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/