Nisha Vellapan Nair vs The Mahatma Gandhi University
2022 Latest Caselaw 8432 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                        PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

          WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944

                             WP(C) NO. 1861 OF 2020

PETITIONER:

               NISHA VELLAPAN NAIR,
               AGED 40 YEARS
               D/O.VELAPPAN NAIR, CHANDRIKALAYAM HOUSE, MOOLAVATTOM P.O.,
               KOTTAYAM - 686 026.

               BY ADV S.M.PRASANTH



RESPONDENTS:

     1         THE MAHATMA GANDHI UNIVERSITY,
               PRIYADARSINI HILLS P.O., KOTTAYAM - 686 560, REPRESENTED BY ITS
               REGISTRAR.

     2         REKHA RAJ,
               ASSISTANT PROFESSOR, SCHOOL OF GANDHIAN THOUGHT AND
               DEVELOPMENTS STUDIES, KOTTAYAM - 686 560.

               BY ADVS.
               SRI.ASOK M. CHERIAN
               SRI.S.SREEKUMAR (SR.)
               SRI.P.MARTIN JOSE
               SRI.P.PRIJITH
               SRI.THOMAS P.KURUVILLA
               SRI.A.J.ABHILASH
               SRI.MANJUNATH MENON
               SRI.AJAY BEN JOSE
               SRI.R.GITHESH
               SHRI.HARIKRISHNAN S.



OTHER PRESENT:

               SRI.SURIN GEORGE IPE-SC




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2022,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 1861 OF 2020

                                        2




                                 JUDGMENT

The constitutive issue in this case is as to the manner in which

marks have been awarded to the petitioner and the 2 nd respondent,

while they were evaluated for the purpose of appointment to the post

of Assistant Professor in the School of Gandhian Thought and

Development Studies, Kottayam - which is a statutory department of

the 1st respondent - Mahatma Gandhi University (hereinafter

referred to as 'the University' for short).

2. I am aware that both sides have raised several

contentions against each other in this writ petition and that

voluminous documents have also been produced.

3. However, all which this Court is now required to consider

are two aspects, namely, with respect to the award of marks for

Ph.D; and as to whether 'certain awards' cited by the petitioner have

been correctly evaluated, while granting or denying marks to her.

4. It is uncontested that the University followed the

University Grants Commission (Minimum qualifications for

Appointment of Teachers and other Academic Staff in Universities

and Colleges and measures for the Maintenance of Standards and

Higher Education) (4th Amendment) Regulations, 2016 ('UGC

Regulations' for short) while conducting the selection and effecting WP(C) NO. 1861 OF 2020

the appointment.

5. Going by the afore Regulations, it is conceded by all sides

that the qualification to the post of Assistant Professor is a

Postgraduate Degree, along with pass in National Eligibility Test

(NET). The UGC Regulations, thereafter, say that a person who has

Ph.D will be exempted from the requirement of NET.

6. The facts on record would show that the petitioner is a

person who had not cleared the NET, but stood exempted from doing

so because she had Ph.D. As far as the 2 nd respondent is concerned,

she had cleared the NET and also had acquired Ph.D.

7. While their merits were assessed by the Selection

Committee - the details of which are available from Exts.P4 and P5

score sheets - the petitioner was not granted any marks for Ph.D;

while the 2nd respondent has been granted six marks.

8. As I have said above, the petitioner also has a case that

'certain awards' obtained by her had not been given sufficient marks

by the Committee.

9. Keeping in mind the undoubted position of law that this

Court cannot trench into areas which are reserved for competent

expert Committees/Bodies, I am certain that judicial review can be

invoked by the petitioner to the extent to verify whether said

Body/Entity has acted correctly and that their decisions are not in WP(C) NO. 1861 OF 2020

defiance of the provisions of the applicable Statutes/Regulations.

10. As I have already said above, the Selection Committee

went by the UGC Regulations, 2016 and by the format prepared

thereunder.

11. It is indubitable from Exts.P4 and P5 that Serial No.10

therein is Ph.D, for which, the maximum mark is 6.

