Kerala High Court
Ashitha. R.K vs State Of Kerala on 10 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 10TH DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944
WA NO. 1430 OF 2022
AGAINST THE JUDGMENT DATED 22.06.2022 IN WP(C) 24642/2020
OF HIGH COURT OF KERALA
APPELLANT/PETITIONER IN W.P.(c):
ASHITHA. R.K,
AGED 36 YEARS, D/O RAJAN, RESIDING AT
VIASHNAVAM, 8, GARAGE WARD,
THIRUVANANANTHAPURAM-695 018.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
NISHA GEORGE
RESPONDENTS/RESPONDENTS IN W.P.(C):
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF
HIGHER EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY, ERNAKULAM DISTRICT-683 574, REPRESENTED
BY ITS REGISTRAR.
3 THE CHANCELLOR,
SREE SANKARACHAARYA UNIVERSITY OF SANSKRIT,
KERALA RAJ BHAVAN, KERALA GOVERNORS CAMP P.O.
THIRUVANANTHAPURAM-695 009.
4 THE VICE CHANCELLOR,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY, ERNAKULAM DISTRICT-683 574.
WA No.1430 of 2022 2
5 THE REGISTRAR,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY, ERNAKULAM DISTRICT-683 574.
6 THE UNIVERSITY GRANTS COMMISSION(UGC),
BAHADUR SHAH ZAFAR MARG, NEW DELHI-110 002,
REPRESENTED BY ITS CHAIRMAN
7 DR. SHARMILA,
AGED 49 YEARS, W/O. C. PADMARAJAN, ASSISTANT
PROFESSOR OF PHILOSOPHY, SREE SANKARACHARYA
UNIVERSITY OF SANSKRIT, KALADY, ERNAKULAM
DISTRICT-683574, RESIDING AT PE4, RIVER WALK
VILLA, VENNALA P.O., KOCHI-682028
8 DR.NIDHEESH KANNAN B.,
ASSISTANT PROFESSOR, DEPARTMENT OF SANSKRIT
GENERAL, SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT, KALADY, ERNAKULAM DISTRICT-683574.
9 DR. SIVAJA S. NAIR,
ASSISTANT PROFESSOR, DEPARTMENT OF SANSKRIT
GENERAL, SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT, KALADY, ERNAKULAM DISTRICT-683574.
10 DR. ASHRAF M.,
ASSISTANT PROFESSOR, DEPARTMENT OF SANSKRIT
GENERAL, SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT, KALADY, ERNAKULAM DISTRICT-683574.
11 DR. SUJAIKUMAR C.K.,
ASSISTANT PROFESSOR, DEPARTMENT OF SANSKRIT
GENERAL, SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT, KALADY, ERNAKULAM DISTRICT-683574.
12 DR. ATHIRA JADADEVAN,
ASSISTANT PROFESSOR, DEPARTMENT OF SANSKRIT
GENERAL, SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT, KALADY, ERNAKULAM DISTRICT-683574.
13 DR. SANGEETHA THIRUVAL P.P.,
ASSISTANT PROFESSOR, DEPARTMENT OF MALAYALAM,
SREE SANKARACHARYA UNIVERSITY OF SA KALADY,
ERNAKULAM DISTRICT
WA No.1430 of 2022 3
14 DR. NINITHA R.,
ASSISTANT PROFESSOR, DEPARTMENT OF MALAYALAM,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY, ERNAKULAM DISTRICT-683574.
15 DR. A.S. PRATHEESH,
ASSISTANT PROFESSOR, DEPARTMENT OF MALAYALAM,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY, ERNAKULAM DISTRICT-683574.
16 DR. SHEEJA R.S,
ASSISTANT PROFESSOR, DEPARTMENT OF MALAYALAM,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY, ERNAKULAM DISTRICT-683574.
17 DR. M.C. ABDUL NAZAR,
ASSOCIATE PROFESSOR, DEPARTMENT OF MALAYALAM,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY, ERNAKULAM DISTRICT-683574.
18 DR. SELVAMONY K.B.,
ASSOCIATE PROFESSOR, DEPARTMENT OF MALAYALAM,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY, ERNAKULAM DISTRICT-683574.
