High Court Kerala High Court

Abraham Kuruvilla vs Sree Chitra Tirunal Institute For on 19 August, 2009

Kerala High Court
Abraham Kuruvilla vs Sree Chitra Tirunal Institute For on 19 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 33196 of 2003(B)


1. ABRAHAM KURUVILLA, ASST. PROFESSOR,
                      ...  Petitioner

                        Vs



1. SREE CHITRA TIRUNAL INSTITUTE FOR
                       ...       Respondent

2. DR.N.H. WADIA, FORMER PRESIDENT,

3. DR.K. RADHAKRISHNAN, PROFESSOR AND HEAD

4. DR.J.M.K. MOORTHY, CHIEF OF NEUROLOGY

5. DR. BIMAL FRANCIS, DEPARTMENT OF

6. DR. THOMAS KOSHY, DEPT. OF

7. MRS. G. GEETHA, SCIENTIST, COMPUTER

8. DR.K. SIVAKUMAR, DIVISION OF CELLULAR

9. DR.P. SANKARA SARMA, BIO-STATISTICS,

10. DR. K. MOHANDAS, DIRECTOR AND

11. DR. A.D. DAMODARAN, 'SUDHARMA',

12. THE GOVERNING BODY, SREE CHITRA

13. DR.HARI GOPAL, ADVISOR, DEPARTMENT

14. DR. G.S. BHUVANESWAR, MEMBER,

15. DR. K. SUBRAMONIYA IYER, PROFESSOR &

16. DR. S.K. MAHAJAN, HEAD, MOLECULAR

17. UNION OF INDIA, REPRSENTED BY

                For Petitioner  :SRI.JOSEPH MARKOSE (SR.)

                For Respondent  :SRI.P.PARAMESWARAN NAIR,ASGI.

The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :19/08/2009

 O R D E R
                      T.R. Ramachandran Nair, J.
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                      W.P.(C) No.33196 of 2003-B
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               Dated this the 19th day of August, 2009.

                                 JUDGMENT

In this writ petition the petitioner is aggrieved by Ext.P10 resolution

of the Governing body of the first respondent, whereby the representation

filed by the petitioner challenging the denial of promotion to the post of

Associate Professor, was rejected. The petitioner had approached this court

earlier by filing O.P.No.7338/2000 challenging the decision of the Selection

Committee and the consequent publication of the list prepared by the

Institute. The present writ petition is an off shoot of the resolution taken by

the Governing Body pursuant to the directions issued by this court.

2. The bare facts for the disposal of the writ petition are the

following: At the time of filing of the writ petition, the petitioner was

working as an Assistant Professor in the Department of Neurology. He

joined the first respondent Institute as an Assistant Professor in the year

1994. The further promotion is to the post of Associate Professor. The

relevant scheme for promotion is known as Flexible Complementary

Scheme. Ext.P2 is the order in force which contains the relevant rules for

promotion.

wpc 33196/2003 2

3. Pursuant to Ext.P4 notification, the petitioner submitted an

application with requisite testimonials and self assessment which is

produced as Ext.P5. According to the petitioner, his non selection by the

Staff Selection Committee is vitiated by several illegalities. The

recommendation of the Staff Selection Committee was considered by the

Governing Body on 18.12.1999 and the allegation raised by the petitioner is

that without going into the merits of the matter, they accepted the

recommendation. It is in these circumstances, he approached this court in

the earlier writ petition which was disposed of by Ext.P8 judgment. This

court as per the operative portion of the judgment, directed the Governing

Body to consider the various aspects raised by the petitioner in his

representation and take a fresh decision. It is the case of the petitioner that

the directions issued by this court have not been really implemented by the

Governing Body.

4. The petitioner had challenged that part of the judgment which

denied his promotion, by filing an appeal which stood dismissed and

ultimately that was challenged in a Special Leave Petition before the Apex

Court also. The judgments of the Division Bench and the Apex Court have

been produced as Exts.P11 and P12.

wpc 33196/2003 3

5. Shri Joseph Kodianthara, learned counsel appearing for the

petitioner invited my attention to the findings contained in para 8 of the

judgment, Ext.P8 and contended that the resolution Ext.P10 does not satisfy

the directions issued by this court. It is submitted that the Staff Selection

Committee did not consider the credentials of the petitioner and the

materials produced by him and the Governing Body had merely stamped

their authority on the said decision by the Staff Selection Committee,

without considering any of the materials. Therefore, it is pointed out that

the binding directions issued by this court in Ext.P8 have been given a go-

bye by the Governing Body and hence the entire proceedings issued by the

Governing Body as per Ext.P10 is vitiated by several irregularities.

Therefore, it is submitted that the petitioner is entitled to be promoted as

Associate Professor and a direction has to be issued as such.

