w w w . L a w y e r S e r v i c e s . i n



Dr. V. Madhu v/s Cochin University of Science & Technology (Cusat), Represented by Its Registrar & Another


Company & Directors' Information:- D TECHNOLOGY PRIVATE LIMITED [Active] CIN = U01403MH2015PTC268305

Company & Directors' Information:- COCHIN CO PRIVATE LIMITED [Strike Off] CIN = U74999KL1963PTC002029

Company & Directors' Information:- T & C TECHNOLOGY (INDIA) PRIVATE LIMITED [Active] CIN = U74899DL1995PTC074144

    WP(C). No. 8341 of 2016

    Decided On, 08 March 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A. MUHAMED MUSTAQUE

    For the Petitioner: P. Leelakrishnan, Shyam Krishnan, N.B. Sunilnath, Advocates. For the Respondents: S. Krishnamoorthy, SC, Arjun Santhosh, Brijesh Mohan, Advocates.



Judgment Text

1. The writ petition is filed challenging the appointment of the second respondent as an Associate Professor (Meteorology) in Cochin University of Science and Technology (CUSAT). In the selection, the petitioner was ranked No.2 and the second respondent ranked No.1.

2. The University issued a notification on 17.8.2015 for the above post. The minimum qualifications as prescribed in the notification are as follows:

“i. Good academic record with the Ph.D. degree in the concerned/Allied/relevant disciplines.

ii. Master's Degree in the relevant discipline with at least 55% marks or equivalent grade at the Master's level from an Indian University or equivalent degree from a foreign University.

iii. A minimum of eight years of experience of teaching and/or research in an academic/research position equivalent to that of Assistant Professor in a University. College or Accredited Research institution/industry excluding the period of Ph.D. research with evidence of published work and a minimum of 5 publications as books and/or research/policy papers.

iv. Contribution to educational innovation, design of new curricula and courses, and technology-mediated teaching learning process with evidence of having guided doctoral candidates and research students.

v. A minimum score as stipulated in the Academic Performance indicator (API) Performance Based Appraisal System ((PBAS), set out in the UGC Regulation 2010 and published in the University website.”

3. Selection list was notified on 22.2.2016. Since only two candidates were selected and the vacancy was for one post, the second respondent was appointed in that post.

4. The petitioner would submit that the second respondent is not having the essential qualification to apply for the post. Apart from that, the petitioner also questioned the criteria in awarding the marks. It was also submitted that the second respondent was unduly favoured by awarding points under different heads.

5. Perhaps it is necessary to elaborate the grounds of challenge raised by the petitioner. Clause (iv) stipulates that contribution to educational innovation, design of new curricula and courses, and technology-mediated teaching learning process with evidence of having guided doctoral candidates and research students is a qualification. The said stipulation is in tune with 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, 2010 (hereinafter referred to as the “UGC Regulations”). The argument of the learned counsel Shri Shyam Krishnan appearing for the petitioner was that the second respondent does not have the said qualification. The argument proceeds on the basis that the second respondent was a Scientist and he had no occasion to decide on curricula and courses and also the occasion to guide any doctoral candidates and research students. It was also argued that technology-mediated teaching process with evidence of having guided doctoral research students is an essential qualification to apply for the post of Associate Professor. The learned counsel for the petitioner, referring to various information received under the Right to Information Act rejecting the application on the ground of not possessing the aforesaid qualification, argued that the University ought to have rejected the application of the second respondent at the threshold.

6. The petitioner also would submit that the application itself was defective as the application was not signed by the second respondent. It was submitted that the general instruction forming part of the notification clearly specifies that late and defective applications shall be summarily rejected. Therefore, it was argued that unsigned application could not have been accepted by the University.

7. The selection committee will have to award points based on four criteria vis-a-vis, academic background (20%); research performance based on Academic Performance Indicator (API) score and quality of publications (40%); assessment of domain knowledge and teaching skill (20%) and; interview performance (20%). Consolidated API score of 300 points is required for the purpose of selection to the post of Associate Professor.

8. A candidate will have to fill Performance Based Appraisal System ((PBAS) proforma developed by the University based on API criteria provided in the UGC Regulations. These PBAS would reflect components for awarding points by the selection committee for appointment of Associate Professor under the first three heads, except interview, that is to say, academic background, research performance and domain knowledge and teaching skill. The petitioner's argument is that the second respondent has been wrongly given points for certain publications made by him. It is submitted that the second respondent has been awarded marks for keynote addresses and talks. It is also pointed out that the second respondent was also given 20 points for externally funded research. Another aspect highlighted by the petitioner was in relation to awarding of marks for the fellowship undergone by the second respondent in the Swedish Institute of Space Physics.

