Dr.Razia K.I vs University Of Kerala
2022 Latest Caselaw 2644 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
    THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
                                    &
        THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
  FRIDAY, THE 11TH DAY OF MARCH 2022 / 20TH PHALGUNA, 1943
                        WA NO. 1208 OF 2021
 AGAINST THE JUDGMENT IN WP(C) 13759/2018 OF HIGH COURT OF
                                KERALA
APPELLANT/PETITIONER:

            DR.RAZIA K.I
            ASSOCIATE PROFESSOR, DEPARTMENT OF PHYSICAL
            EDUCATION, MSM COLLEGE, KAYAMKULAM, RESIDING AT
            TC NO.49/453 (5), KALIVEDU, MANAKKAD,
            TRIVANDRUM-695 009
            BY ADVS.
            GEORGE POONTHOTTAM (SR.)
            NISHA GEORGE
            J.VISHNU
            VISHNU B.KURUP
            A.L.NAVANEETH KRISHNAN
RESPONDENTS:

    1       UNIVERSITY OF KERALA
            REPRESENTED BY REGISTRAR, UNIVERSITY BUILDING,
            TRIVANDRUM-695 009
    2       THE REGISTRAR,
            UNIVERSITY OF KERALA, UNIVERSITY BUILDING,
            TRIVANDRUM-695 009
    3       THE VICE CHANCELLOR CONVENER,
            COMMITTEE FOR SELECTION OF ASSISTANT DIRECTOR,
            PHYSICAL EDUCATION, UNIVERSITY BUILDING,
            TRIVANDRUM-695 009
            DR.JAYARAJAN DAVID,
    4       ASSISTANT PROFESSOR, DEPARTMENT OF PHYSICAL
            EDUCATION, COLLEGE OF ENGINEERING,
            TRIVANDRUM-695 009
            BY SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA
            BY SRI.ASHWIN P. JOHN

     THIS    WRIT   APPEAL   HAVING     COME   UP   FOR   ADMISSION   ON
08.03.2022, THE COURT ON 11.03.2022 DELIVERED THE FOLLOWING:
                                                     :2:
WA No.1208 of 2021



                                                                                                    'C.R.'

         A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ
               ------------------------------------------------------------------
                                    WA No.1208 of 2021
                              --------------------------------------------
                        Dated this the 11th day of March, 2022


                                              JUDGMENT

Mohammed Nias.C.P, J.

The unsuccessful petitioner, who challenged the appointment of

the 4th respondent to the post of Assistant Director in the Department of

Physical Education in the University of Kerala on deputation basis,

pursuant to Ext.P1 notification is the appellant. The appellant as well as

the 4th respondent were interviewed on 14.12.2017 by the Selection

Committee. The 4th respondent was selected on the basis of obtaining 1.9

marks more than the writ petitioner. The marks given under the various

heads to the seven candidates who participated in the selection process

are extracted below:-

"Selection to the post of Assistant Director Department of Physical Education, on Deputation Date of Interview : 14th December 2017 Notification No.Ad.Dl.I.DPE/43722/2017 dated 16.08.2017

Sl. Name of the Category Academic Domain Interview Total Rank Remarks No candidate Record and Knowledge Research and Teaching Performance Skills 1 Jayarajan David OBC 30.9 25 18 73.9 I 2 Prasanna 26 25 5 56 Kumaran.K 3 Razia K.J. OBC 42 25 5 72

4 Rose Niex.P.K. 19 25 5 49

5 Sujanesh K.Das OBC 23 12 10 45

6 G.P.Sudheer 45 12 11 68

7 Xavier.G OBC 23.8 25 2 53.8

WA No.1208 of 2021

2. The petitioner questions the selection on the specific

allegation that the academic qualification and experience of the petitioner

was ignored while selecting the 4th respondent and in spite of giving 13

marks more in the interview to the 4 th respondent, there is a difference of

only 1.9 marks more to the 4 th respondent which led to her selection. The

excessive award of marks in the interview according to the petitioner is a

highly arbitrary action. The prescription with regard to the research

publication, paper presentation, academic experience, which ought to have

been the main criteria for the selection going by the norms of the

University Grants Commission (UGC) were all overlooked in the selection

process.

3. The University contended that the Selection Committee was

constituted as per the UGC guidelines and the marks were also awarded as

per the same, and therefore, there is no illegality in the selection and thus

prayed for dismissal of the writ petition.

4. The 4th respondent did not enter appearance despite service

of notice in the writ petition as well as in the writ appeal.

5. The learned Single Judge who considered the matter

dismissed the writ petition on the solitary ground that the appellant having

participated in the selection process was estopped from challenging the

selection process relying on the judgment in D.Saroja Kumari v. R.Helen

Thilakom and Others [(2017) 9 SCC 478].

WA No.1208 of 2021

6. We have heard the learned senior counsel Sri.George

Poonthottam, assisted by Sri.A.L.Navaneeth Krishnan for the appellant and

Sri.Thomas Abraham, the learned standing Counsel for the respondent-

university.

