"Relaxations For One Candidate Violates Article 14" : Kerala High Court Cancels Appointment Of Assistant Professor At Mahatma Gandhi University

The Kerala High Court, on Thursday, while setting aside the impugned judgment of the Single Judge Bench, cancelled the selection of an Assistant Professor at M G University.  

A Division Bench consisting of Justice P. B. Suresh Kumar and Justice C. S. Sudha, while setting aside the impugned decision of the Single Judge, quashed the selection of the second respondent and directed the University to appoint the petitioner in the place of the second respondent. It observed that the University is not empowered to make relaxations for one candidate as it would be violative of the right to equality guaranteed under Articles 14 and 16 of the remaining applicants. 

 "insofar as there is a prescription in the application that the particulars of the research publications of the candidates shall be furnished in the application, the University is not empowered to relax the said stipulation in favour of one candidate, for such relaxations would certainly affect the right to equality guaranteed to the remaining applicants under Articles 14 and 16 of the Constitution

The two Writ Appeals that came before the Court relate to the selection for appointment to the post of Assistant Professor in the School of Gandhian Thought and Development Studies (the School) under Mahatma Gandhi University. As per the terms of the notification issued by the university for the selection process, out of the three vacancies, two were reserved for candidates belonging to Other Backward Classes (OBC) and one for candidates belonging to General Category. Nisha Velappan Nair is the petitioner in this case, and Dalit activist and writer Rekha Raj is the second respondent. The petitioner and the second respondent both applied for the selection against the vacancy earmarked for General Category Candidates. 

The University evolved a scheme for evaluation of the candidates on their merits in which 20 makes were set apart for the interview and 80 marks for other different criteria. The petitioner who secured the second rank in the selection was awarded 46.61 marks out of 100, and the second respondent who secured the first rank in the selection was awarded 49.40 marks out of 100. The second respondent was consequently selected and appointed. The selection and appointment of the second respondent were challenged in the writ petition. Aggrieved by the decision of the Single Judge, two appeals were preferred, one by the petitioner and the other by the second respondent.  

When the matter came before the Court, the Counsel appearing for the petitioner, Senior Advocate S. Sreekumar, submitted that there was no justification for the Section Committee to refrain from awarding marks for the PhD of the petitioner merely on the ground that she has claimed exemption from NET on the strength of the same. The Counsel has also argued that the stand taken by the University that Dr S.Radhakrishanan Post Doctoral Fellowship obtained by the petitioner cannot be regarded as an award is per see arbitrary. It was further argued that the second respondent ought not to have been given marks for her PhD as it has nothing to do with the subjects indicated in the notification. It was also contended by the Counsel that the second respondent ought not to have been given marks for her Research Publications as none of the Research Publications was made in UGC-approved journals.

It was pointed out by the Counsel that even though the second respondent was awarded four marks for international research publication merely for the reason that a translation of an article written by her has been published in an international journal, although it is not a journal approved by the UGC. The Counsel appearing for the petitioner contended that marks ought not to have been granted for the translation, especially when the translation is not one made by the second respondent. 

On the contrary, the Standing Counsel for M G University, Advocate Surin George, supported the decision of the Selection Committee. The Standing Counsel for the M G University pointed out that the scheme formulated for awarding marks categorically prescribes that marks are not liable to be awarded for a PhD if such a PhD is a basic qualification. 

The Standing Counsel for the University further contended that with the PhD held by the petitioner, she was ineligible for participating in the selection process and therefore, as far as the petitioner is concerned, PhD is to be construed as the basic qualification, and if that be so, she is not entitled to be awarded marks for the said qualification, and regarding the rest of the contentions raised by the petitioner, the Standing Counsel submitted that it cannot be impugned in a proceeding under Article 226 of the Constitution. 

The Court referred to an Apex Court decision in which the question as to whether relaxation of age or concession in fee would in any manner infringe Article 16(1) of the Constitution was considered, and the Court had observed that the relaxation in age does not in any manner upset the "level playing field" as with age relaxation and the fee concession, the reserved candidates are merely brought within the zone of consideration, so that they can participate in the open competition on merit. Once the candidate participates in the written examination, it is immaterial as to which category the candidate belongs; While considering the question as to whether the Selection Committee was justified in declining marks to the petitioner for her PhD, the bench observed that when an exemption from acquiring NET qualification is granted to candidates who hold PhD for the purpose of creating such a level playing field, the same shall not and cannot tilt the balance in the evaluation of the inter se merits of the candidates. 

The Court observed that it is clear that marks should not have been denied to the petitioner for her PhD merely for the reason that she was exempted from acquiring NET qualification on the strength of her PhD.

Going by the wording of the notification, "if PhD is the basic qualification at entry level, no marks shall be awarded", the Court opined that there is no scope for any doubt that the same was intended and would apply only to a selection process for which the basic qualification is prescribed as a PhD on the subject and since the basic qualification for appointment to the post of Assistant Professor is not PhD, the observed that decision of the Selection Committee to decline marks to the petitioner for her PhD is arbitrary and unreasonable and the petitioner ought to have been awarded six marks for her PhD. 

...if one examines the prescription "if PhD is the basic qualification at entry level, no marks shall be awarded", there is no scope for any doubt that the same was intended and would apply only to a selection process for which the basic qualification is prescribed as a PhD on the subject. Admittedly, the basic qualification for appointment to the post of Assistant Professor is not PhD. We have therefore no doubt in our minds that the decision of the Selection Committee to decline marks to the petitioner for her PhD is arbitrary and unreasonable.

The Court rejected the contention of the petitioner that she should have been granted two marks for the Post Doctoral Fellowship obtained by her, citing that it is for the University to decide as to whether the Post Doctoral Fellowship is to be treated as an award. Similarly, the contention of the petitioner that the second respondent ought not to have been granted marks for her PhD is also rejected by the Court.

However, the Court opined that insofar as there is a prescription in the application that the particulars of the research publications of the candidates shall be furnished in the application, the University is not empowered to relax the said stipulation in favour of one candidate, for such relaxations would certainly affect the right to equality guaranteed to the remaining applicants under Articles 14 and 16 of the Constitution, as such relaxation would enable the candidate concerned to have a march over the remaining candidates who were not told that they are free to make their research publications, the particulars of which are not mentioned in the application, at the time of interview. Therefore, the second respondent is not entitled to more than three marks under the head "Research Publication".

The Court observed that If the marks awarded to the second respondent are reduced by five and the marks awarded to the petitioner are increased by six, the marks of the petitioner would work out to be 52.61, and the marks of the second respondent would only be 44.40 and if that be so, the petitioner should have been selected for appointment in the place of the second respondent.

Thereby, the Court quashed the selection of the second respondent and directed the University to appoint the petitioner in the place of the second respondent. 

Case Title: Nisha Vellapan Nair v. The Mahatma Gandhi University & Anr. and Reka Raj v. Nisha Vellapan Nair & Anr. 

Citation: 2022 LiveLaw(Ker) 455

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