High Court Kerala High Court

Dr. Cyril Johnson vs The State Of Kerala on 7 October, 2009

Kerala High Court
Dr. Cyril Johnson vs The State Of Kerala on 7 October, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 33661 of 2005(G)


1. DR. CYRIL JOHNSON,
                      ...  Petitioner

                        Vs



1. THE STATE OF KERALA,
                       ...       Respondent

2. UNIVERSITY OF KERALA,

3. THE VICE CHANCELLOR,

4. THE SELECTION COMMITTEE CONSTITUTED FOR

5. M.T. SULEKHA,

                For Petitioner  :SRI.P.C.SASIDHARAN

                For Respondent  :SRI.S.GOPAKUMARAN NAIR, SC KERALA UTY.

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice V.GIRI
The Hon'ble MR. Justice C.T.RAVIKUMAR

 Dated :07/10/2009

 O R D E R
           K.BALAKRISHNAN NAIR, V.GIRI &
                    C.T.RAVIKUMAR, JJ.
            ----------------------------------------
           W.P.(C)Nos.33661 & 35595 of 2005
            ----------------------------------------
         Dated this the 7th day of October, 2009.

                         JUDGMENT

Giri, J.

The point that has been formulated for

consideration of this bench is whether Antony P.A. V.

Krishnadas M.N. {ILR 2007(1) Kerala 244} lays down

the correct legal position concerning the powers of the

selection committee in evolving norms for a selection. The

issue arises in the context of selection to the post of

Controller of Examinations in the Kerala University. The

committee is constituted in terms of the provisions of the

Kerala University First Statutes, 1977 and it should consist of

the Vice Chancellor and two other Syndicate members. The

Controller is to be appointed by the Syndicate of the

University on the recommendation of the selection

committee. The First Statutes also provide for the powers

and duties of the Controller. The Statutes do not specifically

provide for the norms that are to be adopted by the Selection

Committee. The Syndicate also did not lay down the norms.

W.P.(C)Nos.33661 & 35595 of 2005

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Norms were evolved by the selection committee on their own,

apparently in the course of conducting the selection and they

proceeded to select the 4th respondent. Recommendations of

the selection committee were accepted by the Syndicate and

the 4th respondent was appointed as Controller of

Examinations. This has been called in question in these writ

petitions.

2. Learned single Judge, before whom the writ

petition came up for consideration, referred to the stand

taken by the University in their counter affidavit and

observed that the selection committee had evolved their own

norms for the selection. It was observed that the committee

had arrogated to itself the power of framing the norms for

selection. This, the learned Judge observed, was clearly

inconsistent with the law laid down by the Supreme Court in

Dr.Krushna Chandra Sahu and others v. State of Orissa

{1995(6) SCC 1}, wherein the Supreme Court held that the

selection committee does not have the inherent jurisdiction

to lay down the norms for selection, nor can such power be

assumed or inferred by implication. Learned single Judge

W.P.(C)Nos.33661 & 35595 of 2005

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observed that a contrary view has been taken by a bench of

this court in Antony P.A. V. Krishnadas M.N. {ILR 2007

(1) Kerala 244}. The Bench in Antony held that where the

selection committee is statutorily constituted, but the statute

which provides for the constitution of the selection committee

does not, at the same time, lay down any guidelines or norms

to regulate the selection, then the committee is entitled to

evolve its own norms, which have to be fair and reasonable.

In other words, the Division Bench proceeded to uphold the

power of the selection committee to evolve their own norms

in the absence of a specific prescription in that regard in the

statute, which in the first place had provided for the

constitution of the committee. Learned single Judge, after

observing that the dictum in Antony was inconsistent with

the principle laid down in Dr.Krushna Chandra Sahu and

others v. State of Orissa {1995(6) SCC 1}, adjourned the

writ petitions to be heard by a Division Bench. The Division

Bench felt that the matter, requires consideration by a Full

Bench, so as to avoid conflicting decisions by co-ordinate

benches. Accordingly, these cases as such have been

W.P.(C)Nos.33661 & 35595 of 2005

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referred to a Full Bench and essentially the point for

consideration is whether Antony lays down the correct legal

position concerning the powers of the selection committee to

evolve the norms for selection.

3. Reference to the facts in W.P.(C)No.35595/05,

would be comprehensive of W.P.(C)No.33661/05 as well.

4. By Ext.P1 notification dated 25.7.2005, the

University of Kerala invited applications for appointment to

the post of Controller of Examinations. Copy of the said

notification reads as follows:

“The qualifications prescribed are as

follows:

“A first or second class Masters Degree or

equivalent qualification, about 5 years

teaching experience at University level and

about 5 years administrative experience in a

responsible post, including management of

staff in a University or College or Education

Department or similar Institutions (Academic

qualification, age and experience relaxable in

the case of candidates otherwise highly

qualified).”