6. Shri T.R. Ravi, learned counsel appearing for the first respondent

submitted that the arguments raised by the learned counsel for the petitioner

are not correct. My attention was drawn to the contents of Ext.P10 in

support of the argument. It is also submitted that in the light of the findings

contained in the judgment of the Division Bench, the petitioner cannot be

heard to say that the merits of his claim have not been gone into by the Staff

Selection Committee, as the Division Bench clearly held in para 7 of the

wpc 33196/2003 4

judgment that his claim was duly considered by the Staff Selection

Committee. It is therefore submitted that this court cannot in this

jurisdiction, sit in appeal over the decision of the expert bodies like the first

respondent. The relevant findings contained in the judgment Ext.P12 have

also been brought to my notice.

7. First I will refer to the deficiencies pointed out in Ext.P8

judgment in regard to the proceedings issued against the petitioner. It was

noted in para 5 of the judgment that the decision of the Senior Staff

Selection Committee shows that the petitioner was not recommended for

three reasons, viz. (i) No original research contribution; (ii) Poor

performance in the interview; and (iii) Clinical competence and technical

knowledge did not measure upto expected standards. It was held in para 7

that this court under Article 226 of the Constitution of India, cannot

substitute the decision of the Staff Selection Committee and recommend the

petitioner for promotion. Finally in para 8 the Governing Body was

directed to consider the representation of the petitioner against his non

selection, after affording an opportunity of being heard to the petitioner.

Respondents 3 and 10 therein were directed not to participate in the meeting

of the Governing Body to avoid any charge of bias. In fact, it was made

clear that the Governing Body will be free to take appropriate further

wpc 33196/2003 5

decision including formation of a fresh Selection Committee and re-

assessment of the petitioner in accordance with law, if it is not able to take

a decision objectively on the suitability of the petitioner for upgradation on

the basis of the Minutes and other records of the Selection Committee.

8. In fact, these directions have been strongly relied upon by the

learned counsel for the petitioner to contend that, what was done by the

Governing Body while adopting Ext.P10 is contrary to the above directions.

Emphasis was laid by the learned counsel for the petitioner, to elaborate the

said contention, by relying on para (c) of Ext.P10. Therein, the Governing

Body found that in the case of the petitioner, the first reason given by the

Senior Staff Selection Committee that the candidate had not made any

original research contributions, cannot be faulted. They proceeded further

to state that while assessing the publications of the petitioner, the

Governing Body found that the Staff Selection Committee was justified in

making the above observations and finally they said that they do not find

any reason to interfere with the other two findings recorded by the Staff

Selection Committee as well. The dissenting opinion of another member of

the Governing Body was also relied upon by the learned counsel for the

petitioner.

wpc 33196/2003 6

9. It is the contention of the petitioner that none of the records were

perused by the Staff Selection Committee while arriving at their decision

and the Governing Body was not posited with all the detailed facts and

materials for taking a decision. Therefore, their conclusions are vitiated by

non consideration of the relevant materials, submitted the learned counsel.

It is therefore pointed out that they should have constituted a fresh Staff

Selection Committee, after finding that the proceedings of the Staff

Selection Committee are patently illegal.

10. Shri T.R. Ravi, learned counsel for the first respondent submitted

that to appreciate the above argument, a reading of Exts.P11 and P12

judgments will be profitable. It is submitted that the proceedings of the

Staff Selection Committee have been found proper by the Division Bench as

well as by the Apex Court. Even the decision of the Governing body as per

Ext.P10 was referred to by the Division Bench and the Bench did not find

any infirmity in them. The same is the position as far as the findings of the

Apex Court is also concerned. It is therefore submitted that in the light of

the findings rendered by the Division Bench and the Apex Court, this court

at this stage cannot go back to the findings of the Staff Selection

Committee or the procedure adopted by them to find out whether the

Governing Body has acted properly. It is submitted that when the judgment

wpc 33196/2003 7

of the learned Single Judge has merged with the judgment of the Division

Bench and that of the Apex Court, the observations in the operative portion

of Ext.P8 judgment cannot help the petitioner, as those observations stand

modified by the findings rendered by the Division Bench. Learned counsel

further submitted that a reading of the proceedings of the Governing Body

will show that all those materials relied upon by the petitioner have been

properly considered and therefore there is no failure to obey the directions

issued by this court in the matter.

11. I shall now refer to the findings contained in Ext.P11 judgment of

the Division Bench. After referring to the reasons stated by the Staff

Selection Committee not to recommend the petitioner, in para 7 it was held

thus:

“A perusal of the above shows that the appellant’s claim was duly

considered. However, the Committee had not found him to be upto

the requisite standard.”

After referring to the proceedings of the Governing body, produced as

Ext.P10 here, it was observed in para 13 thus:

“It may be so. Since the appellant has not challenged the order of

the Governing body before us, we are not going into the merits

thereof. We do not wish to make any comment on it. However, it

wpc 33196/2003 8

deserves notice that learned counsel for the appellant has not denied

the factum of rejection of the representation. Thus, it appears that on

consideration of the representation, even the Governing body had

found no reason to differ with the recommendation of the Selection

Committee.”

The Division Bench concluded thus in para 14:

“The selection of a candidate has to be made by the duly constituted

Committee. The High Court cannot examine the matter as a super

Selection board. The scope of judicial review is limited. There is no

suggestion that the Committee was not constituted in conformity with

the Rules. Still further, it is clear from the record that the appellant’s

name was duly considered. It may be that the appellant is better than

what the Committee had found him to be. Equally it is also possible

that the appellant may have an exaggerated view of his own ability.

