The Kerala Agricultural University Vs. K.R. Anil & Ors.
EmailAppeal: Civil Appeal No. 8676 of 1997
(Arising out of S.L.P. (C) No. 20785 of 1996)
(From the Judgment and Order dated 4.7.96 of the Kerala High Court in O.P. No. 7640 of 1988)
(Arising out of S.L.P. (C) No. 20785 of 1996)
(From the Judgment and Order dated 4.7.96 of the Kerala High Court in O.P. No. 7640 of 1988)
Petitioner: The Kerala Agricultural University
Respondent: K.R. Anil & Ors.
Apeal: Civil Appeal No. 8676 of 1997
(Arising out of S.L.P. (C) No. 20785 of 1996)
(From the Judgment and Order dated 4.7.96 of the Kerala High Court in O.P. No. 7640 of 1988)
(Arising out of S.L.P. (C) No. 20785 of 1996)
(From the Judgment and Order dated 4.7.96 of the Kerala High Court in O.P. No. 7640 of 1988)
Judges: G.N. RAY & G.B.PATTANAIK, JJ. –
Date of Judgment: Dec 03, 1997
Appearances:
Mr. John Mathew, Senior Advocate, Mr. E.M.S. Anam, Mr. Fazlin Anam, Advocates with him for the Appellant.
Mr. Raju Ramachandran, Senior Advocate, Mr. Roy Abraham, Mrs. Baby Krishnan, (Ms. Malini Poduval) Advocate for State/Advocates with him for the Respondents.
Mr. Raju Ramachandran, Senior Advocate, Mr. Roy Abraham, Mrs. Baby Krishnan, (Ms. Malini Poduval) Advocate for State/Advocates with him for the Respondents.
Head Note:
SERVICE LAWS
Kerala State & Subordinate Service Rules
Selection for post – Reservation – Kerala State & Subordinate Service Rules 14 & 17, 15 – Held High Court erred in holding that no selection is required to be made against reserved vacancy under Rules 14 to 17 – View of High Court being incorrect is set aside – However as a plea of mala fide was alleged and University failed to produce records of Selection Committee, the direction of High Court in giving appointment to respondent No. 1 is not to be interfered with even though principle is set aside.
Held:
After considering the facts and circumstances of this case and submissions made by the learned counsel appearing for the parties it appears to us that the proviso to Rule 14(c) and clause (d) of Rule 14 and also 15 indicate that a merit assess-ment is required to be made even for the candidate who is eligi-ble to be appointed against the reserved vacancy. The High Court, in our view, was not justified to hold that if a candidate belongs to a community for which there is a vacancy and such candidate is otherwise eligible on the basis of his academic qualification such candidate cannot be eliminated by assessing his merit. Therefore the impugned judgment of the High Court indicating that no selection is required to be made in the matter of appointment against reserved vacancy under Rule 14 to 17 of the said Rules must be held to be incorrect and the same is set aside.
It is the specific grievance of the respondent No. 1 that even though he had fared well in the interview, his elimination was improper and amounted to malafide. Considering the fact that the University failed to produce records of the Selection Commit-tee to show that fair assessment had been made so far as respond-ent No. 1 is concerned, we do not think that the direction of the High Court to give appointment to respondent No. 1 should be interfered with in the special facts of the case. Therefore, although the principle on which the decision has been rendered by the High Court is not accepted and the same is set aside for the reasons indicated by us.(Para 6)
JUDGEMENT:
G.N. RAY, J:
1. Leave granted.
2. Heard Mr. John, Mathew, the learned senior counsel appearing for the appellant and also the learned counsel for the State of Kerala and Mr. Raju Ramachandran the learned senior counsel appearing for the respondent No. 1. The respondent No. 1 was a candidate for the appointment to the pose of Junior Assistant Professor in the Kerala Agricultural University when an adver-tisement for filling up such post had been given. It may be stated that the respondent No. 1 belongs to Ezhava community and it is an admitted position that there was a post reserved in the cadre of Junior Assistant Professor for a candidate belonging Ezhava community. The respondent No. 1 was not selected against such reserved vacancy and a writ petition was presented by him before the Kerala High Court. One of the grounds urged in the writ petition was :
“On the basis of qualification, experience and performance in the interview put together, the petitioner can only be placed above respondents 4, 5 and 7. The elimination of the petitioner from the select list therefore smacks malafides.”