9. The petitioner also challenges awarding marks under the domain knowledge and teaching skill. According to the petitioner, 20% of the total points are earmarked for domain knowledge and teaching skill. It was argued that by limiting 10 points teaching skill, the selection committee wanted to induct the second respondent as he had no experience in teaching.

10. In the counter affidavit filed by the University, it is contended that eight years of research experience is sufficient as an essential qualification for Associate Professor. University had not chosen to respond to the challenge made by the petitioner in regard to qualification as referred in clause (iv) of the minimum qualification, except, a general statement that the second respondent possesses necessary qualification. It is to be noted that the petitioner had made an extensive challenge in the writ petition itself based on clause (iv) stipulation of the qualification. It seems the University wants to avoid to take any concrete stand on clause (iv) above. An additional counter affidavit has also been filed by the University. In the additional counter affidavit also the University reiterates the stand that the second respondent being a scientist having more than 11 years, is eligible to apply for the post. The University also had responded to other objections raised by the petitioner in regard to selection of the second respondent. Those responses I need not reiterate here as the same can be considered while considering the issues involved in the later part of the judgment.

11. The second respondent also filed a counter affidavit. In the counter affidavit, he had explained his qualification in regard to the post aspired. He also has produced certain documents to justify his eligibility as per clause (iv) of the minimum qualifications prescribed in the notification. He also stated about supervising researchers. It is specifically stated that Shri Pradeep Kumar Dontha, Junior Research Fellow conducted research under his guidance. He also at the very same time questions petitioner's credentials as well.

12. The petitioner also filed a reply affidavit. In the reply affidavit, the petitioner highlighted rejection of applications submitted by many candidates in respect of other courses. This was on the ground of insufficiency in teaching experience.

13. I shall advert first to the challenge made by the petitioner in regard to the minimum qualification as provided under clause (iv) of the notification. This is quoted again to understand the nature of the Regulation. :

“iv. Contribution to educational innovation, design of new curricula and courses, and technology-mediated teaching learning process with evidence of having guided doctoral candidates and research students.”

14. Before entering into the discussion on this aspect, it is necessary to highlight the nature of procedure prescribed by UGC under the Regulations to select teachers in various categories. UGC has prescribed two criteria; one with reference to prescribed qualifications and, the other with reference to selection based on PBAS. PBAS mainly would reflect in selection committee criteria. This has been broadly divided into different categories like academic background, research performance, assessment of domain knowledge and teaching skill. These components will be awarded points in the selection and along with interview performance. The candidates will be ranked in accordance with the assessment. Thus, all selection committee criteria other than the interview is with reference to pre-existing factors as referable in PBAS. PBAS also is relied upon for API score.

15. Analysis of merits and credentials of a candidate on the basis of PBAS is unique and more scientific. PBAS replaces conventional method of assessment of eligibility like holding written test for qualified candidates. The merit of a candidate based on PBAS would reflect his competence on all aspects that would require one to hold the post. In a post like Associate Professor, a candidate requires to have minimum 300 API points. Perhaps in this background, this Court has to distinguish the differences between qualification and eligibility.

16. Often qualification and eligibility were used interchangeably. It has basic differences. 'Qualification' in the context of appointment means a prescribed ability of a definite nature. 'Eligibility' on the other hand means standards or norms on which qualified candidates are assessed. It refers to suitability based on qualification. One may have a qualification. However, he need not necessarily have eligibility. In Black's Law Dictionary, 'qualification' is defined as possession by an individual of the qualities which is necessary to render him eligible to fill an office or to perform a public duty or function. In Collins Concise Dictionary, refers 'qualification' as an official record of achievement awarded on the successful completion of a course or an ability to perform a job. 'Eligibility' is referred to in Black's Law Dictionary as a qualification for an office or a position. It also refers 'eligible' as fit and proper to be chosen. 'Eligible' is also defined in Collins Concise Dictionary as fit, worthy or qualified, as for office. Thus, it is clear that qualification and eligibility are two different concepts operate in a different domain.

17. On an analysis of the UGC Regulations, it is discernible that API score and PBAS are matters to be considered for eligibility. The norms as referred in template proforma filled by the candidates for PBAS, therefore, will have to be treated as eligibility norms for assessment of points. It itself cannot be treated as a qualification. See Regulation 6.0.1 which states as follows:

“6.0.1 The overall selection procedure shall incorporate transparent, objective and credible methodology of analysis of the merits and credentials of the applicants based on weightages given to the performance of the candidate in different relevant dimensions and his/her performance on a scoring system proforma, based on the Academic Performance Indicators (API) as provided in this Regulations in Tables i to ix of Appendix III.”

Therefore, it is crystal clear that PBAS norms are eligibility norms and not the qualification.

