151)
13. A predisposition to decide for or against one party, without proper
regard to the true merits of the dispute is bias. There must be reasonable
apprehension of that predisposition, which apprehension must be based on
cogent materials. The test for bias is whether a reasonable intelligent man,
fully apprised of all the circumstances, would feel a serious apprehension of
Writ Appeal Nos.236, 271 and 491 of 2021
bias. (Secretary of Government v. Munuswamy, 1989 KHC 236)
14. There must be reasonable evidence to satisfy that there was a real
likelihood of bias. Vague suspicions of whimsical, capricious and
unreasonable people should not be made the standard to regulate normal
human conduct (International Authority of India v. K. D. Bali (1988) 2
SCC 360).
15. In Madan Lal v. State of J. & K., 1995 KHC 839 SC, the
petitioners challenged the process of selection of Munsiffs' in the State of
Jammu and Kashmir undertaken by the Jammu and Kashmir Public Service
Commission. Their main contention was that the viva voce had been so
manipulated that only preferred candidates, by inflating their marks in the
viva voce, were permitted to get in the select list. The petitioners subjectively
felt that as they had fared better in the written test and had got more marks
therein as compared to the selected respondents, they should have been given
more marks also at the oral interview. The Apex court held that the same is in
the realm of assessment of relative merit of candidates concerned by the
expert committee before whom the candidates appeared for the viva voce test.
It remains in the exclusive domain of the expert committee to decide whether
more marks should have been assigned to the petitioners or to the respondents.
Writ Appeal Nos.236, 271 and 491 of 2021
The same cannot be the subject matter of an attack before the court as it is not
sitting as a court of appeal over the assessment made by the committee so far
as the candidates interviewed by them are concerned. Merely on the basis of
the petitioners' apprehension or suspicion that they were deliberately given
less marks at the oral interview as compared to the rival candidates, it could
not be said that the process of assessment was vitiated.
16. In Ranjit Thakur v. Union of India, AIR 1987 SC 2386, the
decision of a Court - Martial under the Army Act, 1950 was questioned as
being biased. The appellant before the Apex Court had been punished for
violating the norms for presenting representations to the higher officer. While
serving the sentence he was again tried for disobeying a lawful command
given by his superior officer. The Court - Martial consisted of the 4 th
respondent therein and two others. Against the 4th respondent, the appellant
had sent representations complaining ill - treatment. The proceedings were
challenged on the ground of bias on the part of the 4 th respondent. The Apex
Court applied the test of 'real likelihood of bias' to mean whether a reasonable
person, in possession of relevant information, would have thought that bias
was likely and whether the authority concerned was likely to be disposed to
decide the matter only in a particular way. It was observed that, what was
Writ Appeal Nos.236, 271 and 491 of 2021
relevant was the reasonableness of apprehension in that regard in the mind of
the party and pointed out that the proper approach for the Judge was not to
look at his own mind and ask himself, however, honestly, "Am I biased?" but
to look at the mind of the party before him. In considering whether there was a
real likelihood of bias, the court does not look at the mind of the judge himself
or at the mind of the chairman of the tribunal, or whoever it may be, who sits
in a judicial capacity. It does not look to see if there was a real likelihood that
he would, or did, in fact favour one side at the expense of the other. The court
looks at the impression which would be given to other people. Even if he was
as impartial as could be, nevertheless if right minded persons would think that
in the circumstances there was a real likelihood of bias on his part, then he
should not sit. Thus tested, it was held that, the conclusion becomes
inescapable that, having regard to the antecedent events the participation of
the 4th in the Court Martial rendered the proceedings coram non judice and the
judgment a nullity.
17. Coming to the case on hand, one reason for alleging close
relations between the 9th respondent- the successful candidate, and the 8 th
respondent - a member of the Selection Committee, is Ext.P9 Facebook
photographs, which show both of them standing together. It is less said the
Writ Appeal Nos.236, 271 and 491 of 2021
better about this 'piece of evidence' relied on by the petitioner. Photographs
cannot be taken as the basis for concluding that the 8 th respondent is 'related to
or interested in' the 9th respondent as alleged by the petitioner.
18. It is true that the 9th respondent in his Ext.P6 application for the
post, has referred to the name of the 8th respondent as one of the referees.
