T. Anithakumary vs University of Kerala

A.K. Jayasankaran Nambiar, J.—The petitioner is working as Associate Professor in the Department of Malayalam at the Sree Narayana College, Kollam. She was appointed as lecturer at Sree Narayana College, Cherthala, where she was given Grade promotions, to the Senior Scale and Selection Grade applicable to the post of Lecturer, on 12.05.1995 and 08.08.1998 respectively. Thereafter, she was appointed as Reader with effect from 30.09.2007. Still later, she was appointed as an Associate Professor.

By Ext. P1 notification dated 19.04.2008, the respondent University called for applications for the post of Professor in the Department of Malayalam. The last date for receiving completed applications was shown as 18.05.2008 in the said notification. In Ext. P2 notification, that was issued by the respondent University, details pertaining to Ext. P1 notification were given and, apart from indicating the academic qualifications that had to be possessed by interested candidates, it was also indicated as follows:

"Completed application along with DD/Chalan for the prescribed cost of application form and registration fee, one passport size photograph, attested copies of certificates, testimonials etc, should reach the Deputy Registrar (Admn. III) University of Kerala, Thiruvananthapuram-695 034 on or before 18.05.2008."

"Note: 3 OBC candidates have to produce the certificate that they do not belong to the Creamy Layer as contemplated in G.O. (P) No. 36/2000/SC/STDD dated 27.05.2000"

The petitioner applied for the post of Professor and sought consideration of her candidature against the post that was reserved for Ezhava candidates. While submitting her application, therefore, she had also enclosed a Community Certificate indicating that she belonged to the Ezhava community, as also a certificate to show that she did not belong to the Creamy Layer as contemplated in the Government order dated 27.05.2000. Thereafter, the petitioner was called for an interview on 14.03.2011, when she was interviewed along with 15 other candidates. It would appear that pursuant to the interview the respondent University selected the 3rd respondent, against the vacancy reserved for Ezhava candidates, and appointed her to the post. The selection of the 3rd respondent is sought to be impugned by the petitioner in this writ petition, inter alia, on the ground that the consideration of the 3rd respondent for selection itself was flawed in as much as the 3rd respondent had not produced the Non-Creamy Layer Certificate, that had to be produced by candidates claiming the benefit of reservation under the Ezhava category, on or before the last date of receipt of applications indicated in Exts. P1 and P2 notifications. It is pointed out that the 3rd respondent had furnished the Non-Creamy Layer Certificate only on the date of interview and this was not permissible going by the express terms of Exts. P1 and P2 notification. The petitioner would place reliance on the decision of the Supreme Court in Union of India (UOI) and Others Vs. Bikash Kuanar, , wherein at paragraph 16 it is indicated that a candidate seeking appointment to a post had necessarily to submit all the necessary and required documents before the date prescribed for receipt of applications for the post. The petitioner would also point out that while assessing the inter se merit of the candidates who had been called for the interview, the respondent University was guided by the data provided in Ext. P7 statement. It is her contention that the said statement does not contain an accurate information with regard to the number of papers published by her in approved journals or the number of papers presented in Seminars/Conferences. The petitioner would submit, therefore, that insofar as the data in Ext. P7 statement was not accurate, the proceedings of the Interview Board, which met to consider the candidature of the various qualified candidates including the petitioner for the post in question, had necessarily to be seen as arbitrary and unreasonable.

Per contra, the respondent University would contend that the candidature of the 3rd respondent could not be called in question since, although the 3rd respondent had not produced the Non-Creamy Layer Certificate along with his application, the said certificate was produced on the date of interview namely, on 14.03.2011. It is contended that there was no illegality or irregularity in considering the said certificate produced by the 3rd respondent at the time of interview since the respondent University had adopted the provisions of Part II of the KS & SSR, including Rule 17(C) thereof, which enables the respondent University to consider certificates in support of the claim for reservation even if produced after the last date for receipt of applications, but before finalisation of the select list of candidates. As regards the appraisal of the candidates at the interview, the respondent University would rely on Ext. R1(a) statement which shows the marks obtained by the various candidates interviewed on 14.03.2011. In particular, it is pointed out that the marks awarded at the interview were under specified heads and taking into account various parameters as indicated in the said statement. It is contended therefore that there was no inherent arbitrariness or unreasonableness in the matter of assessment of the inter se merits of the various candidates and, therefore, the selection proceedings could not be legally assailed. It is also pointed out that from a perusal of Ext. R1(a) statement it would be clear that the 3rd respondent had secured considerably more marks than the petitioner at the interview and hence the petitioner could not claim any preferential right, over the 3rd respondent, in the matter of selection to the post in question. Counsel for the 3rd respondent, while adopting the said contentions, would in addition point to the existence of an alternate remedy in the petitioner under Section 73(3) of the Kerala University Act where an appeal is provided for before the University appellate Tribunal.