18. Now, coming back to the issue in hand, the clause (iv) as above clearly indicates that it is with reference to the eligibility norms for assessment of score. The clause as referred above refers assessment of the two aspects, namely, contribution to educational innovation, design of new curricula and courses, and; technology-mediated teaching learning process with evidence of having guided doctoral candidates and research students. The reference is not on experience developing curricula and courses so also not on supervising guiding doctoral students. It is all about developing new techniques and tools relatable to curricula and courses and for guiding doctoral candidates. If one lacks this expertise, he will not get points under these heads; still, he will be qualified for the post. Similarly, merely for the reason that a candidate is having teaching experience will not entitle him for the award of points unless it is innovative or design of new curricula and courses as referred under the clause. So also one will not get points for merely guiding doctoral students unless he had deployed technologymediated teaching to guide such students.

19. What would be the educational innovation is a matter cannot be decided by a screening committee. The word 'innovation' is an adjective with reference to quality. It can be assessed only by a selection committee. The selection committee is different from the screening committee which verifies the credentials of candidates. Technologymediated credential means, deployment of technology as an intermediary in the learning process. The learned counsel argued that this clause refers to teaching experience. I am unable to accept this argument. As already adverted, this is an eligibility norm for assessment of points under different heads, referred in selection criteria. In the absence of these proofs, a candidate will not get points based on PBAS on these criteria. Therefore, it can very well be concluded that it is only part of eligibility norms for the assessment of points and not the qualification. This is so clear in the light of clause (iii) prescribed in the qualification. Clause (iii) refers that a candidate, who fulfils eight years of experience as Assistant Professor in the University or as an accredited research institution/industry, is qualified. The reference to the research institution/industry clearly establishes that a candidate without any teaching experience is also qualified to apply. It has to be noted that the qualification has to be in a definite nature. It cannot depend upon variable factors. Variable factors for assessment can be treated only as an eligibility norm and not as a qualification.

20. UGC referred clause as a part of the qualification. Therefore, the argument was that all stipulations conjunctively must exist to become eligible. For the discussions in the foregoing paragraphs, I cannot accept this argument. Merely because clause (iv) is referred along with qualification, it does not mean that it should exist for applying for the post. Clause (v) refers to the minimum API score. This is a verifiable factor for the selection committee and related to PBAS. It is to be noted that a screening committee cannot decisively decide the fulfilment of these stipulations. It can only be assessed by experts, who are included in the selection committee. Clause (v) is also eligibility norms for awarding points and, merely it is referred along with qualification, it cannot be said that it is a part of the qualification. Regulation 6.0.11 of UGC Regulations 2010 refers constitution of Internal Quality Assurance Cell (IQAC). This cell is a record-keeping cell. It will maintain API criteria based on PBAS proforma in respect of existing teachers working in the college or the University. A candidate working in an accredited research institution or in an industry cannot have such an API score. Therefore, clause (v) as far as the candidates, whose API score has not been included in the IQAC can be only with reference to PBAS proforma filled along with the application. Therefore, I have to hold that non-fulfilment of clause (iv) cannot be a reason to reject the applications. Thus, I hold that the second respondent is qualified since the petitioner has no other challenge in regard to other qualifications.

21. The University as well as the second respondent submitted that the application was in order, before the last date of application. I have also perused the original records produced before this Court. I do not find any infirmity with the application. In such circumstances, the challenge on this ground must fail.

22. In regard to other challenges, I find that the petitioner made out a case for interference. Selection to the post of Associate Professor is based on criteria, which is as follows:

“IMAGE”

23. The criteria as above clearly indicate except interview performance all other criteria will have to be assessed based on PBAS. In this case, the selection committee while awarding marks for assessment of domain knowledge and teaching skill, awarded marks separately for teaching skills/presentation based on the presentation before the sub-committee of the Board. The second respondent obtained 6 points; the petitioner obtained 5 points. The second respondent was a scientist. He was never engaged in teaching, in a professional capacity. According to the petitioner, this assessment, in fact, increased the component of the interview. The maximum points that can be awarded in an interview is 20 points. Objectively assessing candidates' skill and performance through a presentation, enlarged awarding points for the interview. I find merit in this argument. The teaching skills can be given points only with reference to past experience. No doubt, evaluation of teaching skill is possible in an interview so as to award marks in interview. (See the second part of Regulation 6.0.1.). Regulation 6.0.1 reads thus:

“In order to make the system more credible, universities may assess the ability for teaching and/or research aptitude through a seminar or lecture in a class room situation or discussion on the capacity to use latest technology in teaching and research at the interview stage. These procedures can be followed for both direct recruitment and CAS promotions wherever selection committees are prescribed in these Regulations.”

