{"id":67772,"date":"2009-08-19T00:00:00","date_gmt":"2009-08-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abraham-kuruvilla-vs-sree-chitra-tirunal-institute-for-on-19-august-2009"},"modified":"2017-05-31T12:49:26","modified_gmt":"2017-05-31T07:19:26","slug":"abraham-kuruvilla-vs-sree-chitra-tirunal-institute-for-on-19-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abraham-kuruvilla-vs-sree-chitra-tirunal-institute-for-on-19-august-2009","title":{"rendered":"Abraham Kuruvilla vs Sree Chitra Tirunal Institute For on 19 August, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Abraham Kuruvilla vs Sree Chitra Tirunal Institute For on 19 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 33196 of 2003(B)\n\n\n1. ABRAHAM KURUVILLA, ASST. PROFESSOR,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. SREE CHITRA TIRUNAL INSTITUTE FOR\n                       ...       Respondent\n\n2. DR.N.H. WADIA, FORMER PRESIDENT,\n\n3. DR.K. RADHAKRISHNAN, PROFESSOR AND HEAD\n\n4. DR.J.M.K. MOORTHY, CHIEF OF NEUROLOGY\n\n5. DR. BIMAL FRANCIS, DEPARTMENT OF\n\n6. DR. THOMAS KOSHY, DEPT. OF\n\n7. MRS. G. GEETHA, SCIENTIST, COMPUTER\n\n8. DR.K. SIVAKUMAR, DIVISION OF CELLULAR\n\n9. DR.P. SANKARA SARMA, BIO-STATISTICS,\n\n10. DR. K. MOHANDAS, DIRECTOR AND\n\n11. DR. A.D. DAMODARAN, 'SUDHARMA',\n\n12. THE GOVERNING BODY, SREE CHITRA\n\n13. DR.HARI GOPAL, ADVISOR, DEPARTMENT\n\n14. DR. G.S. BHUVANESWAR, MEMBER,\n\n15. DR. K. SUBRAMONIYA IYER, PROFESSOR &\n\n16. DR. S.K. MAHAJAN, HEAD, MOLECULAR\n\n17. UNION OF INDIA, REPRSENTED BY\n\n                For Petitioner  :SRI.JOSEPH MARKOSE (SR.)\n\n                For Respondent  :SRI.P.PARAMESWARAN NAIR,ASGI.\n\nThe Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR\n\n Dated :19\/08\/2009\n\n O R D E R\n                      T.R. Ramachandran Nair, J.\n                   - - - - - - - - - - - - - - - - - - - - - - - -\n                      W.P.(C) No.33196 of 2003-B\n                   - - - - -- - - - - - - - - - - - - - - - - - - - -\n               Dated this the 19th day of August, 2009.\n\n                                 JUDGMENT\n<\/pre>\n
      In this writ petition the petitioner is aggrieved by Ext.P10 resolution<\/p>\n
of the Governing body of the first respondent, whereby the representation<\/p>\n
filed by the petitioner challenging the denial of promotion to the post of<\/p>\n
Associate Professor, was rejected. The petitioner had approached this court<\/p>\n
earlier by filing O.P.No.7338\/2000 challenging the decision of the Selection<\/p>\n
Committee and the consequent publication of the list prepared by the<\/p>\n
Institute. The present writ petition is an off shoot of the resolution taken by<\/p>\n
the Governing Body pursuant to the directions issued by this court.<\/p>\n
      2.   The bare facts for the disposal of the writ petition are the<\/p>\n
following: At the time of filing of the writ petition, the petitioner was<\/p>\n
working as an Assistant Professor in the Department of Neurology. He<\/p>\n
joined the first respondent Institute as an Assistant Professor in the year<\/p>\n
1994. The further promotion is to the post of Associate Professor. The<\/p>\n
relevant scheme for promotion is known as Flexible Complementary<\/p>\n
Scheme. Ext.P2 is the order in force which contains the relevant rules for<\/p>\n
promotion.\n<\/p>\n
wpc 33196\/2003                        2<\/span><\/p>\n
      3.   Pursuant to Ext.P4 notification, the petitioner submitted an<\/p>\n
application with requisite testimonials and self assessment which is<\/p>\n
produced as Ext.P5. According to the petitioner, his non selection by the<\/p>\n
Staff Selection Committee is      vitiated by several illegalities.       The<\/p>\n
recommendation of the Staff Selection Committee was considered by the<\/p>\n
Governing Body on 18.12.1999 and the allegation raised by the petitioner is<\/p>\n
that without going into the merits of the matter, they accepted the<\/p>\n
recommendation. It is in these circumstances, he approached this court in<\/p>\n
the earlier writ petition which was disposed of by Ext.P8 judgment. This<\/p>\n
court as per the operative portion of the judgment, directed the Governing<\/p>\n