19 DR. ABHILASH MALAYIL,
ASSISTANT PROFESSOR, DEPARTMENT OF HISTORY, SREE
SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY,
ERNAKULAM DISTRICT-683574.
20 SHEFI A.E.,
ASSISTANT PROFESSOR, DEPARTMENT OF HISTORY, SREE
SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY,
ERNAKULAM DISTRICT-683574.
21 DR. SHEETHAL S. KUMAR,
ASSISTANT PROFESSOR, DEPARTMENT OF SOCIOLOGY,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY, ERNAKULAM DISTRICT-683574.
22 DR. SANDHYA ARAVIND C.A.,
ASSISTANT PROFESSOR, DEPARTMENT OF PSYCHOLOGY,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY, ERNAKULAM DISTRICT-683574.
WA No.1430 of 2022 4
23 DR. K. ABDUL RASHEED,
ASSISTANT PROFESSOR, DEPARTMENT OF SANSKRIT
VYAKARANA, SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT, KALADY, ERNAKULAM DISTRICT-683574.
24 DR. RETHY T.S.,
ASSISTANT PROFESSOR, DEPARTMENT OF SANSKRIT
VYAKARANA, SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT, KALADY, ERNAKULAM DISTRICT-683574.
25 DR. ABDULLA SHA R.,
ASSISTANT PROFESSOR, DEPARTMENT OF SANSKRIT
VYAKARANA, SREE SANKARACHARYA UNIVERSITY OF
SANSKRIT, KALADY, ERNAKULAM DISTRICT-683574.
26 ADDL. DR. KHAMARUNNISA K.,
ASSISTANT PROFESSOR, DEPARTMENT OF URDU, SREE
SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY,
ERNAKULAM DISTRICT-683574,
27 DR.KAVITHA
KURUVATH HOUSE, NEAR RAILWAY STATION, CHALAKUDY
WEST P.O., THRISSUR 680 307.
28 DR.REJITHA C.,
AGED 45 YEARS, D/O. CHELLAMMA,
KUTTIYIL PARAPPURATH, THAMARAKKULAM P.O.,
ALAPPUZHA 690530.
29 DR.RADHAKRISHNAN.S.,
AGED 38 YEARS, S/O.SIVAN C, MALAYIL HOUSE,
CHOONDAL POST, GURUVAYUR, VIA, THRISSUR 680502.
ADV.K.GOPALAKRISHNA KURUPP AG
ADV.S.GOPAKUMARAN NAIR (SR.)
ADV.S.KRISHNAMOORTHY, CGC
ADV.S.PRASANTH, SC, CHANCELLOR OF UNIVERSITIES
OF KERALA
ADV.T.B.HOOD, SPL.G.P. TO A.G.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
10.02.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WA No.1430 of 2022 5
P.B.SURESH KUMAR & SOPHY THOMAS, JJ.
-----------------------------------------------
Writ Appeal No.1430 of 2022
-----------------------------------------------
Dated this the 10th day of February, 2023
JUDGMENT
P.B.Suresh Kumar, J.
This appeal is directed against the judgment dated
22.6.2022 in W.P.(C) No.24642 of 2020. The appellant is the
petitioner in the writ petition. The matter relates to the selection
pursuant to Ext.P1 notification for appointment to the post of
Assistant Professor in Sree Sankaracharya University of Sanskrit (the
University).
2. In terms of Ext.P1 notification, the University invited
applications for appointment to the post of Assistant Professor in
various subjects. The appellant was an applicant for appointment to
the post of Assistant Professor in Sanskrit (Nyaya) pursuant to Ext.P1
notification. As far as the said post is concerned, it was provided in
the notification that there are four vacancies, of which one is
reserved for candidates belonging to Ezhava community, one is
reserved for Scheduled Castes and the remaining two are intended
for open competition candidates. As per Section 32 of the Sree
Sankaracharya University Act, 1994 (the Act), while making
appointments to teaching posts, the University is bound to observe,
mutatis mutandis, the provisions of clauses (a), (b) and (c) of Rule
14 and the provisions of Rules, 15, 16, 17 and 17A of the Kerala
State and Subordinate Service Rules, 1958, treating all the
departments of the University as a single unit. Earlier, the rules of
reservation and communal rotation were being applied in the
University department-wise and it is by virtue of an amendment
made to Section 32 of the Act in terms of Act 26 of 2014, the Rules
of reservation and communal rotation are now being applied
category-wise treating all departments of the University as one unit.