W.P.(C)Nos.33661 & 35595 of 2005

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5. It seems that 35 persons applied and 21 persons

appeared for the interview. The selection committee

consisted of the Vice Chancellor and two members of the

Syndicate of the University.

6. It is common case that the criteria for selection

are not either prescribed in the statute or otherwise laid down

by the appointing authority viz., Syndicate of the University.

It is also common case that the selection committee did not

evolve the norms or publish the same, prior to the interview.

The selection committee formulated their criteria for selection

on the date of interview. It was further contended that the

4th respondent did not have 5 years administrative

experience. She was also a member of the Syndicate till

26.11.2005, just three days prior to the interview. In fact,

she resigned from the Syndicate vide letter dated

24.11.2005, which was accepted on 26.11.2005. The 4th

respondent was able to influence the constitution of the

selection committee, it is contended by the petitioner.

7. It was further contended by the petitioners that

the criteria for assessing the comparative merits of the

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candidates were formulated by the selection committee only

on 29.11.2005, i.e. the date on which they conducted the

interview. One aspect, which has been pointed out relates to

the awarding of 8 marks to the 4th respondent for guiding

P.Hd students at the rate of 2 marks for each P.Hd students.

But the petitioner in W.P.(C)No.33661/05 was not awarded

any marks for guiding M.Phil Research Scholars. The

petitioner further contends that the selection committee had

erred in awarding equal marks to him as also to the 4th

respondent for administrative experience, since the 4th

respondent had only two years and 6 months period of actual

experience. Two tabular statements have been given by the

petitioner in W.P.(C)No.35595/05 in an attempt to graphically

illustrate the impact of the contention that the selection

committee had formulated norms, on the date of the

interview with the clear intention of facilitating the award of

higher marks in favour of the 4th respondent and

consequently, ensuring her selection. The following is the

statement showing the marks actually awarded to the

petitioner in W.P.(C)No.35595/05 and the 4th respondent.

W.P.(C)Nos.33661 & 35595 of 2005

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Dr.Keshav Mohan Dr.M.T.Sulekha

(Petitioner) (3rd respondent)

Academic qualification 30 30

Addl. Qualification- Ph.D. 10 10

Teaching Experience 10 10

Administrative Experience 7 7

Publication 5 5

For producing Ph.D. – 8

Interview 20 20

Total 82 90

8. If marks were awarded to the petitioner for

guiding M.Phil students and if the 4th respondent is awarded

marks only for the actual administrative experience which she

had acquired, then the statement of marks, according to the

petitioner, would read as follows:

                          Dr.Keshav Mohan       Dr.M.T.Sulekha

                             (Petitioner)       (3rd respondent)

Academic qualification            30                  30

Addl.    Qualification-
Ph.D.                             10                   10

Teaching Experience               10                   10

Administrative
Experience                          7                   2

Publication                         5                   5

For producing Ph.D.               10                   10

Interview                         20                   20

Total                             92                   85

W.P.(C)Nos.33661 & 35595 of 2005

                               :: 8 ::



9. It was inter alia on these premises that the

selection, as such, has been impugned in the writ petition.

10. Similar contentions have been taken up by

another candidate, who had participated in the interview, in

W.P.(C)No.33661/05 as well.

11. Per contra, the University, as also the selected

candidate contend that the selection committee was

constituted by the Syndicate in terms of the provisions of the

Act and the first statutes. The fact that the 4th respondent

was a member of the Syndicate till 24.11.2005 is of no

consequence as she had ceased to be a member on

26.11.2005, well before the interview was actually

conducted. Neither the Act, nor the statutes specifically

provide for any criteria that have to be adopted by the

selection committee, called upon to assess the comparative

merits of the rival candidates, who participate in the selection

to the post of Controller of Examinations. The body is

constituted in terms of the statutes. Since the statutes do

not specifically provide for the criteria and the Syndicate, the

appointing authority also did not lay down the guidelines on

W.P.(C)Nos.33661 & 35595 of 2005

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its own, the selection committee was perfectly competent to

adopt such criteria as are reasonable and fair. The allegation

that the 4th respondent did not have adequate administrative

experience, as prescribed in the notification is also denied. It

was further contended that once the criteria are found to be

fair and reasonable, going by the parameters normally

adopted in cases of judicial review, there is no vitiating factor

in the selection, which would warrant interference by this

court.

12. We heard Mr.N.Sugathan, Mr.P.C.Sasidharan,

learned counsel for the petitioners, Mr.Rajagopalan Nair,

learned counsel for the University and Mr.George

Poonthottam, learned counsel for the 4th respondent, the

selected candidate.

