Dr.Seena J vs University Of Calicut
2022 Latest Caselaw 316 Ker

WP(C) NO. 15144 OF 2021             1



              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
     THURSDAY, THE 13TH DAY OF JANUARY 2022 / 23RD POUSHA, 1943
                      WP(C) NO. 15144 OF 2021
PETITIONER:
          DR.SEENA J
          AGED 34 YEARS
          D/O LATE M.A JOHNSON, SWASTHIKA, THOTTILPEEDIKA
          ROAD, CHEVARAMBALAM P.O., CALICUT DISTRICT,
             PIN CODE-673 017.
             BY ADVS.
             SIMLA PRABHAKARAN
             MAHIN PRABHAKARAN
             BABILA K.K.
             K.V.PRAVEEN


RESPONDENTS:
    1     UNIVERSITY OF CALICUT
          REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY,
          THENJIPPALAM, KERLA, PIN-673 635.
      2      VICE-CHANCELLOR,
             UNIVERSITY OF CALICUT, CALICUT UNIVERSITY,
             THENJIPPALAM, KERALA, PIN-673 635.
      3      REGISTRAR,
             UNIVERSITY OF CALICUT, CALICUT UNIVERSITY,
             THENJIPPALAM, KERALA, PIN-673 635.
      4      DR. NUAIMAN K.A,
             ASSISTANT PROFESSOR, DEPARTMENT OF JOURNALISM & MASS
             COMMUNICATION, UNIVERSITY OF CALICUT, THENJIPPALAM,
             KERALA, PIN-673 635.
            BY ADVS.
            SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY
            T.B.HOOD
            M.ISHA
            AMAL KASHA


       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON    13.01.2022,   THE   COURT   ON    THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 15144 OF 2021                2



                                                           "CR"
                                  JUDGMENT

The 4th respondent, Dr. Nuaiman K.A was appointed to the post of

Assistant Professor (Journalism) in the Department of Journalism and Mass

Communication, Calicut University. The petitioner, an aspirant to the very

same post, seeks to quash Exhibit P3 minutes of the Syndicate Committee,

resolving to appoint the 4th respondent and also Exhibit P4 consequential

order passed by the 1st respondent.

2. The brief facts are as under:

Applications were invited to the Post of Assistant Professor in Journalism

pursuant to Exhibit P1 notification issued by the 3rd respondent. Two

vacancies were notified for the post of Assistant Professor (Journalism) and it

was mentioned therein that the appointment would be made from the rank list

itself. The petitioner being a person eminently qualified for the post put in her

application as a candidate in the General Category and took part in the

interview. Exhibit P2 is the Rank List published on the website of the

University which reveals that she was ranked No.3. According to the

petitioner, the 4th respondent is a Muslim Reservation Candidate and he is

seen to have been placed as Rank No.1 in Exhibit P2 Rank List. It is

contended that as per the reservation roster, the post had to be given to a

General Candidate and not to a Muslim Reservation Candidate. The syndicate

meeting held on 30.1.2021 resolved to appoint the 4th respondent against the

open (permanent) vacancy based on the recommendations of the Select

Committee and Exhibit P3 is the copy of the minutes. The Rank List was

published in the web site of the University only on 4.2.2021. However, much

prior to the said date, the 4th respondent signed on the attendance register.

This would amply demonstrate that the 4th respondent is a predetermined

candidate and his appointment was carried out in an objectionable and

fraudulent manner. As the petitioner was placed No.3 in the Rank List and as

she is an open category candidate, she should have been given appointment

instead of the 4th respondent. It is stated that the appointment was not made

in a transparent manner and in clear violation of the UGC guidelines and

Regulations. Though the petitioner requested the University to furnish her the

details of the marklist of the candidates, the same was denied. It is on these

allegations that this Writ Petition is filed seeking the following reliefs:

i. Issue a writ of certiorari or any other appropriate writ, order or direction to

quash item 2021.112 dated 31.01.2021 in Exhibit P-3 minutes and Exhibit

P-4 order passed by the 1st Respondent University Syndicate and

consequential appointment of Respondent No.4 in the post of Assistant

Professor (Journalism) in the Department of Journalism and Mass

Communication, Calicut University.

ii. Issue a writ of mandamus or any appropriate writ, order or direction to the

1st Respondent University to revoke the appointment of Respondent No.4

in the post of Assistant Professor (Journalism) in the Department of

Journalism and Mass Communication, Calicut University.

iii. Declare that the selection and appointment of Respondent No.4 in the post

of Assistant Professor (Journalism) in the Department of Journalism and

Mass Communication, Calicut University is null and void.

