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.
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W.P.(C)Nos.33661 & 35595 of 2005
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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.
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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
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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
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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).”
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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.
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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
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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
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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
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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.
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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
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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.”
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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
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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.
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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.
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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
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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
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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
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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,
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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:
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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
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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
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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.”
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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,
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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
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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.”
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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
:: 29 ::
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
:: 31 ::
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
:: 35 ::
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
:: 36 ::
(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
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:: 37 ::
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/
//true copy//