13. As we indicated at the outset, the main issue

that has been posited for consideration by the Full Bench is

whether the selection committee constituted under the

Statutes would be competent to evolve and adopt its own

criteria for assessing the comparative merits of the

candidates. The correctness of the dictum laid down by the

W.P.(C)Nos.33661 & 35595 of 2005

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Division Bench in Antony {ILR 2007(1) Kerala 244} also

comes up for consideration.

14. Before we deal with this main issue, we would

like to refer to the contention raised by the learned counsel

for the petitioners that the selection as such is vitiated since

the 4th respondent was a member of the Syndicate till

26.11.2005 and it was the Syndicate which had constituted

the selection committee. We do not find any force in this

submission. True, the 4th respondent was a member of the

Syndicate. But she had tendered her resignation on

24.11.2005 and it was accepted and the factum relating to

the resignation was also notified on 26.11.2005. The

selection committee had met only on 29.11.2005. There was

no statutory bar which stood in the way of the 4th respondent

appearing before the selection committee or aspiring for the

post of Controller of Examinations. No statutory provision

has been brought to our notice which provides that

membership of the Syndicate will act as a disqualification to

seek appointment under the University.

W.P.(C)Nos.33661 & 35595 of 2005

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15. The fact that the 4th respondent was a member

of the Syndicate when the selection committee was actually

constituted is also of no consequence as such in the facts and

circumstances of the case. The constitution of the selection

committee is governed by the provisions of the University Act

or the First Statutes. The selection committee could not have

been constituted otherwise than in the manner prescribed in

the statute. There are no allegations of any personal bias

against the individual members of the selection committee

and such persons are not eo-nominee parties to the writ

petition as well.

16. We do not find any substance in the

aforementioned contention taken up by the petitioners.

17. The main issue, which has been debated upon,

relates to the competence of the selection committee,

constituted by the Syndicate of the University to evolve its

own norms for the selection. It is appropriate to refer to the

relevant provisions in the statutes at this juncture.

18. Section 9 the University Act provides for the

officers of the University and Controller of Examinations is

W.P.(C)Nos.33661 & 35595 of 2005

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one of the officers so enumerated. Section 13 of the Act

provides that the Controller of Examinations is a whole time

salaried officer appointed in this regard by the Syndicate.

Clause 25 of Chapter II of the Kerala University First

Statutes, 1977 {hereinafter referred to as the “First

Statutes”} provides for the mode of appointment of the

Controller of Examinations. Clause 25(1) being relevant is

extracted hereunder:

“25. Mode of appointment of the Controller of

Examinations: (1) The Controller of

Examinations shall be appointed by the Syndicate

on the recommendation of Selection Committee

consisting of the Vice-Chancellor as Chairman

and two other Syndicate members, for a period

of one year in the first instance. He shall be a

whole time salaried officer of the University and

be appointed by a written order. In case his

appointment has been continued for over a

period of one year, he shall be deemed to be on

probation for a period of one year (Commencing

from the date of is first appointment) within a

continuous period of two years. The written

order of his appointment shall be lodged with the

Vice-Chancellor.”

W.P.(C)Nos.33661 & 35595 of 2005

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19. The qualifications for the post of Controller of

Examinations is prescribed in the schedule to the Kerala

University First Ordinances and it is prescribed as the same

as that of a Registrar. It is this qualification which has been

noted in Ext.P1 notification as well.

20. It cannot be gainsaid that the statutory

provisions which provide for the post of Controller of

Examinations, and that which provides for the method of

appointment to the said post (Clause 25 Chapter II of the

First Statutes) do not lay down the criteria that have to be

adopted by the selection committee while conducting the

selection. It also cannot be gainsaid that in the instant case,

the selection committee evolved their own criteria, without

being guided by either any statutory prescription or any

guidelines laid down by the appointing authority in that

behalf. Such criteria adopted by the selection committee

were not mentioned in the notification. In fact, they were not

even published at any point of time, prior to the interview

held on 29.11.2005. The criteria, as such, adopted by the

selection committee are discernible only from the minutes of

W.P.(C)Nos.33661 & 35595 of 2005

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the selection committee held on 29.11.2005. Those minutes

have been produced as Ext.R2(d), along with the counter

affidavit filed by the University in W.P.(C)No.33661/05. It

would be appropriate to extract the minutes of the meeting of

the selection committee so held on 29.11.2005 in its entirety.

“Minutes of the Meeting of the Selection

Committee constituted to interview candidates

for the post of Controller of Examinations in the

University of Kerala.