3. A counter affidavit has been filed on behalf of respondents 1 to 3.

In the counter affidavit, it is stated that the petitioner was an applicant to the

post of Assistant Professor in Journalism pursuant to a notification issued by

the University. After a due process of selection, the rank list was published on

31.12.2019. The petitioner herein was included as Serial No.3 in the Rank List.

It is contended that a duly constituted Selection Committee conducted the

interview and the Rank List was prepared purely based on merit. According to

the respondents, as per Section 6 (2) of the University Act, the appointment

of Assistant Professor in the Universities is to be made by clubbing together all

the teaching departments as one unit for the purpose of applying the rules of

reservation and rotation. The turns of filling up the vacancies in the

Department of Journalism are 29 and 51A. While the 29th turn is earmarked

for Open Competition Candidates, 51A would go to a Physically Challenged

person. It is contended that as the 4th respondent was selected on the same

standard as applied to General Category and as he stood first in the Rank List,

he is bound to be treated as an own merit candidate. It is further stated that

the petitioner is not entitled to get appointment, as the 4th respondent, who

is the appointee, is the first rank holder in an open competition and the

second vacancy would go to a physically challenged person as per the roster.

4. In the counter affidavit filed by the 4th respondent, it is stated

that the 4th respondent was appointed as Assistant Professor by Ext.P4 order

in the open vacancy. It is the contention of the 4th respondent that he being

a candidate who qualifies on merit, he is entitled to occupy the general

category even though he belongs to a reservation category. It is further stated

that Exts.R4(a) to R4(h) would show the credibility and qualifications of the

4th respondent and the assertions to the contrary made by the petitioner in

the writ petition are untenable. The 4th respondent has also stated that

pursuant to the decision taken as per Ext.P3 minutes, the 4th respondent was

served with an email and it was in the said circumstance that he had joined

duty on 01.02.2021.

5. I have heard Smt. Simla Prabhakaran, the learned counsel

appearing for the petitioner, Sri. P.C. Sasidharan, the learned Standing

Counsel appearing for the University and Sri. Amal Kasha, the learned counsel

appearing for the 4th respondent.

6. The prime contention of the petitioner is that the 4th respondent

is a reservation candidate and that he was fraudulently appointed in the open

category. From the assertions made in the counter affidavit filed by

respondents 1 to 3, it is obvious that the 4th respondent was selected on the

same standard as applied to the general category and he stood first in the

General Merit List. It is by now settled without any pale of doubt that if a

candidate is entitled to be admitted on the basis of his own merit then such

admission should not be counted against the quota reserved for Scheduled

Caste or Scheduled Tribe or any other reserved category since that will be

against the Constitutional mandate enshrined in Article 16(4).

7. In Indra Sawhney & Ors. vs. Union of India & Ors. (1992

Suppl. (3) Supreme Court Cases 217), the Apex Court held as follows in

paragraph 811 of the judgment:-

"In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates."

8. In Ritesh R. Sah vs Dr. Y.L. Yamul & Ors 1996 SCC (3) 253,

the Apex Court, following Indra Sawhney (supra) reiterated the very same

principles.

9. It appears that the petitioner has preferred the writ petition on

the premise that the 4th respondent was selected not on his own merits but in

his status as a muslim reservation candidate. From the records, it has turned

out that this is nothing but a misconception on the part of the petitioner. The

substratum of the case set up by the petitioner falls to the ground as a result.

10. The next contention advanced by the learned counsel for the

petitioner is that the syndicate had not approved the recommendations of the

selection committee. I find from Ext.P3 extract of the minutes of the syndicate

committee that the Syndicate considered the recommendation of the Selection

committee for the post of Assistant Professor (Permanent) in the Department

of Journalism and resolved to approve the recommendations of the selection

committee and to approve the rank list for the post of Assistant Professor and

to appoint the 4th respondent in the post of Assistant Professor. In that view

of the matter, the 2nd contention raised by the petitioner also cannot be

sustained.

11. The 3rd contention advanced by Miss. Simla Prabhakaran is that

though the details of appointment of the 4th respondent was uploaded in the

website only on 04.02.2021, much prior to that the 4th respondent had signed

on the attendance register. As is borne out from Exhibit P4, the 4th

respondent was informed that he has been selected for appointment as

Assistant Professor in the Department of Journalism and Mass Communication

against a permanent open vacancy and by a memo dated 30.1.2021 sent by

email, he was asked to report before the registrar within a period of 15 days.