12. However, the Selection Committee appears to have taken

a view that if a person obtains Ph.D without having cleared NET, it

would not inure to him/her any marks at all.

13. The reasoning given by the Selection Committee is that,

in such event, Ph.D will have to be treated as the 'basic qualification

at the entry level' and therefore, that since no marks are given

separately for NET, such a person cannot obtain marks to the Ph.D

either.

14. In other words, the reasoning appears to have gone

through the minds of the Selection Committee is that it is NET which

is important and not Ph.D, and that a person who does not clear the

former, would obtain no benefit for the latter.

15. I have heard Sri.S.M.Prasanth - learned counsel for the

petitioner; Sri.S.Sreekumar, learned Senior Counsel, instructed by

Sri.Martin Jose, appearing for respondent No.2 and Sri.Surin George

Ipe - learned Standing Counsel for the University. WP(C) NO. 1861 OF 2020

16. As indited earlier, the University supports the views of

the Selection Committee saying that a person who obtained Ph.D,

without having cleared NET, cannot be put on higher pedestal than

a person who obtained both. They appear to go with the reasoning of

the Selection Committee that Ph.D would obtain marks under the

format prepared by the UGC only if it is supported by NET and not

otherwise. They seem to have been persuaded to this view because

Ph.D was not an essential qualification, but is a substitute for

clearing NET; and therefore, that it would draw no weight if the

candidate had not cleared the former.

17. Sri.S.Sreekumar - learned Senior Counsel appearing for

the 2nd respondent, also adopted the afore contentions of Sri.Surin

George Ipe, however, further explaining that, going by the 'UGC

Regulations', NET is an essential qualification, while Ph.D is not. He

predicated that when a person applies to the post without NET, it

would lead to rejection, but that petitioner was saved only because

she had Ph.D, which exempted her from obtaining the same. He

submitted that, therefore, the Selection Committee was completely

within its wisdom to have chosen not to grant any marks for the

Ph.D obtained by the petitioner, since it was not preceded by NET.

He concluded his submissions saying that his client, having cleared

the NET and then obtained Ph.D, was better qualified and therefore, WP(C) NO. 1861 OF 2020

that her selection now done by the University cannot be assailed.

18. In reply, Sri.S.M.Prasanth - learned counsel for the

petitioner, submitted that the 'UGC Regulations' do not provide NET

to be the essential qualification, but that it is a Postgraduate Degree

from an Indian University in the relevant subject. He showed me

that, in addition to such qualification, the Regulations provide that

candidate must have cleared NET and that an exemption from this

stipulation is offered to a person with Ph.D, which is obviously, a

higher degree. He then argued that, whatever be the provisions of

the Regulations, as long as the format prepared by the UGC and

which has been followed by the Selection Committee provides marks

only for Ph.D and not NET, their decision to refuse marks to the

latter is clearly and egregiously improper and without rational basis.

He thus prayed that this writ petition be allowed.

19. I have considered and evaluated the afore submissions on

the touchstone of the various materials on record.

20. It is not disputed before me by anyone that the Selection

Committee proceeded on the basis of the 'UGC Regulations, 2016'

and adopted the format under the said Regulations for the purpose

of marking the candidates.

21. The score sheets of the petitioner and that of the 2 nd

respondent are on record as Exts.P4 and P5 respectively, which WP(C) NO. 1861 OF 2020

show that 'Academic Record' has been evaluated on certain specific

criteria, namely Post graduation; M.Phil, Ph.D, JRF, Research papers

and Postdoctoral experience.

22. Pertinently, NET does not find a place in any of these

categories and no marks have been earmarked for such a

qualification.

23. Therefore, if this Court is to accept the arguments of the

University and the 2nd respondent, that the marks stipulated for Ph.D

in the format cannot be granted to a person without NET because

the said qualification is not an essential one under it, then it is

baffling that M.Phil has been ordered to be awarded marks, though

it is not a desirable or essential qualification under the UGC

Regulations.