3. By the impugned judgment, the High Court has held that under the provisions of Rule 14 to 17 of Kerala State and Subordinate Service Rules, no selection method was applicable for filing up the reserved vacancy and as the writ petitioner was eligible to be appointed against the said reserved vacancy the elimination of the writ petitioner on the score of not being found suitable in the selection process, was improper. The High Court therefore directed for appointment of the respondent No. 1 to the post of Assistant Professor in the said University because in the mean-time the post of Junior Assistant Professor was abolished and the Junior Assistant Professors were upgraded as Assistant Profes-sors. Mr. Mathew has contended that Rule 14 of the said Kerala State and Subordinate Service Rules should be considered along-with Rule 15. It will be quite apparent that even for the pur-pose of filing up post reserved for the members of scheduled castes and scheduled tribes and backward classes inter se merit assessment of candidates of such categories is required to be made. Our attention has been drawn to the proviso under clause (c) of the Rule 14 which is to the following effect :
“Provided also that in preparing the list of eligible candi-dates to the appointed under this Rule applying the rotations specified above in every cycle of 20 vacancies, the candidates eligible to be selected on open competition basis, that is, turns 1, 3, 5, 7, 9, 11, 13, 15, 17 and 19 shall be selected first and then the candidates for the reservation turns, out of those available in the ranked list in the particular groups having regard to their ranks. In finalising the select list any candidate of the same community selected on open competition turns, if found to be below in the order of the candidates selected from the same community on the basis of reservation, for the fixation of ranks as per rule 27 of these rules, candi-dates of the same community obtaining higher marks shall be integrated with the candidates of the same community in the reservation turn of the purpose of ranking.”
4. The learned counsel has also drawn attention of the Court to clause (d) of Rule 14 which indicates that notwithstanding any-thing contained in this Rule, posts to which appointments are made by direct recruitment from a common ranked list prepared on the basis of common test or interview or both,m shall be grouped together for the purposes of observance of the rule relating to reservation of appointments. Referring to such provisions the learned counsel has submitted that selection process is implied and such selection by way of assessment of inter se merit posi-tion does not effect the rule for appointment on the basis of communal rotation scheme. It has been contended by Mr. Mathew that it is the specific case of the University that the respond-ent No. 1 was called before a Selection Committee but she was not found suitable for appointment on assessment of merit by such Selection Committee. Unfortunately the University records relat-ing to such assessment by Selection Committee could not be traced because of certain events happening in the University in the meantime. Therefore such records could not be produced before the High court but the respondent No.1 in his writ petition not having contended that the selection process was otherwise illegal or there was defect in constituting the Selection Committee there was no occasion to look to the records relating to the selection process made by the Selection Committee. The learned counsel has submitted that the High Court failed to appreciate Rules 14 and 15 particularly the proviso mentioned hereinbefore and proceeded on an erroneous footing that the University was not competent to make any exercise by way of selection for short listing the candidate. Therefore, the impugned judgment cannot be sustained and the same should be set aside. Mr. Mathew has further submit-ted that for the purpose of appointment to the post of Assistant Professor, a selection on All India basis is required to be made. In the greater interest of the students it is also necessary to make proper exercise for selecting suitable candidates. There-fore, the direction given by the High Court should be set aside. Mr. Mathew has therefore submitted that the University should be permitted to select the proper person even against a reserved vacancy.
5. Mr. Raju Ramachandran the learned senior counsel appearing for the respondent No. 1 has submitted that it is not the stand of the respondent No. 1 no scrutiny of the candidates for the reserved category can be made because a candidate may be found unsuitable for some obvious reasons, on scrutiny. But such scrutiny is not to be equated with regular merit assessment by comparing the merit of a candidate eligible to be appointed against a reserved vacancy with general candidates through a general selection process. The respondent No. 1 as a matter of fact, appeared before the Selection Committee because the re-spondent did not object that no prima facie scrutiny can be made. But it is the specific case of the respondent that even though he fared well before the Selection Committee and answered all the questions he had not been selected because of some malafide. In such circumstances even assuming that respondent No. 1 had to face similar selection process the records of the University were required to be produced. Mr. Raju Ramachandran has submitted that withholding of such records was not proper and justified. There is no dispute that the respondent No. 1 has requisite qualification for the pot of Junior Assistant Professor or As-sistant Professor. Subsequently he got a temporary appointment to the post of Junior Assistant Professor in the University. There is no dispute that for any other obvious reasons he can be prima facie found unsuitable. Therefore, the direction of the High Court that the respondent No. 1 should be appointed to the post of Assistant Professor because the pot of Junior Assistant Professor does not exist now, should not be interfered with. The respondent No. 1 is not interested to oppose the contention of the appellant that under the said rules for appointment to a reserved vacancy some exercise by way of for assessing the suit-ability of the candidates is to be made.