The 4th respondent joined duty with effect from the FN of 1.2.2021. There

could have been some delay in publishing the rank list in the official website

and in the facts and circumstances, I don't find that the same is a pertinent

enough reason to unsettle the appointment granted to the 4th respondent.

In view of the discussion above, I do not think that the petitioner has

made out a case for interference. This writ petition is dismissed. No costs.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE NS

APPENDIX OF WP(C) 15144/2021

PETITIONER'S EXHIBITS:

Exhibit P1        TRUE COPY OF NOTIFICATION NO.GA-
                  11/C1/156687/2019/ADMN DATED 31.12.2019
                  ISSUED BY THE 3RD RESPONDENT

Exhibit P2        TRUE COPY OF THE RANK LIST ISSUED AS

NOTIFICATION NO.GA.II/C1/156687/2019/ADMN DATED 31.12.2019 ISSUED BY THE 2ND RESPONDENT

Exhibit P3 TRUE COPY OF THE EXTRACT OF THE MINUTES OF THE SYNDICATE COMMITTEE AS ITEM 2021.112 DATED 30.1.2021 ISSUED BY THE 1ST RESPONDENT

Exhibit P4 TRUE COPY OF THE LETTER U.O.NO.

2867/2021/ADMN DATED 5.3.2021 ISSUED BY THE ASST. REGISTRAR CALICUT UNIVERSITY

Exhibit P5 TRUE COPY OF THE RELEVANT PORTION OF THE UGC REGULATION 2018

Exhibit P6 TRUE COPY OF THE RTI LETTER DATED 8.2.2021 SENT BY THE PETITIONER TO THE PUBLIC INFORMATION OFFICER, CALICUT UNIVERSITY

Exhibit P7 TRUE COPY OF THE REPLY LETTER NO.56084/VC-

ASST-3/2021/ADMN DATED 20.3.2021 ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT

Exhibit P8 TRUE COPY OF THE RTI REPLY RECEIVED BY THE PETITIONER DATED 7/3/2021 FROM THE RESPONDENT UNIVERSITY.

Exhibit P9 TRUE COPY OF THE RTI REPLY RECEIVED BY THE PETITIONER DATED 12/3/2021 FROM THE RESPONDENT UNIVERSITY.

Exhibit P10 TRUE COPY OF THE RTI REPLY RECEIVED BY THE PETITIONER DATED 17/3/2021 FROM THE RESPONDENT UNVERSITY.

Exhibit P11 TRUE COPY OF THE ATTENDANCE REGISTER OF THE DEP. OF JOURNALISM AND MASS COMMUNICATION IN THE MONTH OF FEBRUARY OF THE RESPONDENT UNIVERSITY.

Exhibit P12 TRUE COPY OF THE INTERIM ORDER DATED 12/8/2021 IN WP(C) 16456/2021 PASSED BY THIS HONOURABLE COURT.

RESPONDENTS' EXHIBITS:

EXHIBIT R4(a) TRUE COPY OF THE MASTER OF ARTS CERTIFICATE ISSUED BY THE UNIVERSITY OF HYDERABAD

EXHIBIT R4(b) TRUE COPY OF THE DOCTOR OF PHILOSOPHY CERTIFICATE ISSUED BY THE UNIVERSITY OF HYDERABAD.

EXHIBIT R4(c) TRUE COPY OF THE NATIONAL ELIGIBILITY TEST CERTIFICATE ISSUED BY THE UNIVERSITY GRANTS COMMISSION.

EXHIBIT R4(d) TRUE COPY OF THE LETTER OF INVITATION ISSUED BY THE CENTRE OF SOUTH ASIAN STUDIES, UNIVERSITY OF CAMBRIDGE

EXHIBIT R4(e) TRUE COPY OF THE CERTIFICATE OF VISITING DOCTORAL FELLOWSHIP ISSUED BY THE FREIE UNIVERSITAT, BERLIN

EXHIBIT R4(f) TRUE COPY OF THE CERTIFICATE ISSUED BY CURTIN UNIVERSITY, MALAYSIA.

EXHIBIT R4(g) TRUE COPY OF THE CERTIFICATE ISSUED BY THE INDIAN INSTITUTE OF TOURISM AND TRAVEL MANAGEMENT, NELLORE

EXHIBIT R4(h) TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE 1ST RESPONDENT UNIVERSITY.