However, the suitability and merit have to be adjudged by the

competent authority and not by the Court.”

The conclusion laid down by the Division Bench has been more emphatic if

we go to para 15, in which it was held as follows:

wpc 33196/2003 9

“The intervention of the Court can only be in a situation where the

action is per se arbitrary or there is an infraction of law. In the

present case, neither of the two factors exist.”

Thus, the writ appeal was dismissed.

12. The Apex Court, after considering the arguments of the learned

counsel for the petitioner that the petitioner ought to have been directed to

be promoted by the Division Bench, held that the Division Bench assigned

sufficient and cogent reasons for not agreeing with the submissions of the

petitioner.

13. Squarely the above findings bind the petitioner since the

judgments are inter parties. Therefore, there is no scope for drawing the

attention of this court again to the proceedings of the Staff Selection

Committee which was found to be proper by the Division Bench in paras 7

and 14 of the judgment. In fact, no permission had been sought before the

Division Bench or before the Apex Court to challenge the proceedings of

the Governing body. The proceedings of the Governing body were noticed

by the Division Bench and it was concluded that the Governing Body also

did not find any reason to differ with the recommendation of the Staff

Selection Committee.

wpc 33196/2003 10

14. Therefore, in exercise of the power of judicial review, this court

may not be justified in upsetting the resolution of the Governing Body on its

merits. Still, in deference to the arguments made by the learned counsel for

the petitioner, I will refer to the findings rendered by the Governing Body in

Ext.P10. In internal page 2 of Ext.P10, it is recorded that “the Governing

Body called for the records of the Senior Staff Selection Committee which

considered the case of the petitioner, the records relating to the earlier

decision of the Governing Body accepting the recommendations of the

Senior Staff Selection Committee, the papers submitted by the petitioner

before the Selection Committee, the representation of the petitioner and all

other connected papers relating to his assessment period (1994-1998) and

examined the same in detail.” Then the contentions of the petitioner as

contained in the representation are referred to. While referring to the

research materials produced by the petitioner, it is noted by the Governing

Body that some of the materials produced by him did not relate to the

assessment period and those materials were not available to the Staff

Selection Committee at the time of interview. Then they have referred to

the contentions raised by the petitioner regarding bias, etc. and after going

through various proceedings including the comments of the Staff Selection

Committee, the Governing body was of the view that they were satisfied

wpc 33196/2003 11

that the committee members had conducted the interview very fairly. Their

conclusions are recorded in paragraphs a, b, c and d. A specific finding has

been rendered that the allegation of bias against the Head of the Department

of Neurology, cannot be sustained and the Governing Body was of the view

that Dr. Radhakrishnan, could not have influenced the decision of the Staff

Selection Committee. While considering the contention that the selection

procedure was unfair, it was of the view that the said allegation is not fair.

Then they have adverted to the three reasons stated by the Staff Selection

Committee in para (c) and conclusions have been rendered in para (d) also.

The dissenting note of one member of the Governing body was also

recorded. In fact, learned counsel for the petitioner had raised a contention

that no detailed reasons have been stated by the Staff Selection Committee.

While considering the representation of the petitioner, the Governing Body

was of the view that “the details of the deliberations after the interview are

not usually recorded in the proceedings as a practice. Since no comparative

assessment of candidate is required in making the promotions to the post of

Associate Professor under the FCP Scheme as it is a non-vacancy linked

promotion, there is no practice of each member recording marks for various

aspects.” It was also noted by the Governing Body that in the case of

promotions of similar nature, the method followed in other national

wpc 33196/2003 12

institutes are more or less the same. and during the subsequent years also the

same method has been followed.

15. Thus, I am of the view that cogent reasons have been pointed out

by the Governing Body while answering the contentions raised by the

petitioner in the representation. The contention that they have not

considered the materials before the Staff Selection Committee, is plainly not

acceptable. The conclusions are supported by a proper assessment and

there is proper consideration of the materials also.

16. Learned counsel for the petitioner while referring to Ext.P2, had

contended that the eligibility for promotion from the category of Asst.

Professor was made 100% and therefore, promotion ought not have been

denied. In fact, this aspect also has been answered in para 8 of the counter

affidavit filed by the Institute. It is submitted that it is not a 100%

promotion post and reliance is placed on Rule 19 of the FCP Scheme.

Ext.P2 clearly says that the assessment procedure for the purpose of

promotion will continue to be as before by the Senior Selection Committee.

The procedure is made mention of in Rule 19.

17. Thus, it is clear that the curriculum vitae of the petitioner on his

own assessment as well as the relevant materials have been considered by

the Staff Selection Committee and by the Governing Body.

wpc 33196/2003 13

For all the above reasons, I find that the petitioner is not entitled to

succeed in the writ petition and hence the same is dismissed. No costs.

(T.R. Ramachandran Nair, Judge.)

kav/