The appellant is a candidate entitled to reservation in terms of the
provisions contained in the Kerala State and Subordinate Service
Rules, 1958. According to the appellant, the amendment introduced
to Section 32 of the Act in order to apply the Rules of reservation
and communal rotation category-wise treating all the departments of
the University as one unit, is against the mandate of communal
reservation envisaged in the Constitution.
3. The selection pursuant to Ext.P1 notification was as
provided for in the UGC Regulations on Minimum Qualifications for
appointment of Teachers and Other Academic Staff in Universities
and Colleges and Measures for the Maintenance of Standards in
Higher Education, 2018 (the UGC Regulations). As per the UGC
Regulations, as far as the selection for appointment to the post of
Assistant Professor is concerned, the candidates are required to be
shortlisted based on their academic excellence as prescribed in
Table 3A of Appendix II of the UGC Regulations. The Note appended
to Regulation 4.1.I of the UGC Regulations dealing with Assistant
Professors provides that the academic score as specified in Table 3A
of Appendix II for Universities shall be considered for short-listing of
the candidates for interview and the selections shall be based only
on the performance in the interview. Table 3A of Appendix II clarifies
that the number of candidates to be called for interview shall be
decided by the concerned Universities. According to the appellant,
the Note appended to Regulation 4.1.I of the UGC Regulations is
unconstitutional inasmuch as it provides for selection solely based
on the performance in the interview.
4. The writ petition, in the circumstances, was
instituted challenging Section 32 of the Act as amended by Act 26
of 2014 as also the Note appended to Clause 4.1.I of the UGC
Regulations as violative of the fundamental rights guaranteed to the
appellant under Articles 16(1) and 16(4) of the Constitution. She has
also challenged the selection process pursuant to Ext.P1 notification
on that basis.
5. The University filed a counter affidavit in the writ
petition, stating, among others that it has fixed 55 marks as index
mark for candidates belonging to Scheduled Castes and Scheduled
Tribes and 60 marks as index mark for others for selection for
appointment to the post of Assistant Professor and only those who
have secured the index mark as has been fixed, were invited for
interview, after the process of short-listing. It is also stated by the
University in the counter affidavit that the appellant has scored only
42 marks in the short-listing process and was therefore, not qualified
to be called for interview and she was accordingly not called for
interview.
6. The learned Single Judge took the view that insofar as
the appellant does not question her exclusion from the short-list, the
contentions raised by her in the writ petition are all merely academic
and consequently, dismissed the writ petition without going into the
merits of the contentions. The appellant is aggrieved by the said
decision of the learned Single Judge.
7. Heard the learned Senior Counsel for the appellant
and the learned Advocate General who appeared for the University.
8. Placing reliance on the decisions of the Apex Court in
Lila Dhar v. State of Rajasthan, (1981) 4 SCC 159 , Ajay Hasia
v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 and Ashok Kumar
Yadav v. State of Haryana, (1985) 4 SCC 417, the learned Senior
Counsel for the appellant contended that the Note appended to
Regulation 4.1.I of the UGC Regulations making the selection for
appointment to the post of Assistant Professor solely based on the
performance of candidates in the interview, is bad in law. According
to the learned Senior Counsel, a selection process for appointment
without reckoning the academic scores of the candidates, that too,
to a teaching post, is wholly arbitrary and unreasonable. The
learned Senior Counsel, thereupon, made elaborate submissions in
support of his contention that Section 32 of the Act inasmuch as it
provides that the Rules of reservation and communal rotation shall
be applied category-wise, treating all the departments of the
University as one single unit, is unconstitutional. He conceded that
the issue has been considered by a Division Bench of this court in
State of Kerala v. G. Radhakrishna Pillai, 2022 (1) KLT 253 and
the challenge against the amended Section 32 was repelled.
Nevertheless, he argued based on a large number of decisions of
this Court as also the Apex Court that the decision of the Division
Bench in G. Radhakrishna Pillai needs be reconsidered.