Body to consider the various aspects raised by         the petitioner in his<\/p>\n
representation and take a fresh decision. It is the case of the petitioner that<\/p>\n
the directions issued by this court have not been really implemented by the<\/p>\n
Governing Body.\n<\/p>\n
      4. The petitioner had challenged that part of the judgment which<\/p>\n
denied his promotion, by filing an appeal which stood dismissed and<\/p>\n
ultimately that was challenged in a Special Leave Petition before the Apex<\/p>\n
Court also. The judgments of the Division Bench and the Apex Court have<\/p>\n
been produced as Exts.P11 and P12.\n<\/p>\n
wpc 33196\/2003                          3<\/span><\/p>\n
      5. Shri Joseph Kodianthara,        learned counsel appearing for the<\/p>\n
petitioner invited my attention to the findings contained in para 8 of the<\/p>\n
judgment, Ext.P8 and contended that the resolution Ext.P10 does not satisfy<\/p>\n
the directions issued by this court. It is submitted that the Staff Selection<\/p>\n
Committee did not consider the credentials of the petitioner and the<\/p>\n
materials produced by him and the Governing Body had merely stamped<\/p>\n
their authority on the said decision by the Staff Selection Committee,<\/p>\n
without considering any of the materials. Therefore, it is pointed out that<\/p>\n
the binding directions issued by this court in Ext.P8 have been given a go-<\/p>\n
bye by the Governing Body and hence the entire proceedings issued by the<\/p>\n
Governing Body as per Ext.P10 is vitiated by several             irregularities.<\/p>\n
Therefore, it is submitted that the petitioner is entitled to be promoted as<\/p>\n
Associate Professor and a direction has to be issued as such.<\/p>\n
      6. Shri T.R. Ravi, learned counsel appearing for the first respondent<\/p>\n
submitted that the arguments raised by the learned counsel for the petitioner<\/p>\n
are not correct. My attention was drawn to the contents of Ext.P10 in<\/p>\n
support of the argument. It is also submitted that in the light of the findings<\/p>\n
contained in the judgment of the Division Bench, the petitioner cannot be<\/p>\n
heard to say that the merits of his claim have not been gone into by the Staff<\/p>\n
Selection Committee, as the Division Bench clearly held in para 7 of the<\/p>\n
wpc 33196\/2003                         4<\/span><\/p>\n
judgment that his claim was duly considered by the Staff Selection<\/p>\n
Committee.      It is therefore submitted that this court cannot         in this<\/p>\n
jurisdiction, sit in appeal over the decision of the expert bodies like the first<\/p>\n
respondent. The relevant findings contained in the judgment Ext.P12 have<\/p>\n
also been brought to my notice.\n<\/p>\n
      7.   First I will refer to the deficiencies pointed out in         Ext.P8<\/p>\n
judgment in regard to the proceedings issued against the petitioner. It was<\/p>\n
noted in para 5 of the judgment that the decision of the Senior Staff<\/p>\n
Selection Committee shows that the petitioner was not recommended for<\/p>\n
three reasons, viz. (i) No original research contribution; (ii) Poor<\/p>\n
performance in the interview; and (iii) Clinical competence and technical<\/p>\n
knowledge did not measure upto expected standards. It was held in para 7<\/p>\n
that this court under Article 226 of the Constitution of India,          cannot<\/p>\n
substitute the decision of the Staff Selection Committee and recommend the<\/p>\n
petitioner for promotion.       Finally in para 8 the Governing Body was<\/p>\n
directed to consider the representation of the petitioner against his non<\/p>\n
selection, after affording an opportunity of being heard to the petitioner.<\/p>\n
Respondents 3 and 10 therein were directed not to participate in the meeting<\/p>\n
of the Governing Body to avoid any charge of bias. In fact, it was made<\/p>\n
clear that the Governing Body will be free to take appropriate further<\/p>\n
wpc 33196\/2003                        5<\/span><\/p>\n
decision including formation of a fresh Selection Committee and            re-<\/p>\n
assessment of the petitioner in accordance with law, if it is not able to take<\/p>\n
a decision objectively on the suitability of the petitioner for upgradation on<\/p>\n