7. Before us, the learned senior counsel for the appellant

submits that the reasoning of the learned Single Judge is wrong in as

much as the challenge to the award of marks in the interview, borne out

from Ext.P7, was not considered at all by the learned Single Judge and a

mere glance of the same would have revealed the favouritism shown to the

4th respondent. When the entire process was vitiated by the arbitrariness

and favouritism, such selection ought to have been interfered with.

Despite the appellant getting more marks under the head for the

academic records and research performance, only due to the excessive

marks for the interview awarded to the 4 th respondent, she was favoured

and selected.

8. The learned counsel for the University reiterated before us

that the selection was conducted in accordance with the UGC guidelines

and no illegality can be attributed to the selection of the 4 th respondent.

No counter affidavit dealing with the allegations raised in the writ petition

has been placed on record.

9. Having considered the rival contentions, we are of the firm

view that the dismissal of the writ petition on the solitary ground of

WA No.1208 of 2021

participating the selection process was clearly wrong and liable to be

interfered with. Simply because the appellant has participated in the

selection process did not mean that the appellant had acquiesced to the

illegality in the selection process. (See DR (Major) Meeta Sahai v. State

of Bihar and Others [(2019) 20 SCC 17]). The petitioner essentially

questioned the award of excessive marks in the interview to the 4 th

respondent, which the appellant could have been aware only after the

selection of the 4th respondent and the same is the cause of action herein

for challenging the selection process. Thus the award of marks without any

basis is a matter which the appellant could have challenged and no

principal of estoppel prevents the appellant from questioning the same.

10. It is trite that the candidate by agreeing to participate in

the selection process only accepts the prescribed procedure and not the

illegalities committed in a selection process. It is also relevant to note that

it cannot be possible for a candidate to have locus to assail an illegality or

an infringement of the provisions of the Constitution that happens in a

selection process unless there is participation in the same.

11. Coming to the merits of the case, we find on a perusal of

the marks extracted above, that the selected candidate has been given highest

marks in the interview viz., 18 out of the maximum of 20 marks. The 4 th

respondent had got only 30.90 marks under the head 'academic record and

research performance' and 25 under the head 'domain knowledge and

teaching skills', thus totalling to 73.9 marks. The appellant was given 42

marks under the head 'academic record and research performance' and 25

WA No.1208 of 2021

marks under the head 'domain knowledge and teaching skills' and just 5

marks for 'interview' and totalling 72 marks. It is worthy to note that the

appellant had at an earlier point of time served in the very post under the

University on deputation and the same is evident from Ext.P4 certificate

granted by the University. Considering the marks awarded to the 4 th

respondent as stated above, we hold that the award of marks under the

head 'interview' was without any basis or rationale and which led to the

wrongful selection. We do so also for the reason that no plausible

explanation is on record from the side of the University.

12. The learned senior counsel for the appellant cites the

judgment in Deepthy Vijayakumar v. Joint Registrar of Co.op

Societies, Thrissur and Others [2008(4) KHC 44] to argue that the facts

would reveal that the interview was conducted in such a manner to favour

the 4th respondent, the manner in marks were given under the head

'interview' would speak for itself and favouritism is to be inferred. As we

have already held, a look at the marks awarded (extracted above) shows

that the 4th respondent was wrongly preferred over the appellant, by giving

higher marks in the interview. Such a selection cannot be upheld and the

action of the University in selecting the 4 th respondent is nothing but

abusing the power conferred on it. We declare the appointment of the 4 th

respondent to be bad for the reasoning stated above. Accordingly we set

aside the same.

13. We note that in several cases where the selection

process is challenged, which is not infrequent, on account of the delay in

WA No.1208 of 2021

adjudicating the merits of the same, it becomes impossible to grant any

worthwhile relief by the time the matter is taken up for final hearing and in

many cases the beneficiary of a wrong selection profit from such delays. A

Litigant should not only get justice but it has to be timely as well which is

required for the continued confidence of the citizenry in the justice delivery

system. Delivering justice has a connection with the time consumed in

rendering justice. When at the appropriate moment the justice is not

rendered what we are administer then is no longer full justice, it may even

be injustice. Prompt justice is true justice.

14. In the light of what is stated above, while setting aside

the selection of the 4 th respondent, we also direct that the petitioner be

appointed forthwith as the Assistant Director in the Department of Physical

Education consequent to Ext.P1 selection process till a regular appointment

to the post of Assistant Director in the Department of Physical Education,

which we are told is underway, is completed. The appellant will be allowed

to function as Assistant Director in the Department of Physical Education

till the new incumbent joins duty after the proposed selection for a regular

appointment. We trust this direction will offer some solace to the appellant

who had to wait for almost four years to get this relief and can enjoy the

fruits of the litigation only for a few days considering that there is a fresh

selection process underway for a regular appointment as Assistant Director

in the Department of Physical Education. Although, we are not happy with

the selection process carried out by the University resulting in the 4 th

respondent becoming the beneficiary of an illegal selection, we refrain from

imposing any costs on the University or from directing the 4 th respondent to

WA No.1208 of 2021

disgorge the benefits obtained by him.

The writ appeal is allowed as above.

Sd/-

A.K.JAYASANKARAN NAMBIAR, JUDGE

Sd/-

MOHAMMED NIAS C.P., JUDGE

dlk 8.3.22