9. Per contra, the learned Advocate General submitted
that inasmuch as the appellant does not have a case that short-
listing of candidates is impermissible in a selection process and does
not challenge the manner provided for in Table 3A in Appendix II to
the UGC Regulations for short-listing of candidates for selection for
appointment to the post of Assistant Professor, it is unnecessary for
this Court to examine the sustainability or otherwise of the challenge
made by her against the Note appended to Regulation 4.1.I of the
UGC Regulations, for even if this Court sustains the challenge, no
relief could be granted to the appellant. Even while contending that
it is unnecessary for this Court to examine the sustainability or
otherwise of the challenge against the Note Appended to Regulation
4.1.I of the UGC Regulations, it was argued by the learned Advocate
General that a selection process solely based on interview is not
illegal and the various decisions cited by the learned Senior Counsel
for the appellant to establish the contrary, cannot have any
application to a selection process solely based on interview. The
learned Advocate General relied on the decision of the Apex Court in
Kiran Gupta v. State of U.P. and Others, (2000) 7 SCC 719, in
support of the said proposition. It was also contended by the learned
Advocate General that inasmuch as the appellant has not secured
the index mark fixed to be called for interview, it is unnecessary for
this Court to examine the challenge made by the appellant against
Section 32 of the Act also, as the same would be a futile exercise not
beneficial to the appellant in any manner. The learned Advocate
General has relied on the decision of the Apex Court in K.I.
Shephard v. Union of India, (1987) 4 SCC 431, in support of the
said contention.
10. We have examined the contentions advanced by the
learned counsel for the parties on either side.
11. It is by now settled that a person who brings a
petition even for invocation of a fundamental right must be a person
having some direct or indirect interest in the outcome of the petition
[See Kishore Samrite v. State of Uttar Pradesh and Others,
(2013) 2 SCC 398]. As such, a person shall have no locus standi
generally to file a writ petition, unless he/she is personally affected
by the impugned order or his/her fundamental rights have been
directly or substantially invaded or there is an imminent danger of
such rights being invaded. It is all the more so since the relief under
Article 226 of the Constitution is based on the existence of a right in
favour of the person invoking the jurisdiction, and the exceptions to
the general rule are only in cases where the writ applied is a writ of
habeas corpus or quo warranto or filed in public interest. Even in
cases filed in public interest, the court can exercise the writ
jurisdiction at the instance of a third party only when it is shown that
determined class of persons are, by reason of poverty, helplessness,
disability, or social and economic backwardness, unable to approach
the court for relief [See Vinoy Kumar v. State of U.P. And
Others, (2001) 4 SCC 734]. The case of the appellant needs to be
examined in light of the aforesaid principles as regards the locus
standi to institute writ petitions.
12. It is now trite that if an employer fixes a cut-off
position for conducting a selection for appointment, the same cannot
be tinkered with by courts, unless it is totally irrational or tainted
with malafides. As argued by the learned Advocate General, the
appellant does not rightly challenge the short-listing of candidates
made by the University based on their academic score as provided
for in Table 3A of Appendix II of the UGC Regulations. If that be so,
even if the challenge made by the appellant against the Note
appended to Regulation 4.1.I of the UGC Regulations is sustained, no
relief could be granted to her, as she had not passed the stage of
being short-listed to subject herself to the process of selection.
According to us, inasmuch as an adjudication on the question as to
the sustainability or otherwise of the Note appended to Regulation
4.1.I of the UGC Regulations does not benefit the appellant in any
manner, she does not have the locus standi to challenge the said
Note and it is, therefore, unnecessary for this Court to consider the
sustainability or otherwise of the challenge against the Note. Even
otherwise, as rightly pointed out by the learned Advocate General,
there is absolutely no basis for the contention that there cannot be a
selection process solely based on the performance in the interview.
In a given case, where short-listing of candidates is made objectively
based on academic credentials of the applicants for selection, we do
not find any illegality in conducting the selection based on the
performance of the short-listed candidates in the interview alone,
especially in a case of the instant nature, where the academic
credentials are reckoned objectively for short-listing the applicants.