the basis of the Minutes and other records of the Selection Committee.<\/p>\n
      8. In fact, these directions have been strongly relied upon by the<\/p>\n
learned counsel for the petitioner to contend that, what was done by the<\/p>\n
Governing Body while adopting Ext.P10 is contrary to the above directions.<\/p>\n
Emphasis was laid by the learned counsel for the petitioner, to elaborate the<\/p>\n
said contention, by relying on para (c) of Ext.P10. Therein, the Governing<\/p>\n
Body found that in the case of the petitioner, the first reason given by the<\/p>\n
Senior Staff Selection Committee that the candidate had not made any<\/p>\n
original research contributions, cannot be faulted. They proceeded further<\/p>\n
to state that    while assessing the publications of the petitioner, the<\/p>\n
Governing Body found that the Staff Selection Committee was justified in<\/p>\n
making the above observations and finally they said that they do not find<\/p>\n
any reason to interfere with the other two findings recorded by the Staff<\/p>\n
Selection Committee as well. The dissenting opinion of another member of<\/p>\n
the Governing Body was also relied upon by the learned counsel for the<\/p>\n
petitioner.\n<\/p>\n
wpc 33196\/2003                         6<\/span><\/p>\n
       9. It is the contention of the petitioner that none of the records were<\/p>\n
perused by the Staff Selection Committee while arriving at their decision<\/p>\n
and the Governing Body was not posited with all the detailed facts and<\/p>\n
materials for taking a decision. Therefore, their conclusions are vitiated by<\/p>\n
non consideration of the relevant materials, submitted the learned counsel.<\/p>\n
It is therefore pointed out that they should have constituted a fresh Staff<\/p>\n
Selection Committee, after finding that the proceedings of the Staff<\/p>\n
Selection Committee are patently illegal.\n<\/p>\n
       10. Shri T.R. Ravi, learned counsel for the first respondent submitted<\/p>\n
that to appreciate the above argument, a reading of Exts.P11 and P12<\/p>\n
judgments will be profitable.     It is submitted that the proceedings of the<\/p>\n
Staff Selection Committee have been found proper by the Division Bench as<\/p>\n
well as by the Apex Court. Even the decision of the Governing body as per<\/p>\n
Ext.P10 was referred to by the Division Bench and the Bench did not find<\/p>\n
any infirmity in them. The same is the position as far as the findings of the<\/p>\n
Apex Court is also concerned. It is therefore submitted that in the light of<\/p>\n
the findings rendered by the Division Bench and the Apex Court, this court<\/p>\n
at this stage cannot go back to the findings of the            Staff Selection<\/p>\n
Committee or the procedure adopted by them to find out whether the<\/p>\n
Governing Body has acted properly. It is submitted that when the judgment<\/p>\n
wpc 33196\/2003                         7<\/span><\/p>\n
of the learned Single Judge has merged with the judgment of the Division<\/p>\n
Bench and that of the Apex Court, the observations in the operative portion<\/p>\n
of Ext.P8 judgment cannot help the petitioner, as those observations stand<\/p>\n
modified by the findings rendered by the Division Bench. Learned counsel<\/p>\n
further submitted that a reading of the proceedings of the Governing Body<\/p>\n
will show that all those materials relied upon by the petitioner have been<\/p>\n
properly considered and therefore there is no failure to obey the directions<\/p>\n
issued by this court in the matter.\n<\/p>\n
      11. I shall now refer to the findings contained in Ext.P11 judgment of<\/p>\n
the Division Bench.      After referring to the reasons stated by the Staff<\/p>\n
Selection Committee not to recommend the petitioner, in para 7 it was held<\/p>\n
thus:\n<\/p>\n
      “A perusal of the above shows that the appellant’s claim was duly<\/p>\n
      considered. However, the Committee had not found him to be upto<\/p>\n
      the requisite standard.”\n<\/p><\/blockquote>\n
After referring to the proceedings of the Governing body, produced as<\/p>\n
Ext.P10 here, it was observed in para 13 thus:\n<\/p>\n