                Venue        : VC's Chamber
                Time         : 10.30 AM
                Date         : 29.11.2005

                Members present:

          1. Dr.M.K.Ramachandran Nair,
              Vice-Chancellor.                      Sd/-
          2. Dr.V.P.Mohammed Kunju Metharu,
              Member, Syndicate.                    Sd/-
          3. Dr.Varghese Perayil,
              Member, Syndicate.                    Sd/-

At the outset the Committee discussed

in detail the various aspects to be considered

while considering the applications for the post

of Controller of Examinations and resolved

that:-

1. Weightage at the rate of 25 and 30 be

awarded respectively to candidates

who secured II class and I class in

their PG Exams.

W.P.(C)Nos.33661 & 35595 of 2005

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2. A weightage of 10 marks be awarded

to candidates possessing Ph.D Degree.

3. A weightage of 1 mark be awarded for

each year of teaching experience

subject to a maximum of 10 marks.

4. The weightage for administrative

experience be @ 1 mark for one year

of service subject to a maximum of 10

marks.

5. To award 1 mark for each research

paper/book published limiting the

maximum to 5 marks.

6. To award 2 marks for each Ph.D

produced, the maximum of which is

limited to 10 marks.

And

7. The maximum marks for the interview

be 25 marks, so that the total marks

come to 100.

Also resolved that while awarding

marks for the interview proper weightage be

given for the candidate’s academic excellence,

his/her exposure to and awareness of the

University administrative systems in general

and the University examination systems in

particular and their performance in the

interview.

W.P.(C)Nos.33661 & 35595 of 2005

:: 16 ::

The process of interview commenced

at 11.00 AM. Out of the 35 candidates called for

interview, only 21 candidates appeared before

the Selection Committee.

After assessing the relative merits of

the candidates according to the stipulations

above, the Committee unanimously

recommended that the post of Controller of

Examinations be offered to:-

Dr.M.T.Sulekha,
B21, Abhayam,
Sreerangam Lane,
Sasthamangalam,
Thiruvananthapuram-10.

The whole process of interview came

to an end at 5 PM.”

21. It is also not in dispute that the selection

committee had met for the first time on 29.11.2005 and the

criteria for assessing the merits of the candidates were

apparently evolved by the selection committee on the same

day. It is also not in dispute that the candidates including the

petitioners and the 4th respondent were also interviewed on

29.11.2005. We find it difficult to brand as fanciful, the

W.P.(C)Nos.33661 & 35595 of 2005

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contention that the selection committee decided to select the

4th respondent and then evolved the criteria for assessing the

comparative merits of the candidates. In other words, it is

contended that, after having decided to select the 4th

respondent, the criteria, the adoption of which would justify

her selection, as such, were evolved by the selection

committee. When the selection committee commenced its

proceedings, the curriculum vitae of the candidates were

before it. If it wanted to favour a candidate, norms for

awarding marks could be modulated accordingly. Experience

in teaching and administrative experience are notified

qualifications. If a candidate is having longer experience in

teaching and lesser in administration, he can be superseded

by lowering the rate of marks per year for teaching and

increasing the rate for administrative experience. Ext.P1

notification, which we have already extracted in para 4, does

not mention either about publication of research paper/book

or production of Ph.D, as desirable qualifications or grounds

for preference. Possibility of some candidates not furnishing

those details in their curriculum vitae, as they are not

W.P.(C)Nos.33661 & 35595 of 2005

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relevant in terms of Ext.P1, cannot be ruled out. Thus, the

above two parameters fixed by the Committee are

susceptible to the charge of being tailor-made to suit a

particular candidate. This brings us to the question that has

to be considered by the Full Bench viz., whether the selection

committee, constituted as per the statutory provisions, can

evolve its own norms for conducting the selection?

22. There are two facets to this contention. The

first would arise in cases where the statutory provisions

providing for the constitution of the selection committee by

themselves, also lay down the criteria to be followed by the

selection committee. It has been the consistent view taken

by the Supreme Court that in such cases, the selection

committee has no jurisdiction to either relax any of the

qualifications laid down by the statutory requirements or

follow any method, which is strictly not in terms of the

statutory prescriptions. There is neither power of relaxation

nor the power to vary, available in this regard to the selection

committee [see the decisions in P.K.Ramachandra Iyer v.

Union of India [1984(1) SCC 141], Umesh Chandra

W.P.(C)Nos.33661 & 35595 of 2005

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Shukla v. Union of India [1985(3) SCC 721] and

Durgacharan Misra v. State of Orissa & others [1987(4)

SCC 646]}. Any such action taken by the selection

committee would be clearly ultra vires, thereby vitiating the

selection as such.

23. But, the second facet of the aforementioned

contention arises in cases where the statutory provisions

providing for the constitution of the selection committee are

sub-silentio as regards the criteria to be adopted by the

selection committee, while assessing the comparative merits

of the candidates. It is contended that in the present case,

the provisions of the Act and the first statutes provide for the

constitution of a selection committee. But, they are silent as

regards the criteria to be evolved by the selection committee.

