Ashitha. R.K vs State Of Kerala

P.B.Suresh Kumar, J.

This appeal is directed against the judgment dated 22.6.2022 in W.P.(C) No.24642 of 2020. The appellant is the petitioner in the writ petition. The matter relates to the selection pursuant to Ext.P1 notification for appointment to the post of Assistant Professor in Sree Sankaracharya University of Sanskrit (the University).

In terms of Ext.P1 notification, the University invited applications for appointment to the post of Assistant Professor in various subjects. The appellant was an applicant for appointment to the post of Assistant Professor in Sanskrit (Nyaya) pursuant to Ext.P1 notification. As far as the said post is concerned, it was provided in the notification that there are four vacancies, of which one is reserved for candidates belonging to Ezhava community, one is reserved for Scheduled Castes and the remaining two are intended for open competition candidates. As per Section 32 of the Sree Sankaracharya University Act, 1994 (the Act), while making appointments to teaching posts, the University is bound to observe, mutatis mutandis, the provisions of clauses (a), (b) and (c) of Rule 14 and the provisions of Rules, 15, 16, 17 and 17A of the Kerala State and Subordinate Service Rules, 1958, treating all the departments of the University as a single unit. Earlier, the rules of reservation and communal rotation were being applied in the University department-wise and it is by virtue of an amendment made to Section 32 of the Act in terms of Act 26 of 2014, the Rules of reservation and communal rotation are now being applied category-wise treating all departments of the University as one unit. The appellant is a candidate entitled to reservation in terms of the provisions contained in the Kerala State and Subordinate Service Rules, 1958. According to the appellant, the amendment introduced to Section 32 of the Act in order to apply the Rules of reservation and communal rotation category-wise treating all the departments of the University as one unit, is against the mandate of communal reservation envisaged in the Constitution.

The selection pursuant to Ext.P1 notification was as provided for in the UGC Regulations on Minimum Qualifications for appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 (the UGC Regulations). As per the UGC Regulations, as far as the selection for appointment to the post of Assistant Professor is concerned, the candidates are required to be shortlisted based on their academic excellence as prescribed in Table 3A of Appendix II of the UGC Regulations. The Note appended to Regulation 4.1.I of the UGC Regulations dealing with Assistant Professors provides that the academic score as specified in Table 3A of Appendix II for Universities shall be considered for short-listing of the candidates for interview and the selections shall be based only on the performance in the interview. Table 3A of Appendix II clarifies that the number of candidates to be called for interview shall be decided by the concerned Universities. According to the appellant, the Note appended to Regulation 4.1.I of the UGC Regulations is unconstitutional inasmuch as it provides for selection solely based on the performance in the interview.

The  writ  petition,  in  the  circumstances,  was instituted challenging Section 32 of the Act as amended by Act 26 of 2014 as also the Note appended to Clause 4.1.I of the UGC Regulations as violative of the fundamental rights guaranteed to the appellant under Articles 16(1) and 16(4) of the Constitution. She has also challenged the selection process pursuant to Ext.P1 notification on that basis.

The University filed a counter affidavit in the writ petition, stating, among others that it has fixed 55 marks as index mark for candidates belonging to Scheduled Castes and Scheduled Tribes and 60 marks as index mark for others for selection for appointment to the post of Assistant Professor and only those who have secured the index mark as has been fixed, were invited for interview, after the process of short-listing. It is also stated by the University in the counter affidavit that the appellant has scored only 42 marks in the short-listing process and was therefore, not qualified to be called for interview and she was accordingly not called for interview.

The learned Single Judge took the view that insofar as the appellant does not question her exclusion from the short-list, the contentions raised by her in the writ petition are all merely academic and consequently, dismissed the writ petition without going into the merits of the contentions. The appellant is aggrieved by the said decision of the learned Single Judge.

Heard the learned Senior Counsel for the appellant and the learned Advocate General who appeared for the University.