       “It may be so. Since the appellant has not challenged the order of<\/p>\n
       the Governing body before us, we are not going into the merits<\/p>\n
       thereof. We do not wish to make any comment on it. However, it<\/p>\n
wpc 33196\/2003                         8<\/span><\/p>\n
       deserves notice that learned counsel for the appellant has not denied<\/p>\n
       the factum of rejection of the representation. Thus, it appears that on<\/p>\n
       consideration of the representation, even the Governing body had<\/p>\n
       found no reason to differ with the recommendation of the Selection<\/p>\n
       Committee.”\n<\/p><\/blockquote>\n
The Division Bench concluded thus in para 14:\n<\/p>\n
      “The selection of a candidate has to be made by the duly constituted<\/p>\n
      Committee. The High Court cannot examine the matter as a super<\/p>\n
      Selection board. The scope of judicial review is limited. There is no<\/p>\n
      suggestion that the Committee was not constituted in conformity with<\/p>\n
      the Rules. Still further, it is clear from the record that the appellant’s<\/p>\n
      name was duly considered. It may be that the appellant is better than<\/p>\n
      what the Committee had found him to be. Equally it is also possible<\/p>\n
      that the appellant may have an exaggerated view of his own ability.<\/p>\n
      However, the suitability and merit have to be adjudged by the<\/p>\n
      competent authority and not by the Court.”\n<\/p><\/blockquote>\n
The conclusion laid down by the Division Bench has been more emphatic if<\/p>\n
we go to para 15, in which it was held as follows:\n<\/p>\n
wpc 33196\/2003                        9<\/span><\/p>\n
       “The intervention of the Court can only be in a situation where the<\/p>\n
       action is per se arbitrary or there is an infraction of law. In the<\/p>\n
       present case, neither of the two factors exist.”<\/p>\n<\/blockquote>\n
Thus, the writ appeal was dismissed.\n<\/p>\n
       12. The Apex Court, after considering the arguments of the learned<\/p>\n
counsel for the petitioner that the petitioner ought to have been directed to<\/p>\n
be promoted by the Division Bench, held that the Division Bench assigned<\/p>\n
sufficient and cogent reasons for not agreeing with the submissions of the<\/p>\n
petitioner.\n<\/p>\n
       13.  Squarely the above findings bind the petitioner since the<\/p>\n
judgments are inter parties. Therefore, there is no scope for drawing the<\/p>\n
attention of this court again to the proceedings of the Staff Selection<\/p>\n
Committee which was found to be proper by the Division Bench in paras 7<\/p>\n
and 14 of the judgment. In fact, no permission had been sought before the<\/p>\n
Division Bench or before the Apex Court to challenge the proceedings of<\/p>\n
the Governing body. The proceedings of the Governing body were noticed<\/p>\n
by the Division Bench and it was concluded that the Governing Body also<\/p>\n
did not find any reason to differ with the recommendation of the Staff<\/p>\n
Selection Committee.\n<\/p>\n
wpc 33196\/2003                           10<\/span><\/p>\n
      14. Therefore, in exercise of the power of judicial review, this court<\/p>\n
may not be justified in upsetting the resolution of the Governing Body on its<\/p>\n
merits. Still, in deference to the arguments made by the learned counsel for<\/p>\n
the petitioner, I will refer to the findings rendered by the Governing Body in<\/p>\n
Ext.P10. In internal page 2 of Ext.P10, it is recorded that “the Governing<\/p>\n
Body called for the records of the Senior Staff Selection Committee which<\/p>\n
considered the case of the petitioner, the records relating to the earlier<\/p>\n
decision of the Governing Body accepting the recommendations of the<\/p>\n
Senior Staff Selection Committee, the papers submitted by the petitioner<\/p>\n
before the Selection Committee, the representation of the petitioner and all<\/p>\n
other connected papers relating to his assessment period (1994-1998) and<\/p>\n
examined the same in detail.” Then the contentions of the petitioner as<\/p>\n
contained in the representation are referred to.       While referring to the<\/p>\n
research materials produced by the petitioner, it is noted by the Governing<\/p>\n