6. After considering the facts and circumstances of this case and submissions made by the learned counsel appearing for the parties it appears to us that the proviso to Rule 14(c) and clause (d) of Rule 14 and also 15 indicate that a merit assess-ment is required to be made even for the candidate who is eligi-ble to be appointed against the reserved vacancy. The High Court, in our view, was not justified to hold that if a candidate belongs to a community for which there is a vacancy and such candidate is otherwise eligible on the basis of his academic qualification such candidate cannot be eliminated by assessing his merit. Therefore the impugned judgment of the High Court indicating that no selection is required to be made in the matter of appointment against reserved vacancy under Rule 14 to 17 of the said Rules must be held to be incorrect and the same is set aside. It is the specific grievance of the respondent No. 1 that even though he had fared well in the interview, his elimination was improper and amounted to malafide. Considering the fact that the University failed to produce records of the Selection Commit-tee to show that fair assessment had been made so far as respond-ent No. 1 is concerned, we do not think that the direction of the High Court to give appointment to respondent No. 1 should be interfered with in the special facts of the case. Therefore, although the principle on which the decision has been rendered by the High Court is not accepted and the same is set aside for the reasons indicated by us we are not inclined to interfere with the ultimate direction of the High Court to give appointment to the respondent No. 1 to the post of Assistant Professor. It is made clear that the approval of the direction for appointment of respondent No. 1 has been given in the special facts of the case and also by taking into consideration that the respondent No. 1 has requisite qualification for such appointment and he had also been given temporary appointment to the post of junior Assistant Professor in the said university on the basis of academic quali-fication and there is nothing adverse on records to suggest that the respondent No. 1 is unsuitable to hold the post of Assistant Professor. This appeal is accordingly disposed of without any order as to costs. It is made clear that such appointment of the respondent No. 1 to the post of Assistant Professor will be effective from the date of this judgment.
1. Leave granted.
2. Heard Mr. John, Mathew, the learned senior counsel appearing for the appellant and also the learned counsel for the State of Kerala and Mr. Raju Ramachandran the learned senior counsel appearing for the respondent No. 1. The respondent No. 1 was a candidate for the appointment to the pose of Junior Assistant Professor in the Kerala Agricultural University when an adver-tisement for filling up such post had been given. It may be stated that the respondent No. 1 belongs to Ezhava community and it is an admitted position that there was a post reserved in the cadre of Junior Assistant Professor for a candidate belonging Ezhava community. The respondent No. 1 was not selected against such reserved vacancy and a writ petition was presented by him before the Kerala High Court. One of the grounds urged in the writ petition was :
“On the basis of qualification, experience and performance in the interview put together, the petitioner can only be placed above respondents 4, 5 and 7. The elimination of the petitioner from the select list therefore smacks malafides.”
3. By the impugned judgment, the High Court has held that under the provisions of Rule 14 to 17 of Kerala State and Subordinate Service Rules, no selection method was applicable for filing up the reserved vacancy and as the writ petitioner was eligible to be appointed against the said reserved vacancy the elimination of the writ petitioner on the score of not being found suitable in the selection process, was improper. The High Court therefore directed for appointment of the respondent No. 1 to the post of Assistant Professor in the said University because in the mean-time the post of Junior Assistant Professor was abolished and the Junior Assistant Professors were upgraded as Assistant Profes-sors. Mr. Mathew has contended that Rule 14 of the said Kerala State and Subordinate Service Rules should be considered along-with Rule 15. It will be quite apparent that even for the pur-pose of filing up post reserved for the members of scheduled castes and scheduled tribes and backward classes inter se merit assessment of candidates of such categories is required to be made. Our attention has been drawn to the proviso under clause (c) of the Rule 14 which is to the following effect :
“Provided also that in preparing the list of eligible candi-dates to the appointed under this Rule applying the rotations specified above in every cycle of 20 vacancies, the candidates eligible to be selected on open competition basis, that is, turns 1, 3, 5, 7, 9, 11, 13, 15, 17 and 19 shall be selected first and then the candidates for the reservation turns, out of those available in the ranked list in the particular groups having regard to their ranks. In finalising the select list any candidate of the same community selected on open competition turns, if found to be below in the order of the candidates selected from the same community on the basis of reservation, for the fixation of ranks as per rule 27 of these rules, candi-dates of the same community obtaining higher marks shall be integrated with the candidates of the same community in the reservation turn of the purpose of ranking.”