There is no dispute that the Syndicate is the appointing

authority and so constituted by the statutory provisions as

such. The petitioners contend that since the statutory

provisions providing for the constitution of the selection

committee are silent as regards the criteria to be adopted by

the selection committee, subject to the criteria being fair,

W.P.(C)Nos.33661 & 35595 of 2005

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reasonable and transparent, it will be open to the committee

to evolve its own criteria. Is this so?

24. The petitioners rely on the judgment of the

Supreme Court in Dr.Krushna Chandra Sahu {1995(6)

SCC 1} to contend for the position that the selection

committee has no jurisdiction in this regard. The Supreme

Court was, in the said case, concerned with appointment to

the post of Junior Teachers in a College affiliated to the

University. Selection was to be done by a Board constituted

in accordance with the statutory rules framed in that regard.

The criteria or the norms for selection were not statutorily

prescribed. It seems that the members of the selection

board decided to adopt the confidential reports of the

candidates, who were already employed as a Homoeopathic

Medical Officers, as the basis for determining their suitability.

This, the Supreme Court held, was impermissible and was

ultra vires the powers conferred on the selection board.

Paragraphs 32, 33, 34 and 36 of the said judgment contain

the dictum laid down by the Supreme Court in this regard.

They read as follows:

W.P.(C)Nos.33661 & 35595 of 2005

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“32. The members of the Selection Board or for

that matter, any other Selection Committee,

do not have the jurisdiction to lay down the

criteria for selection unless they are

authorised specifically in that regard by the

Rules made under Article 309. It is basically

the function of the rule-making authority to

provide the basis for selection. This Court in

State of A.P. v. V.Sadanandam observed as

under: (SCC PP.583-84, para 17)

‘We are now only left with the

reasoning of the Tribunal that there

is no justification for the

continuance of the old rule and for

personnel belonging to other zones

being transferred on promotion to

offices in other zones. In drawing

such conclusions, the Tribunal has

travelled beyond the limits of its

jurisdiction. We need only point out

that the mode of recruitment and

the category from which the

recruitment to a service should be

made are all matters which are

exclusively within the domain of the

executive. It is not for judicial

bodies to sit in judgment over the

wisdom of the executive in choosing

W.P.(C)Nos.33661 & 35595 of 2005

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the mode of recruitment or the

categories from which the

recruitment should be made as they

are matters of policy decision falling

exclusively within the purview of the

executive.’

34. The Selection Committee does not even have

the inherent jurisdiction to lay down the

norms for selection nor can such power be

assumed by necessary implication. In

P.K.Ramachandra Iyer v. Union of India, it

was observed (SCC PP.180-81, para 44)

‘By necessary inference, there

was no such power in the ASRB to

add to the required qualifications.


                In such power is claimed, it has to

                be explicit and cannot be read by

                necessary    implication    for the

                obvious     reason      that   such

                deviation from the rules is likely

                to     cause      irreparable  and

                irreversible harm.'

35. Similarly, in Umesh Chandra Shukla v. Union

of India, it was observed that the Selection

Committee does not possess any inherent

power to lay down its own standards in

addition to what is prescribed under the

Rules. Both these decisions were followed

W.P.(C)Nos.33661 & 35595 of 2005

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in Durgacharan Misra v. State of Orissa, and

the limitation of the Selection Committee

were pointed out that it had no jurisdiction

to prescribe the minimum marks which a

candidate had to secure at the viva voce.

36. It may be pointed out that rule-making

function under Article 309 is legislative and

not executive as was laid down by this Court

in B.S.Yadav v. State of Haryana. For this

reason also, the Selection Committee or the

Selection Board cannot be held to have

jurisdiction to lay down any standard or

basis for selection as it would amount to

legislating a rule of selection.”

25. After having observed as above, and after

considering the case law on the point, the Supreme Court

held, in paragraph 39 of the judgment, as follows:

“39. On the basis of these decisions, we are

inclined to say that in order to assess the

suitability or real worth of a candidate for

the post of junior teacher in the college,

the basis, namely, the character rolls,

adopted by the Selection Board was wholly

arbitrary besides being without authority

or jurisdiction.”

W.P.(C)Nos.33661 & 35595 of 2005

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26. Thereafter the Government was directed to

suitably amend the rule or issue necessary

administrative/executive instructions laying down the basis

on which the suitability of the candidates shall be determined,

before requiring the Selection Board to hold a fresh selection.

27. The principles in Dr.Krushna Chandra Sahu

{1995(6) SCC 1} were adopted and followed by the

Supreme Court in a later decision also {Secretary, A.P.