Placing reliance on the decisions of the Apex Court in Lila Dhar v. State of Rajasthan, (1981) 4 SCC 159 , Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722 and Ashok Kumar Yadav v. State of Haryana, (1985) 4 SCC 417, the learned Senior Counsel for the appellant contended that the Note appended to Regulation 4.1.I of the UGC Regulations making the selection for appointment to the post of Assistant Professor solely based on the performance of candidates in the interview, is bad in law. According to the learned Senior Counsel, a selection process for appointment without reckoning the academic scores of the candidates, that too, to a teaching post, is wholly arbitrary and unreasonable. The learned Senior Counsel, thereupon, made elaborate submissions in support of his contention that Section 32 of the Act inasmuch as it provides that the Rules of reservation and communal rotation shall be applied category-wise, treating all the departments of the University as one single unit, is unconstitutional. He conceded that the issue has been considered by a Division Bench of this court in State of Kerala v. G. Radhakrishna Pillai, 2022 (1) KLT 253 and the challenge against the amended Section 32 was repelled. Nevertheless, he argued based on a large number of decisions of this Court as also the Apex Court that the decision of the Division Bench in G. Radhakrishna Pillai needs be reconsidered.

Per contra, the learned Advocate General submitted that inasmuch as the appellant does not have a case that short-listing of candidates is impermissible in a selection process and does not challenge the manner provided for in Table 3A in Appendix II to the UGC Regulations for short-listing of candidates for selection for appointment to the post of Assistant Professor, it is unnecessary for this Court to examine the sustainability or otherwise of the challenge made by her against the Note appended to Regulation 4.1.I of the UGC Regulations, for even if this Court sustains the challenge, no relief could be granted to the appellant. Even while contending that it is unnecessary for this Court to examine the sustainability or otherwise of the challenge against the Note Appended to Regulation

4.1.I of the UGC Regulations, it was argued by the learned Advocate General that a selection process solely based on interview is not illegal and the various decisions cited by the learned Senior Counsel for the appellant to establish the contrary, cannot have any application to a selection process solely based on interview. The learned Advocate General relied on the decision of the Apex Court in Kiran Gupta v. State of U.P. and Others, (2000) 7 SCC 719, in support of the said proposition. It was also contended by the learned Advocate General that inasmuch as the appellant has not secured the index mark fixed to be called for interview, it is unnecessary for this Court to examine the challenge made by the appellant against Section 32 of the Act also, as the same would be a futile exercise not beneficial to the appellant in any manner. The learned Advocate General has relied on the decision of the Apex Court in K.I. Shephard v. Union of India, (1987) 4 SCC 431, in support of the said contention.

We have examined the contentions advanced by the learned counsel for the parties on either side.

It is by now settled that a person who brings a petition even for invocation of a fundamental right must be a person having some direct or indirect interest in the outcome of the petition [See Kishore Samrite v. State of Uttar Pradesh and Others, (2013) 2 SCC 398]. As such, a person shall have no locus standi generally to file a writ petition, unless he/she is personally affected by the impugned order or his/her fundamental rights have been directly or substantially invaded or there is an imminent danger of such rights being invaded. It is all the more so since the relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction, and the exceptions to the general rule are only in cases where the writ applied is a writ of habeas corpus or quo warranto or filed in public interest. Even in cases filed in public interest, the court can exercise the writ jurisdiction at the instance of a third party only when it is shown that determined class of persons are, by reason of poverty, helplessness, disability, or social and economic backwardness, unable to approach the court for relief [See Vinoy Kumar v. State of U.P. And Others, (2001) 4 SCC 734]. The case of the appellant needs to be examined in light of the aforesaid principles as regards the locus standi to institute writ petitions.