24. Interestingly, both the petitioner and the 2 nd respondent

are M.Phil holders and have been given maximum marks under such

head.

25. Therefore, it is indubitable that what was sought to be

recognized and granted were marks for specified qualifications, one

of which is the Ph.D, and hence the distinction drawn between a

person who had obtained it after NET and one who had not cleared

the said test, does not stand to reason.

26. This is more so because, Ph.D can never seen to be an WP(C) NO. 1861 OF 2020

entry level qualification, as has been thought by the Selection

Committee and recorded in Exts.P4 and P5, going by the 'UGC

Regulations, 2016'; while, at the best, it is only an additional

qualification to a Postgraduate Degree in the relevant subject.

27. Indubitably, the exemption granted from clearing NET is

only to a person who obtains the Ph.D, but this does not mean that it

loses its relevance or its importance without conjunction of the NET.

This reasoning by the Selection Committee, therefore, is flawed and

will have to be revisited appropriately.

28. Presumably being aware of the mind of this Court as

afore, Sri.S.Sreekumar - learned Senior Counsel, submitted that

even if the above be so, then some weightage ought to have been

given to NET because, otherwise, a person who cleared the said test

would obtain no benefit. He argued that since the essential

qualifications included the NET and not the Ph.D, the refusal to

grant marks to it is per se illegal; but conceded that his client has

not challenged either the Score Sheets or the 'UGC Regulations' on

that account. The learned Senior Counsel, however, submitted that

it was not required for his client to do so specifically because the

'UGC Regulations' give enough and more freedom to the Selection

Committees of the University to devise their own methods and

standards for effecting selection.

WP(C) NO. 1861 OF 2020

29. I must say that, prima facie, the afore submissions of

Sri.S.Sreekumar are also weighty and therefore, worthy of

consideration by the University at the appropriate level. I do not

propose to speak on it affirmatively at this stage, since my intent is

to allow the Selection Committee to reconsider the entire matter

from the afore perspective and under the guidance of the

stipulations in the 'UGC Regulations, 2016'.

30. Coming to the second limb of the arguments of the

petitioner, that certain awards obtained by her were not properly

evaluated by the Selection Committee, I am afraid that I cannot

enter into the merits of those decisions since this Court is barricaded

from travelling into areas which are within the expertise of the

Expert Committees.

31. The Selection Committee, having found that the

petitioner is entitled only to the marks granted to her, I do not think

that it will be justified for this Court to modify it in any manner

whatsoever. The contentions on that ground are therefore, repelled.

Resultantly, I order this writ petition to the limited extent of

directing the 'Selection Committee to the post of Assistant Professor

in the School of Gandhian Thought and Development Studies of the

M.G. University' to reconsider grant of marks to the petitioner and

the 2nd respondent under the head Ph.D, after affording an WP(C) NO. 1861 OF 2020

opportunity of being heard to both the said candidates. This shall be

done within a period of three months from the date of receipt of a

copy of this judgment.

I also leave liberty to the Selection Committee to decide if any

marks are required to be given to the NET - subject to the

contention of the petitioner that such a course is not possible;

clarifying that this Court has not spoken on this conclusively either

in favour or against.

Since this Court is told that 2 nd respondent has already been

appointed based on Ext.P5 Score Sheet, her position will not be

altered until such time as the afore exercise is completed and the

resultant orders communicated to both sides.

I also make it clear that, apart from the issue of award of marks

to Ph.D, this Court has not considered any other and that all of them

are left open to be impelled and pursued, if so warranted in future,

by either sides.

sd/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 1861 OF 2020

APPENDIX OF WP(C) 1861/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SELECTION NOTIFICATION DATED 28/04/2018.

EXHIBIT P2 TRUE COPY OF THE ONLINE APPLICATION SUBMITTED BY THE PETITIONER DATED 6/1/2018.

EXHIBIT P3 TRUE COPY OF THE FINAL RANKED LIST OF THE DATED 05/10/2019.

EXHIBIT P4 TRUE COPY OF THE MARKS GIVEN TO THE PETITIONER OBTAINED INTO RIGHT TO INFORMATION ACT 24/9/2019.