Public Service Commission v. B.Swapna, (2005) 4 SCC

154}. Dr.Krushna Chandra Sahu {1995(6) SCC 1}

should have been treated as an authority for the proposition

that a selection committee statutorily constituted has no

authority or jurisdiction to lay down the norms for the

selection. Such norms should be either statutorily prescribed

or in the absence of the same, the norms forming the basis of

the selection could be laid down by the appointing authority

by means of administrative instructions. But, a Bench of this

court in Antony {ILR 2007(1) Kerala 244} took a view

that when a selection committee is statutorily constituted, but

the Statute does not lay down the manner for selection,

W.P.(C)Nos.33661 & 35595 of 2005

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necessarily, the selection committee shall have the authority

to adopt reasonable and fair norms.

28. Antony was concerned with selection to the

post of Section Officer in the Sree Sankaracharya University.

The selection committee was constituted in terms of the

University First Statutes. Qualifications were also prescribed

in the statutes. But the basis for the selection or the criteria

to be followed were not either prescribed in the statute or laid

down by the Syndicate, the appointing authority. Taking note

of these aspects, the Division Bench in Antony in paragraph

27 held as follows:

“Statute 8 of Chapter IV provides that the

recruitment to posts shall be made on the basis

of the recommendations made by a Selection

Committee consisting of Vice Chancellor as

Chairman, Convener of the Standing Committee

of the Syndicate on Staff and the Registrar, who

shall be the Member Secretary of the Committee.

There is no contention from the writ petitioners

that constitution of the Selection Committee was

in any way vitiated. Therefore, the Selection

Committee was competently constituted to

conduct selection. The short listing of the

candidates is provided for in Statute 9. That

W.P.(C)Nos.33661 & 35595 of 2005

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provision did not contain any specific norms

regarding selection except to direct that the

rules of reservation as provided in Rules 14 to

17 of the General Rules in KS & SSR as amended

from time to time shall be followed or that the

University can also set apart certain number of

posts for Special Recruitment confining to the

members of Scheduled Caste and Scheduled

Tribe. At the same time, the Selection

Committee is empowered to prepare a short list

as if 5 candidates are included for one vacancy

notified. Apart from this no norms regarding

selection are provided in the Statute. True, if

the statute provides any norms, the Selection

Committee is bound to follow the said norms. It

cannot vary such norms. When a Selection

Committee is statutorily constituted, but the

Statute which empowers constitution of a

Selection Committee does not give any manner

for selection, necessarily the Selection

Committee shall have to select candidates

following reasonable and fair norms ordinarily to

be followed for selection. When the University is

a statutory creation and comes within the term

State under Article 12 of the Constitution, the

norms so followed shall be fair, just and

reasonable.”

W.P.(C)Nos.33661 & 35595 of 2005

:: 27 ::

29. With regard to the dictum laid down by the

Supreme Court in Dr.Krushna Chandra Sahu {1995(6)

SCC 1}, the Division Bench went on to observe and find that

the selection committee in the case of Antony had not

decided to look into the reports of the erstwhile employer,

about the incumbent concerned, nor had it decided to look

into their confidential reports, as in the case of Dr.Krushna

Chandra Sahu {1995(6) SCC 1}. They only devised a

method of awarding marks to the candidates and for this

purpose, according to the Bench, the method of segmenting

the marks into 5 different segments with certain guidelines

alone had been adopted by the Selection Committee as a

guideline for themselves. The Division Bench thereafter went

on to observe that Dr.Krushna Chandra Sahu {1995(6)

SCC 1}, therefore, cannot have any relevance.

30. Learned counsel for the petitioners contended

that the dictum in Dr.Krushna Chandra Sahu was relatable

to a case where the statute providing for the selection

committee was silent regarding the norms that had to be

adopted by the committee, nor were there any administrative

W.P.(C)Nos.33661 & 35595 of 2005

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instructions issued, so as to lay down guidelines for

conducting the selection. It was in the aforementioned

context, the Supreme Court held in categoric terms that the

norms adopted by the selection committee in the said case

were not only not fair and reasonable, but also without

authority and jurisdiction.

31. We find force in this submission and having

gone through the judgment in Dr.Krushna Chandra Sahu,

as also in Antony, we are of the view that the dictum in

Dr.Krushna Chandra Sahu as regards the power and

authority of the selection committee, did not admit of any

distinguishing feature, as attempted to be delineated by the

Bench in Antony v. Krishnadas. The dictum laid down in

Dr.Krushna Chandra Sahu is squarely applicable to a case

where a statutorily constituted selection committee evolves

and adopts its own guidelines for conducting a selection, on

the premise that there is neither a statutorily prescribed

guideline nor any administrative instructions issued by the

appointing authority in that regard.