I have heard Sri. K.B.S. Rajan, the learned counsel appearing on behalf of the petitioner, Sri. Roy Jose, the learned Standing counsel for the respondent University and Sri. S.M. Prasanth, learned counsel appearing for the 3rd respondent.

The primary ground of challenge by the petitioner against the appointment of the 3rd respondent to the post of Professor under the respondent University, is with regard to the consideration of his candidature to the post. The specific case of the petitioner is that the 3rd respondent had not chosen to furnish the Non-Creamy Layer certificate along with his application on or before the last date for submission of the applications. It is contented that this virtually amounted to ignoring the express provisions of Exts. P1 and P2 notifications in that the application submitted by the 3rd respondent could not be seen as a completed application in the absence of the certificate in question. To examine the merit of this contention of the petitioner it would be necessary to first examine the nature of the certificate that was insisted upon by the respondent University. As already noted, the certificate in question is one that shows the candidate as belonging to the Non-Creamy Layer, among candidates belonging to the Ezhava community. The purpose of the said certificate is to ensure that only such candidates belonging to the Ezhava community obtain the benefit of reservation, as fall under the Non-Creamy Layer category. In otherwords, this is a certificate that is intended to ensure that only those candidates for whom the benefit of reservation is contemplated, can aspire for the post in question under the quota earmarked for the Ezhava community. If that intention is to be carried to its logical conclusion, then I am of the view that the status of a candidate, claiming the benefit of reservation as applicable to the Ezhava community, must be one that carries through till the date of his or her appointment in the post in question. This can be effectively ensured only by verifying, at the time of interview, as to whether the candidate claiming the benefit of reservation is on that date a person who comes within the Non-Creamy Layer category. Verification of this aspect on the date of interview, as opposed to the last date of receipt of application, would be more in conformity with the basic intention of providing reservation only to those candidates who are entitled to get it by virtue of the constitutional provisions read with the executive orders issued on the subject. In that view of the matter, I am of the view that the mere fact that the 3rd respondent had not furnished the Non-Creamy Layer Certificate, along with his application, cannot be a reason to hold him disqualified from undergoing the selection process for the post in question. While on this issue, it might also be relevant to note that the 3rd respondent was not the only candidate who claimed the benefit of reservation without producing the Non-creamy Layer Certificate along with the application. The fact that there were other candidates who produced the Non-Creamy Layer Certificate only at the time of interview, and were considered for the post, would indicate that the respondent University did not insist on a production of the Non-Creamy layer Certificate along with the application and that, that was not a mandatory condition to be fulfilled by an applicant to the post in a reserved category.

I must now advert to the contention of the petitioner with regard to the manner in which the Interview Board assessed the inter se merits of the candidates at the interview. While the petitioner would vehemently contend that the discrepancies in Ext. P7 statement would point to the possibility of the interview Board having been misled, in material respects, with regard to the qualifications of the candidates at the interview, a perusal of Ext. R1(a) statement would indicate that the candidates who appeared the interview, were assessed on various parameters. There were separate marks allotted for different criteria and candidates were assessed separately against each of those criteria. The assessment itself was by a panel of 7 members, all of whom have affixed their signatures to the final statement. The marks obtained by the candidates under the various heads were then totalled and the inter se merit of the various candidates was determined by comparing the total marks obtained by each of them. In my view, the selection procedure cannot be said to be in any way vitiated particularly, in the absence of any concrete material that would suggest that there was any misrepresentation, favouritism or malafides in the conduct of the selection.

It is also relevant to note in this case that a perusal of Ext. R1(a) statement would indicate that, even if the petitioner were to be allotted the maximum marks for the submission of papers at the Seminars/Conferences, It still would not have sufficed to place her above the 3rd respondent or even the next eligible candidate, as per the marks awarded in Ext. R1(a) statement. This is yet another reason why the selection process need not be interfered with. It is trite that while exercising the jurisdiction of judicial review, this Court will not sit as an appellate authority to conduct a merit review of a selection process that has been undertaken by the respondent University. As long as the selection process is not hit by any illegality, irrationality or procedural impropriety and further, is not affected by vice of wednesbury unreasonableness, this Court will not normally interfere with a selection process that has been conducted by a University.

In the result, I find that no grounds have been made out to interfere with the selection conducted by the respondent University. The writ petition fails and is accordingly dismissed. No order as to costs.