Body that some of the materials produced by him did not relate to the<\/p>\n
assessment period and those materials were not available to the Staff<\/p>\n
Selection Committee at the time of interview. Then they have referred to<\/p>\n
the contentions raised by the petitioner regarding bias, etc. and after going<\/p>\n
through various proceedings including the comments of the Staff Selection<\/p>\n
Committee, the Governing body was of the view that they were satisfied<\/p>\n
wpc 33196\/2003                        11<\/span><\/p>\n
that the committee members had conducted the interview very fairly. Their<\/p>\n
conclusions are recorded in paragraphs a, b, c and d. A specific finding has<\/p>\n
been rendered that the allegation of bias against the Head of the Department<\/p>\n
of Neurology, cannot be sustained and the Governing Body was of the view<\/p>\n
that Dr. Radhakrishnan, could not have influenced the decision of the Staff<\/p>\n
Selection Committee. While considering the contention that the selection<\/p>\n
procedure was unfair, it was of the view that the said allegation is not fair.<\/p>\n
Then they have adverted to the three reasons stated by the Staff Selection<\/p>\n
Committee in para (c) and conclusions have been rendered in para (d) also.<\/p>\n
The dissenting note of one member of the Governing body was also<\/p>\n
recorded. In fact, learned counsel for the petitioner had raised a contention<\/p>\n
that no detailed reasons have been stated by the Staff Selection Committee.<\/p>\n
While considering the representation of the petitioner, the Governing Body<\/p>\n
was of the view that “the details of the deliberations after the interview are<\/p>\n
not usually recorded in the proceedings as a practice. Since no comparative<\/p>\n
assessment of candidate is required in making the promotions to the post of<\/p>\n
Associate Professor under the FCP Scheme as it is a non-vacancy linked<\/p>\n
promotion, there is no practice of each member recording marks for various<\/p>\n
aspects.”   It was also noted by the Governing Body that in the case of<\/p>\n
promotions of similar nature, the method followed in other national<\/p>\n
wpc 33196\/2003                         12<\/span><\/p>\n
institutes are more or less the same. and during the subsequent years also the<\/p>\n
same method has been followed.\n<\/p>\n
       15. Thus, I am of the view that cogent reasons have been pointed out<\/p>\n
by the Governing Body while answering the contentions raised by the<\/p>\n
petitioner in the representation.      The contention that they have not<\/p>\n
considered the materials before the Staff Selection Committee, is plainly not<\/p>\n
acceptable. The conclusions are supported by a proper assessment and<\/p>\n
there is proper consideration of the materials also.\n<\/p>\n
       16. Learned counsel for the petitioner while referring to Ext.P2, had<\/p>\n
contended that the eligibility for promotion from the category of Asst.<\/p>\n
Professor was made 100% and therefore, promotion ought not have been<\/p>\n
denied. In fact, this aspect also has been answered in para 8 of the counter<\/p>\n
affidavit filed by the Institute.    It is submitted that it is not a 100%<\/p>\n
promotion post and reliance is placed on Rule 19 of the FCP Scheme.<\/p>\n
Ext.P2 clearly says that the assessment procedure for the purpose of<\/p>\n
promotion will continue to be as before by the Senior Selection Committee.<\/p>\n
The procedure is made mention of in Rule 19.\n<\/p>\n
       17. Thus, it is clear that the curriculum vitae of the petitioner on his<\/p>\n
own assessment as well as the relevant materials have been considered by<\/p>\n
the Staff Selection Committee and by the Governing Body.<\/p>\n
wpc 33196\/2003                       13<\/span><\/p>\n
      For all the above reasons, I find that the petitioner is not entitled to<\/p>\n
succeed in the writ petition and hence the same is dismissed. No costs.<\/p>\n
                                    (T.R. Ramachandran Nair, Judge.)<\/p>\n
kav\/<\/p>\n","protected":false},"excerpt":{"rendered":"
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. 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