4. The learned counsel has also drawn attention of the Court to clause (d) of Rule 14 which indicates that notwithstanding any-thing contained in this Rule, posts to which appointments are made by direct recruitment from a common ranked list prepared on the basis of common test or interview or both,m shall be grouped together for the purposes of observance of the rule relating to reservation of appointments. Referring to such provisions the learned counsel has submitted that selection process is implied and such selection by way of assessment of inter se merit posi-tion does not effect the rule for appointment on the basis of communal rotation scheme. It has been contended by Mr. Mathew that it is the specific case of the University that the respond-ent No. 1 was called before a Selection Committee but she was not found suitable for appointment on assessment of merit by such Selection Committee. Unfortunately the University records relat-ing to such assessment by Selection Committee could not be traced because of certain events happening in the University in the meantime. Therefore such records could not be produced before the High court but the respondent No.1 in his writ petition not having contended that the selection process was otherwise illegal or there was defect in constituting the Selection Committee there was no occasion to look to the records relating to the selection process made by the Selection Committee. The learned counsel has submitted that the High Court failed to appreciate Rules 14 and 15 particularly the proviso mentioned hereinbefore and proceeded on an erroneous footing that the University was not competent to make any exercise by way of selection for short listing the candidate. Therefore, the impugned judgment cannot be sustained and the same should be set aside. Mr. Mathew has further submit-ted that for the purpose of appointment to the post of Assistant Professor, a selection on All India basis is required to be made. In the greater interest of the students it is also necessary to make proper exercise for selecting suitable candidates. There-fore, the direction given by the High Court should be set aside. Mr. Mathew has therefore submitted that the University should be permitted to select the proper person even against a reserved vacancy.
5. Mr. Raju Ramachandran the learned senior counsel appearing for the respondent No. 1 has submitted that it is not the stand of the respondent No. 1 no scrutiny of the candidates for the reserved category can be made because a candidate may be found unsuitable for some obvious reasons, on scrutiny. But such scrutiny is not to be equated with regular merit assessment by comparing the merit of a candidate eligible to be appointed against a reserved vacancy with general candidates through a general selection process. The respondent No. 1 as a matter of fact, appeared before the Selection Committee because the re-spondent did not object that no prima facie scrutiny can be made. But it is the specific case of the respondent that even though he fared well before the Selection Committee and answered all the questions he had not been selected because of some malafide. In such circumstances even assuming that respondent No. 1 had to face similar selection process the records of the University were required to be produced. Mr. Raju Ramachandran has submitted that withholding of such records was not proper and justified. There is no dispute that the respondent No. 1 has requisite qualification for the pot of Junior Assistant Professor or As-sistant Professor. Subsequently he got a temporary appointment to the post of Junior Assistant Professor in the University. There is no dispute that for any other obvious reasons he can be prima facie found unsuitable. Therefore, the direction of the High Court that the respondent No. 1 should be appointed to the post of Assistant Professor because the pot of Junior Assistant Professor does not exist now, should not be interfered with. The respondent No. 1 is not interested to oppose the contention of the appellant that under the said rules for appointment to a reserved vacancy some exercise by way of for assessing the suit-ability of the candidates is to be made.
6. After considering the facts and circumstances of this case and submissions made by the learned counsel appearing for the parties it appears to us that the proviso to Rule 14(c) and clause (d) of Rule 14 and also 15 indicate that a merit assess-ment is required to be made even for the candidate who is eligi-ble to be appointed against the reserved vacancy. The High Court, in our view, was not justified to hold that if a candidate belongs to a community for which there is a vacancy and such candidate is otherwise eligible on the basis of his academic qualification such candidate cannot be eliminated by assessing his merit. Therefore the impugned judgment of the High Court indicating that no selection is required to be made in the matter of appointment against reserved vacancy under Rule 14 to 17 of the said Rules must be held to be incorrect and the same is set aside. It is the specific grievance of the respondent No. 1 that even though he had fared well in the interview, his elimination was improper and amounted to malafide. Considering the fact that the University failed to produce records of the Selection Commit-tee to show that fair assessment had been made so far as respond-ent No. 1 is concerned, we do not think that the direction of the High Court to give appointment to respondent No. 1 should be interfered with in the special facts of the case. Therefore, although the principle on which the decision has been rendered by the High Court is not accepted and the same is set aside for the reasons indicated by us we are not inclined to interfere with the ultimate direction of the High Court to give appointment to the respondent No. 1 to the post of Assistant Professor. It is made clear that the approval of the direction for appointment of respondent No. 1 has been given in the special facts of the case and also by taking into consideration that the respondent No. 1 has requisite qualification for such appointment and he had also been given temporary appointment to the post of junior Assistant Professor in the said university on the basis of academic quali-fication and there is nothing adverse on records to suggest that the respondent No. 1 is unsuitable to hold the post of Assistant Professor. This appeal is accordingly disposed of without any order as to costs. It is made clear that such appointment of the respondent No. 1 to the post of Assistant Professor will be effective from the date of this judgment.