It is now trite that if an employer fixes a cut-off position for conducting a selection for appointment, the same cannot be tinkered with by courts, unless it is totally irrational or tainted with malafides. As argued by the learned Advocate General, the appellant does not rightly challenge the short-listing of candidates made by the University based on their academic score as provided for in Table 3A of Appendix II of the UGC Regulations. If that be so, even if the challenge made by the appellant against the Note appended to Regulation 4.1.I of the UGC Regulations is sustained, no relief could be granted to her, as she had not passed the stage of being short-listed to subject herself to the process of selection. According to us, inasmuch as an adjudication on the question as to the sustainability or otherwise of the Note appended to Regulation 4.1.I of the UGC Regulations does not benefit the appellant in any manner, she does not have the locus standi to challenge the said Note and it is, therefore, unnecessary for this Court to consider the sustainability or otherwise of the challenge against the Note. Even otherwise, as rightly pointed out by the learned Advocate General, there is absolutely no basis for the contention that there cannot be a selection process solely based on the performance in the interview. In a given case, where short-listing of candidates is made objectively based on academic credentials of the applicants for selection, we do not find any illegality in conducting the selection based on the performance of the short-listed candidates in the interview alone, especially in a case of the instant nature, where the academic credentials are reckoned objectively for short-listing the applicants. In this context, it is worth referring to the decision of the Apex Court in Kiran Gupta which has been rendered after referring to all the judgments of the Apex Court cited by the learned Senior Counsel for the appellant. Paragraph 22 of the judgment in Kiran Gupta reads thus :

It is difficult to accept the omnibus contention that selection on the basis of viva voce only is arbitrary and illegal and that since allocation of 15% marks for interview was held to be arbitrary by this Court, selections solely based on interview is a fortiori illegal. It will be useful to bear in mind that there is no rule of thumb with regard to allotment of percentage of marks for interview. It depends on several factors and the question of permissible percentage of marks for an interview-test has to be decided on the facts of each case. However, the decisions of this Court with regard to reasonableness of percentage of marks allotted for interview in cases of admission to educational institutions/schools will not afford a proper guidance in determining the permissible percentage of marks for interview in cases of selection/appointment to the posts in various services. Even in this class, there may be two categories: (i) when the selection is by both a written test and viva voce; and (ii) by viva voce alone. The courts have frowned upon prescribing higher percentage of marks for interview when selection is on the basis of both oral interview and a written test. But, where oral interview alone has been the criteria for selection/appointment/promotion to any posts in senior positions the question of higher percentage of marks for interview does not arise. Therefore, we think it an exercise in futility to discuss these cases — Minor A. Peeriakaruppan v. State of T.N. [(1971) 1 SCC 38] and Ajay Hasia v. Khalid Mujib Sehravardi [(1981) 1 SCC 722 : 1981 SCC (L&S) 258] — relied upon by Mr Goswami, which deal with admission to educational institutions/schools and also cases where prescribed method of recruitment was written test followed by an interview — Ashok Kumar Yadav v. State of Haryana [(1985) 4 SCC 417 : 1986 SCC (L&S) 88] ; D.V. Bakshi v. Union of India [(1993) 3 SCC 663 : 1993 SCC (L&S) 991 : (1993) 25 ATC 206] and Krishan Yadav v. State of Haryana [(1994) 4 SCC 165 : 1994 SCC (L&S) 937 : (1994) 27 ATC 547] .

In light of the said judgment, even assuming that the appellant is entitled to challenge the Note appended to Regulation 4.1.I of the UGC Regulations, the challenge cannot be sustained. Similar is the situation as regards the challenge made by the appellant against Section 32 of the Act as amended by Act 26 of 2014. As the appellant will not be benefitted in any manner on account of the adjudication of the challenge raised against the said statutory provision, it is unnecessary for us to make any endeavour to examine the sustainability or otherwise of the challenge against the said statutory provision. We are fortified in this view also by the decision of the Apex Court in K.I. Shephard, wherein it was held by the Apex Court that the Court should not enter into constitutional issues, unless it is really necessary for the disposal of the dispute.

In the circumstances, there is no merit in the writ appeal and the same is, accordingly, dismissed.