According to the Management, the 8th respondent has mandatorily to be part
of the Selection Committee if the composition of the Selection Committee is
to be in conformity with clause 5.1.V of the UGC Regulation and therefore, he
could not be avoided in any circumstance. In answer to this it was submitted
on behalf of the petitioner that, it is anticipating such situations where it may
not be possible for a member(s) of the Selection Committee to take part in the
selection process due to their connection with a candidate(s), the rule making
authority has provided for a quorum of five though as per the aforesaid clause,
seven members constitute the Selection Committee. Hence it was pointed out
that the argument that the 8th respondent being the HoD of the Department
concerned could not be avoided, is incorrect. On behalf of the Management, it
was pointed out that quorum has been fixed not to enable any member(s) to
recuse, but to ensure that there should be a minimum of 5 members to
constitute a Selection Committee. In our view, it is quite unnecessary to go
Writ Appeal Nos.236, 271 and 491 of 2021
into the intention of the rule making authority in fixing the quorum, as
adjudication of the issues involved can be done even without going into the
same.
19. Merely because the 8th respondent has been referred to in Ext.P6
application as a Referee is also no ground to hold close relations between the
two. Clause 4(2) of the Statute would come into play only if a member of the
Committee is 'related to or interested' in any of the candidates. Only then he
needs to recuse himself from the deliberations of the Selection Committee.
Here apart from Ext.P9 Facebook photographs and a mention of the 8 th
respondent in Ext.P6 application, there are no materials on record to hold
close relations between the two.
20. Now coming to Ext.P7, which according to the petitioner is proof
of the blatant move made by the 9 th respondent to influence the Selection
Committee, which in turn has acted upon the same, which is evident by the
abysmally low marks of 8 awarded to the petitioner. According to the
petitioner she has an excellent academic record and hence the reason why she
was awarded 85 out of 100 marks for her academic record, research
performance and teaching experience, whereas the 9th respondent was able to
score only 75 out of 100 marks under this head. Therefore, it was to get over
Writ Appeal Nos.236, 271 and 491 of 2021
this and to ensure that the 9 th respondent succeed to the post he has been given
19 out of 20 marks for the interview, which according to the petitioner is
arbitrary, illegal and wrong.
21. Admittedly there were only two candidates competing for the
post in question, that is, the petitioner and the 9th respondent. The fact that the
Management was bound to follow the stipulations in the UGC Regulation in
the selection process is also not in dispute. Clause 4.0 of the UGC
Regulations, 2018 deal with Direct Recruitment and Clause 4.1.I deals with
the eligibility conditions of Assistant Professor in the disciplines of Arts,
Commerce, Humanities, Education, Law, Social Sciences, Sciences,
Languages, Library Science, Physical Education, and Journalism & Mass
Communication. Nobody has a case that the candidates did not have satisfy
the said eligibility conditions and hence we are not specifically referring to the
eligibility conditions referred to in the Regulation. However, the Note to the
aforesaid Clause is relevant, which reads: "The Academic score as specified in
Appendix II (Table 3A) for Universities, and Appendix II (Table 3B) for
Colleges, shall be considered for short-listing of the candidates for interview
only, and the selections shall be based only on the performance in the
interview". This Note is not challenged by the petitioner. Therefore, the
Writ Appeal Nos.236, 271 and 491 of 2021
selection could only be based on the performance of the candidates in the
interview and the academic score used for shortlisting cannot be taken into
consideration for assessing the performance of the candidate for the interview.
Realizing this, the argument advanced is that the petitioner is not asking this
court to sit in appeal or re-assess the marks awarded by the Committee, but to
look into the question whether there was a reasonable likelihood of bias in the
selection process. According to the petitioner, Ext. P7 letter, the award of 8
marks coupled with Ext.P9 Facebook photos are ample proof of the
'reasonable likelihood of bias' in the selection process. In support of this
argument reference has been made to the decision in A.K.Kraipak v. Union
of India, 1969 (2) SCC 262 wherein it has been held that, what is to be
looked into is whether there is reasonable ground for believing that there was
'reasonable likelihood of bias'. Reference was also made to the decision in
Crawford Bayley & Co v. Union of India, (2006) 6 SCC 25, wherein the
Apex Court explained the doctrine of "no man can be a Judge in his own
cause".
22. On the other hand, the Management referred to the following two
decisions - In Ashok Kumar Yadav v. State of Haryana, AIR 1987 SC 454,
the Apex Court held that the court cannot sit in judgment over the marks
Writ Appeal Nos.236, 271 and 491 of 2021
awarded by interviewing bodies unless it is proved or obvious that the
marking is plainly and indubitably arbitrary or affected by oblique motives. It
is only if the assessment is patently arbitrary or the risk of arbitrariness is so
high that a reasonable person would regard arbitrariness as inevitable, that the
assessment of marks at the viva voce test may be regarded as suffering from
the vice of arbitrariness. Sometimes, a suspicion may be created in one's mind
that some element of arbitrariness might have entered in the assessment in the
viva voce examination. However, suspicion cannot take the place of proof and
the court cannot strike down the selections made on the ground that the
evaluation of the merits of the candidates in the viva voce examination might
be arbitrary.