W.P.(C)Nos.33661 & 35595 of 2005

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32. If there are no statutory instructions as regards

the criteria to be followed by the selection committee, then it

is open to the appointing authority to lay down administrative

instructions in this regard. But, if there are any

administrative instructions, laying down the guidelines, then

absence of such administrative guidelines or instructions will

not empower the selection committee to lay down its own

norms and then conduct the selection. This, as has been held

in Dr.Krushna Chandra Sahu, would be without jurisdiction

and authority.

33. Mr.Poonthottam placed reliance on the dictum

laid down by the Supreme Court in Dr.J.P.Kulshrestha and

others v. Chancellor, Allahabad University {1980 (3)

SCC 418} to contend that the selection committee has

inherent jurisdiction to adopt criteria, which is fair and

reasonable; in the absence of statutorily prescribed guidelines

in that behalf. We have perused the decision in

Dr.J.P.Kulshrestha. The same dealt with selection to the

post of a reader. The selection committee, in the said case,

was constituted as per the Allahabad University Act and the

W.P.(C)Nos.33661 & 35595 of 2005

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statutes framed therein. The Supreme Court noted that

“there are statutory provisions regulating the functions of

the selection committee”. Ordinances prescribed qualifications

for the appointment of teachers. The Supreme Court made

particular reference to Ordinance No.9 and it is significant to

note the proviso to Ordinance 9(2)(iv), which provides that

the selection committee may relax the qualifications

contained in Clause 3 for the post of reader in the case of

candidate whose total length of service as teachers in the

University is not less than the period required to teach the

maximum of the Lecturer’s Grade and who shall have

established a reputation as teachers. The Supreme Court

then further held in paragraph 5 of the judgment that the

statutory exercise of choosing the best among the applicants

in conformity with the minimum qualifications is done by the

selection committee which recommends to the executive

council its panel. After observing so, the Supreme Court took

note of the fact that though there is no specific legislative

provision regarding the procedure to be adopted by the

selection committee, there can be no doubt that self-created

W.P.(C)Nos.33661 & 35595 of 2005

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rules, flexible and pragmatic, fair and functionally viable, may

well be fashioned by the selection committee. This

observation was made in the context of the fact that the

committee had, in the case, adopted the mode of

interviewing the candidates.

34. The aforementioned observations were made by

the Supreme Court in determining whether the procedure

adopted in the said case by the selection committee was fair

and reasonable. In fact, major portion of the discussion

related to the contention that some of the selected

candidates were not qualified. The point which actually came

up for consideration in Dr.Krushna Chandra Sahu viz.,

whether a statutorily constituted selection committee had the

inherent jurisdiction to evolve its own norms, in the absence

of statutory prescriptions in that regard, was not really

posited for consideration, nor considered in

Dr.J.P.Kulshrestha by the Supreme Court. That the proviso

to Ordinance 9(2)(iv), as mentioned above, even conferred

power on the selection committee to relax the qualifications

mentioned in Clause 9(2)(iii), is also noteworthy.

W.P.(C)Nos.33661 & 35595 of 2005

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35. Mr.Poonthottam further contended that the

Supreme Court had considered the aspect regarding the

jurisdiction of the Selection Committee to evolve its own

norms in K.K.Parmar and others v. High Court of Gujarat

Through Registrar and others {2006(5) SCC 789}. In

Parmar, the Supreme Court was concerned with the

challenge to the promotion to the post of Section Officers in

the High Court of Gujarat. The rules regulating the

recruitment and conditions of service of the staff were framed

by the Chief Justice. Rule 47(2)(a) of the Rules specifically

provided that promotion to the post of Section Officer from

Assistant will be effected strictly on consideration of efficiency

and proof of merits. Merit was to be determined on the basis

of the past performance and performance of the written and

oral examination to be held by the selection committee, as

may be appointed by the Chief Justice. One of the grounds of

challenge made by the writ petitioners before the High Court

was that the selection committee had not followed Sub-Rule

(2) of Rule 47 of the Rules. The challenge was upheld by the

learned single Judge. The Supreme Court referred to Rule 47

W.P.(C)Nos.33661 & 35595 of 2005

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(2) of the Rules and observed that the rules provide for the

mode and manner in which the merit should be determined

and found that past performance and performance in the

written test and performance in the oral test were to be

considered by the selection committee. It was further found

that the High Court or for that matter, the selection

committee could not have ignored the mandate of the Rules.