In this context, it is worth referring to the decision of the Apex Court
in Kiran Gupta which has been rendered after referring to all the
judgments of the Apex Court cited by the learned Senior Counsel for
the appellant. Paragraph 22 of the judgment in Kiran Gupta reads
thus :
22. It is difficult to accept the omnibus contention that selection on
the basis of viva voce only is arbitrary and illegal and that since
allocation of 15% marks for interview was held to be arbitrary by
this Court, selections solely based on interview is a fortiori illegal. It
will be useful to bear in mind that there is no rule of thumb with
regard to allotment of percentage of marks for interview. It
depends on several factors and the question of permissible
percentage of marks for an interview-test has to be decided on the
facts of each case. However, the decisions of this Court with regard
to reasonableness of percentage of marks allotted for interview in
cases of admission to educational institutions/schools will not
afford a proper guidance in determining the permissible
percentage of marks for interview in cases of
selection/appointment to the posts in various services. Even in this
class, there may be two categories: (i) when the selection is by
both a written test and viva voce; and (ii) by viva voce alone. The
courts have frowned upon prescribing higher percentage of marks
for interview when selection is on the basis of both oral interview
and a written test. But, where oral interview alone has been the
criteria for selection/appointment/promotion to any posts in senior
positions the question of higher percentage of marks for interview
does not arise. Therefore, we think it an exercise in futility to
discuss these cases -- Minor A. Peeriakaruppan v. State of T.N.
[(1971) 1 SCC 38] and Ajay Hasia v. Khalid Mujib Sehravardi
[(1981) 1 SCC 722 : 1981 SCC (L&S) 258] -- relied upon by Mr
Goswami, which deal with admission to educational
institutions/schools and also cases where prescribed method of
recruitment was written test followed by an interview -- Ashok
Kumar Yadav v. State of Haryana [(1985) 4 SCC 417 : 1986 SCC
(L&S) 88] ; D.V. Bakshi v. Union of India [(1993) 3 SCC 663 : 1993
SCC (L&S) 991 : (1993) 25 ATC 206] and Krishan Yadav v. State of
Haryana [(1994) 4 SCC 165 : 1994 SCC (L&S) 937 : (1994) 27 ATC
547] .
In light of the said judgment, even assuming that the appellant is
entitled to challenge the Note appended to Regulation 4.1.I of the
UGC Regulations, the challenge cannot be sustained. Similar is the
situation as regards the challenge made by the appellant against
Section 32 of the Act as amended by Act 26 of 2014. As the
appellant will not be benefitted in any manner on account of the
adjudication of the challenge raised against the said statutory
provision, it is unnecessary for us to make any endeavour to
examine the sustainability or otherwise of the challenge against the
said statutory provision. We are fortified in this view also by the
decision of the Apex Court in K.I. Shephard, wherein it was held
by the Apex Court that the Court should not enter into constitutional
issues, unless it is really necessary for the disposal of the dispute.
In the circumstances, there is no merit in the writ appeal
and the same is, accordingly, dismissed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
SOPHY THOMAS, JUDGE.
YKB
APPENDIX OF WA 1430/2022
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE MINUTES OF THE
SELECTION COMMITTEE HELD ON 02.11.2020
11 AM AT SYNDICATE HALL.
ANNEXURE A2 TRUE COPY OF THE RTI APPLICATION DATED
05.02.2021 SUBMITTED TO THE PUBLIC
INFORMATION OFFICER OF THE RESPONDENT
UNIVERSITY.
ANNEXURE A3 TRUE COPY OF THE REPLY TO ANNEXURE-A2
APPLICATION BEARING NO. PIO/ ADMN/33-
21/SSUS/2021 DATED 15.03.2021 ISSUED BY
THE PUBLIC INFORMATION OFFICER OF THE
RESPONDENT UNIVERSITY.
ANNEXURE A4 TRUE COPY OF THE COMPLAINT SUBMITTED BY
ONE OF THE MEMBERS OF THE SCREENING
COMMITTEE BEFORE THE HON'BLE CHANCELLOR
DATED 06.06.2021.
ANNEXURE A5 TRUE COPY OF THE AUDIT ENQUIRY NO.
KSA/SSU/AO2/72/2022 DATED 13.07.2022
ISSUED BY THE JOINT DIRECTOR.