23. In Ashok Kumar v. State of Bihar, (2017) 4 SCC 357, the Apex
Court has laid down the principle that when a candidate appears at an
examination without objection and is subsequently found to be not successful,
a challenge to the process is precluded. The question of entertaining a petition
challenging an examination would not arise where a candidate has appeared
and participated. He or she cannot subsequently turn around and contend that
the process was unfair or that there was a lacuna therein, merely because the
result is not palatable. It is also well settled that those candidates who had
Writ Appeal Nos.236, 271 and 491 of 2021
taken part in the selection process, knowing fully well the procedure laid
down therein are not entitled to question the same upon being declared to be
unsuccessful.
24. Therefore, referring to the aforesaid decisions, the argument
advanced on behalf of the Management is that the petitioner, having
participated in the selection process without a demur, turns out unsuccessful,
cannot after the results have come out, turn around and challenge the selection
process.
25. It is no doubt true that the principle of estoppel which prevents a
candidate from challenging the selection process after having failed in it, has
been reiterated in a plethora of judgments by the Apex Court. However, as
held in Dr. (Major) Meeta Sahai v. State of Bihar, MANU/SC/1752/2019,
the candidate by agreeing to participate in the selection process only accepts
the prescribed procedure and not the illegality in it. In a situation where a
candidate alleges misconstruction of statutory rules and discriminating
consequences arising therefrom, the same cannot be condoned merely because
a candidate has partaken in it. The constitutional scheme is sacrosanct and its
violation in any manner is impermissible. In fact, a candidate may not have
the locus to assail the incurable illegality or derogation of the provisions of the
Writ Appeal Nos.236, 271 and 491 of 2021
Constitution, unless he/she participates in the selection process. Therefore, the
question again, is has the petitioner succeeded in proving any illegality in the
selection process?
26. Kraipak (Supra) was a case in which the Acting Chief
Conservator of Forest, Jammu and Kashmir was a member of the Selection
Board, which had been set up to select the officers for the Indian Forest
Service from those serving in the Forest Department of Jammu & Kashmir.
The said person who was a member of the Selection Board was also one of the
candidates for selection to the Indian Forest Service. He did not sit on the
Section Board at the time when his name was considered for selection. But he
did sit on the Selection Board and participated in the deliberations when the
names of his rival officers were considered for selection and took part in the
deliberations of the Selection Board while preparing the list of the selected
candidates in order of preference. The Apex Court held that the presence of
the said person vitiated the selection on the ground that there was reasonable
likelihood of bias affecting the process of selection. The argument of the
aforesaid person that he had not taken part in the deliberations of the Selection
Board when his name was considered, was rejected. It has been held that
when the very fact that he was a member of the Selection Board must have
Writ Appeal Nos.236, 271 and 491 of 2021
had its own impact on the decision of the Selection Board. Admittedly, he did
participate in the deliberations of the Selection Board when the claim of his
rivals had been considered. He was also party to the preparation of the list of
selected candidates in the order of preference. At every stage of his
participation in the deliberations of the Selection Board, there was a conflict
between his interest and duty. It was in the said background, it was held that
the real question is not whether he was biased. It is difficult to prove the state
of mind of a person. Therefore, what has to be looked into is whether there is
reasonable ground for believing that there was likelihood of the member to
have been biased. There must be a reasonable likelihood of bias. In deciding
the question of bias, the court will have to take into consideration human
probabilities and ordinary course of human conduct. It was emphasized that it
was not necessary to establish bias but it is sufficient to invalidate the
selection process, if it could be shown that there was reasonable likelihood of
bias. The likelihood of bias may arise on account of proprietary interest or on
account of personal reasons, such as hostility to one person or personal
friendship or family relationship with the other. Where reasonable likelihood
of bias is alleged on the ground of relationship, the question would always be
as to how close the degree of relationship or in other words, is the nearness of
Writ Appeal Nos.236, 271 and 491 of 2021
relationship so great as to give rise to reasonable apprehension of bias on the
part of the authority making the selection.
27. In Crawford Bayley (Supra) it has been held that the doctrine
"no man can be a Judge in his own cause" can be applied only to cases where
the person concerned has a personal interest or has himself already done some
act or taken a decision in the matter concerned. For the doctrine to come into
play, it must be shown that the person concerned has a personal bias or
connection or a personal interest or has personally acted in the matter
concerned and/or has already taken a decision in one way or the other which
he may be interested in supporting. For the aforesaid doctrine to apply certain
parameters have to be observed, i.e., a personal bias to the person concerned
or personal interest of the person acted in the matter concerned and has
already taken a decision which he may be interested in supporting. These
parameters have to be observed before coming to the conclusion that "no man
can be a Judge in his own cause". It was also held that this is a matter of
factual inquiry.