Thereafter it was observed in paragraph 25 of the judgment,

as follows:

“25. Sub-rule (2) of Rule 47 of the Rules

specifies the mode and manner in which

respective merit of the candidate is to be

determined. The High Court or for that matter the

Selection Committee could not have ignored the

same. In any event, it was for the members of the

Selection Committee, in absence of any marks

having been allotted under the Rules for judging

the past performance of the candidates, to devise

a mode therefor. The candidates had no say in

the matter. Annual confidential reports of the

employees concerned must have been placed

before the Selection Committee with a view to

W.P.(C)Nos.33661 & 35595 of 2005

:: 34 ::

enable it to prepare a select list. If they had not

adopted any criteria in that regard, the employees

concerned cannot be blamed therefor.”

36. The observation that it was for the members of

the selection committee to have devised a mode for judging

the past performance of the candidate was made in the

context of the fact that the rules had provided the mode and

manner in which merits should have been determined and

past performance was one of the criteria that was laid down

by the rules itself. Apparently, past performance was kept

out of consideration by the selection committee and it was in

this context, the aforementioned observations were made by

the Supreme Court. It is also significant to note that

Dr.Krushna Chandra Sahu was not considered by the

Supreme Court in Parmar’s case.

37. Parmar was, therefore, a case where there

was a statutory prescription providing the mode and manner

in which merit had to be assessed by the selection

committee. In fact, Parmar in one sense supports the view in

Dr.Krushna Chandra Sahu. If the statute provides the

W.P.(C)Nos.33661 & 35595 of 2005

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mode and manner in which merit is to be assessed by the

selection committee, the committee cannot deviate from the

same. At any rate, Parmar does not take a view different

from Dr.Krushna Chandra Sahu.

38. Mr.Poonthottam referred to two other

judgments in Inderjeet Khurana v. State of Haryana and

others {2007(3) SCC 102} and M.V.Thimmaiah and

others v. Union Public Service Commission and others

{2008(2) SCC 119}. We are afraid that these two

decisions have no application to the present case.

39. Since we have undertaken an elaborate

discussion, we consider it appropriate to encapsulate our

conclusions:

(1) The selection committee, which has

been statutorily constituted, should

follow the norms for assessing the

merit of rival candidates, if such

norms are laid down in the statute.

The selection committee has no

jurisdiction or authority to either

relax any of the norms or vary the

same.

W.P.(C)Nos.33661 & 35595 of 2005

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(2) If the statute which provides for the

constitution of the selection

committee does not provide for the

norms for the selection committee,

then it is open to the appointing

authority to lay down instructions

and guidelines providing for such

norms. In such a case, the selection

committee is bound to follow such

administrative instructions in

conducting selection.

(3) In cases where the norms

governing the selection are not laid

down either in the statutory

provisions or in administrative

instructions, the selection

committee constituted to conduct

selection would not have any

inherent jurisdiction or authority to

evolve its own norms for conducting

the selection. If it evolves its own

norms, then its action will be

without authority and jurisdiction

and selection would be vitiated.

(4) The dictum laid in Antony P.A. V.

Krishnadas M.N. {ILR 2007(1)

Kerala 244}, which upholds the

W.P.(C)Nos.33661 & 35595 of 2005

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contrary position does not lay down

the correct law and it is hereby

overruled.

For all these reasons, we are of the view that the

petitioners are entitled to succeed. It is declared that the

proceedings of the selection committee constituted by the

Syndicate of the Kerala University for conducting selection to

the post of Controller of Examinations in the University of

Kerala, held on 29.11.2005, as evidenced by Ext.R2(d)

produced in W.P.(C)No.33661/05 are illegal and vitiated. So

also the selection and consequent appointment of the 4th

respondent as Controller of Examinations of the University of

Kerala, are declared to be illegal. We have not gone into the

question as to whether the 4th respondent possesses the

requisite administrative experience for selection to the post of

Controller of Examinations and that question is left open for

consideration of the selection committee. The Syndicate of

the University shall within one month from the date of receipt

of a copy of this judgment, evolve the norms for selection to

the post of Controller of Examinations and such norms shall

govern – award of marks for academic qualifications and

W.P.(C)Nos.33661 & 35595 of 2005

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experience – as they are the only qualifications, notified for

selection. For example; if a candidate has only the minimum

marks necessary for second class and another has first class

with 90% marks, the latter has to be awarded higher marks.

Same should be the case for experience also. A fresh

selection to the post of Controller of Examinations from

among the candidates, who applied pursuant to Ext.P1 shall

be conducted, as early as possible, and shall be completed at

any rate, within two months from the date of receipt of a

copy of this judgment. Needless to say, qualifications on the

last date for receipt of application as per Ext.P1 alone are

relevant.

Writ petitions are allowed as above.

Sd/-

(K.BALAKRISHNAN NAIR)
JUDGE

Sd/-

(V.GIRI)
JUDGE

Sd/-

(C.T.RAVIKUMAR)
JUDGE
sk/
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