EXHIBIT P5 TRUE COPY OF THE MARKS GIVEN TO THE 2ND RESPONDENT OBTAINED INTO RIGHT TO INFORMATION ACT DATED 25/9/2019.

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 13/12/2019.

EXHIBIT P7 TRUE COPY OF THE APPLICATION SUBMITTED BY THE 2ND RESPONDENT AND OBTAINED UNDER THE RIGHT INFORMATION ACT (RTI ACT).

EXHIBIT P8 TRUE COPY OF THE REPORT DATED 11.2.2020.

EXHIBIT P9 TRUE COPY OF QUERY OBTAINED UNDER RTI ACT SHOWING THAT THE 2ND RESPONDENT HAD CLAIMED ONLY 4 PUBLICATIONS IN THE APPLICATION.

EXHIBIT P9(A) TRUE COPY OF THE REPLY OBTAINED UNDER RTI ACT SHOWING THAT THE 2ND RESPONDENT HAD CLAIMED ONLY 4 PUBLICATIONS IN THE APPLICATION DATED 2.12.2019.

EXHIBIT P10 TRUE COPY OF THE NATIONAL PUBLICATION IN MALAYALAM TRANSLATION.

EXHIBIT P10(A) TRUE COPY OF THE NATIONAL PUBLICATION IN ENGLISH TRANSLATION.

EXHIBIT P11 TRUE COPY OF THE PUBLICATION IN MALAYALAM TRANSLATION.

WP(C) NO. 1861 OF 2020

EXHIBIT P11(A) TRUE COPY OF THE PUBLICATION IN ENGLISH TRANSLATION.

EXHIBIT P12 TRUE COPY OF THE AWARD LETTER ISSUED TO THE PETITIONER FOR DR.S.RADHAKRISHNAN POST DOCTORAL FELLOWSHIP AWARD.

EXHIBIT P13 TRUE COPY OF THE SCORE SHEET FOR THE APPOINTMENT OF ASSISTANT PROFESSORS OF AIDED COLLEGES BASED ON THE UGC 2010 REGULATION 4TH AMENDMENT (2016).

EXHIBIT P14 TRUE COPY OF THE RELEVANT EXTRACTS OF UGC REGULATIONS ON MINIMUM QUALIFICATIONS ISSUED ON 30.06.2010.

EXHIBIT P15 TRUE COPY OF THE CLARIFICATION DATED 3.1.2020.

EXHIBIT P16 TRUE COPY OF THE QUERY OBTAINED UNDER RTI ACT 21.10.2019.

EXHIBIT P16(A) TRUE COPY OF THE REPLY OBTAINED UNDER RTI ACT DATED 19.11.2019.

EXHIBIT P17 TRUE COPY OF THE REPLY OBTAINED UNDER RTI ACT SHOWS THAT THE PH.D OBTAINED IN INTERNATIONAL RELATIONS IS NOT EQUIVALENT FOR PH.D IN PHILOSOPHY DATED 1.12.2019.

EXHIBIT P17(A) TRUE COPY OF THE LETTER DATED 19.12.2019.

EXHIBIT P18 TRUE COPY OF THE QUERY UNDER THE RTI ACT SHOWING THAT SHE WAS GIVEN 2 MARKS FOR AWARD FOR UNDERGOING PROFESSIONAL EXCHANGE IVLP PROGRAMME.

EXHIBIT P18(A) TRUE COPY OF THE REPLY UNDER THE RTI ACT SHOWING THAT SHE WAS GIVEN 2 MARKS FOR AWARD FOR UNDERGOING PROFESSIONAL EXCHANGE IVLP PROGRAMME.

EXHIBIT P19 TRUE COPY OF THE QUERY SUBMITTED BY SRI.AJITH VIJAYAN DATED 14.07.2020.

EXHIBIT P19(a) TRUE COPY OF THE REPLY DATED 24.07.2020 BEARIG NO.AD.AIX/2/RTI/2020 ADMN GIVEN TO EXT.P19