28. In the case on hand, the Management contends that Ext.P7 is only
a letter written by 'his Beatitude Moran Mor Baselios Cardinal Cleemis
Catholicos Major Archbishop of Trivandrum' to the Manager of the College
Writ Appeal Nos.236, 271 and 491 of 2021
and that it is quite usual or normal for a Vicar to write letters of such nature on
behalf of a member of his Church and that there is nothing unusual about it.
Ext.P7, as pointed out, is not a letter written to the Chairman of the Selection
Committee as alleged by the petitioner. On the other hand, the same is
addressed to the Manager of St. John's College, namely, the 5 th respondent,
who admittedly was not a member of the Selection Committee. It is true that
nominees of the Management were also Members of the Selection Committee.
But that cannot also automatically lead to a conclusion of bias. The person
who received the letter may or may not have been influenced by the same and
so unless other materials come on record, it cannot be concluded on the basis
of Ext.P7 alone that there was in fact bias in the selection process.
29. Further, on behalf of the Management, our attention has also been
drawn to Exts.R11(a) to R11(c). These communications have been issued by
the 3rd respondent- University of Kerala, to additional respondents 11, 12 and
13 nominating them as subject experts in the Selection Committee. They
were instructed to attend the interview on the request of the Management and
to forward the confidential report, the proforma of which was enclosed in the
communication, to the University when the selection process was over.
Ext.R11(d) is a similar communication sent by the University of Kerala to the
Writ Appeal Nos.236, 271 and 491 of 2021
additional 10th respondent, a nominee of the Management. But there is no
proforma attached to Ext.R11(d) as is seen in Exts.R11(a) to R11(c).
Therefore, as pointed out on behalf of the Management, marks in the
interview seems to have been awarded by additional respondents 11 to 13, that
is, the subject experts only, and not by the other members constituting the
Selection Committee. This would also rule out the possibility of the 8 th
respondent's alleged influence over the other members of the Committee.
30. In the case on hand, merely on the basis of Ext.P9 Facebook
photographs or the fact that the 8th respondent is the HoD of the Department in
which the 9th respondent was working as a Guest Lecturer, would not
automatically lead to the conclusion that there was personal friendship
between the two. As held in Kraipak (Supra), the question to be looked into
is, how close is the degree of relationship between the 8 th and 9th respondents
or whether the nearness of relationship between the two is so great as to give
rise to a reasonable apprehension of bias on the part of the 8 th respondent, a
member of the Selection Committee in making the selection. In our view the
materials on record, that is the Facebook photos or the relationship of HoD
and guest lecturer in the same Department are not sufficient to conclude that
the two are very close or that there was personal friendship between the two.
Writ Appeal Nos.236, 271 and 491 of 2021
Therefore, the decisions cited on behalf of the petitioner are not applicable to
facts of the case on hand.
31. Now coming to Writ Appeal No.271/2021 filed by the petitioner.
The petitioner is aggrieved by the fact that though the appointment of the 9 th
respondent has been set aside, her prayer for directing the Selection
Committee to award proper marks to her and to select her to the aforesaid
post, has not been considered by the learned Single Judge. The grounds on
which the selection of the 9th respondent is challenged, if accepted, is
applicable to the petitioner herein also. Admittedly, the additional 11 th
respondent, Dr. Sabu Joseph, Professor and Head, Department of
Environmental Sciences, University of Kerala, Karyavattom,
Thiruvananthapuram, one among the three subject experts who had evaluated
the performance of the petitioner and the 8th respondent in the interview and
awarded marks, has issued Exts.R7(a) and R7(b), the Conduct and Experience
Certificates respectively to the petitioner. The petitioner has no case that apart
from the 8th respondent, the other members of the Selection Committee had
any interest adverse to her. Of course, she does allege that all the other
members were influenced by the 8th respondent, for which also there is no
material before us. A person who challenges the selection process on the
Writ Appeal Nos.236, 271 and 491 of 2021
ground that one of the members of the Selection Committee is closely
associated with the successful candidate, has no qualms when it comes to her
own case when it is pointed out that one of the members of the Selection
Committee, i.e., the additional 11th respondent is known to her and has issued
her character certificate as well as the certificate of experience. Had the
petitioner been successful, probably the 9th respondent would have also raised
a similar contention of bias and favoritism. The materials on record do not
make out a case of bias or much less a likelihood of bias. Hence, we hold that
the petitioner is not entitled to the reliefs prayed for in the writ petition.
In the result, W.A.No.271 of 2021 is dismissed. W.A.Nos.236 and 491
of 2021 are allowed and the impugned judgment is set aside.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
C.S. SUDHA
JUDGE
ami/jms