(emphasis supplied)

The second respondent could not have been awarded 6 points based on the evaluation of teaching skills under the head of domain knowledge and teaching skill based on his presentation. The difference between the petitioner and the second respondent is only just above 5. The petitioner scored 77.77 and the second respondent scored 82.90. Since this Court had not adverted to other objection under the head academic background and research performance, it is only appropriate that the same be considered by the selection committee.

24. The petitioner had raised various objections in regard to awarding marks on publication, to the second respondent. Similarly, the second respondent also raised counter against the petitioner. It appears that the documents produced by the second respondent along with the counter affidavit to the evidence for he having guided PhD and M.Phil students were not produced along with the application. Though it may be relevant to decide the eligibility nor

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ms, it cannot be relied upon for awarding points since it were not produced along with the application. In such circumstances, I am of the view that it is necessary to reconsider the selection in the light of the discussions as above. As I had already adverted, the awarding of the marks under the evaluation of teaching skill was irregular. The matter will have to be remitted to the selection committee. I think it is necessary to guide the selection committee in regard to awarding of points. 25. Accordingly, the following directions are issued for the guidance of the selection committee: i. The selection committee shall keep in mind the objection raised by the petitioner as well as the second respondent in regard to the awarding of the points under the academic background and research performance. ii. Assessment of domain knowledge skill shall be in strictly with PBAS proforma. It can redraw the criteria in accordance with clause(iv) and also such other criteria as provided in template issued by UGC Regulations. Lacking in any of the criteria as referred in clause (iv) would only dissuade the selection committee in awarding points. iii. The interview marks can also be based on an evaluation of teaching skill, presentation as referred in Regulation 6.0.1. 26. The upshot of discussions is that the selection of the second respondent was not in accordance with UGC Regulations. 27. Therefore, the writ petition is allowed setting aside the selection of the second respondent and the selection committee shall select candidates, who were qualified in accordance with the above observations and findings. The selection committee is directed to complete the entire exercise within a period of two months. The second respondent can continue till selection is completed and his continuation would be subject to the outcome of such selection. If the second respondent is selected again, he shall be given all such service benefits from the date on which he was first appointed. The Registry shall return the original file to the learned Standing Counsel. No costs.
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18-07-2019 Dr. Mohandas & Another Versus The Travancore Cochin Medical Council, Represented by Its Registrar, Thiruvananthapuram & Others High Court of Kerala
10-07-2019 Dr. K.B. Valsan & Another Versus Awesome Designs, Interior Designers & Consultants, Cochin & Another Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
09-07-2019 Cochin Thirumala Devaswom, Gosripuram, Kochi, Represented by Its President, B. Jaganatha Shenoy Versus Athmananda Rao & Another High Court of Kerala
26-06-2019 Apeejay Institute of Technology School of Architecture & Planning & Another Versus Dr. A.P.J. Abdul Kalam Technical University & Others Supreme Court of India
25-06-2019 M/s. Cognizant Technology Solutions India Pvt. Ltd., Chennai Versus The Commissioner of Income Tax, Larger Taxpayer Unit, Nungambakkam High Court of Judicature at Madras
25-06-2019 Hindustan College of Science & Technology Versus All India Council for Technical Education & Another High Court of Judicature at Allahabad
24-06-2019 Sri Nandhanam College of Engineering and Technology, Molagarampatti, Tiruppattur, Rep. by its Chairman, P.M.N. Mohan Krishnaa Versus The State of Tamil Nadu, Rep by its Principal Secretary to Government, Higher Education Department, Secretariat, Chennai & Others High Court of Judicature at Madras
14-06-2019 T.G. Babu Prakash, Deputy Office Superintendent, Office of The Commissioner of Central Excise & Customs, Cochin & Others Versus Union of India, Represented by Its Secretary, Department of Revenue, New Delhi & Others High Court of Kerala
13-06-2019 M/s. Pushkarraj Constructions Pvt. Ltd., Kolkata, Represented by Its Director, Robin Chakraborty & Others Versus The Silppi Constructions & Contractors, Cochin, Represented by Its Managing Partner F. Edison & Others High Court of Kerala
04-06-2019 The Cochin Institute of Science & Technology, Ettappally, Ernakulam, Represented by Its Principal Dr. S.R. Deepa Versus Jisin Jijo & Others High Court of Kerala
03-06-2019 Kiran Murali & Another Versus Computer Sciences Corporation India Pvt. Ltd., (A Company incorporate under the Companies Act, 1956) Having its Office at Softward Technology Park, Electronics Complex, Madhya Pradesh & Another High Court of Judicature at Madras
03-06-2019 The Director, Rajagiri School of Engineering & Technology, Kochi & Others Versus A.P.J. Abdul Kalam Technological University, Represented by Its Registrar, Thiruvananthapuram & Others High Court of Kerala
31-05-2019 Sagnik Pal & Others Versus National Institute of Technology, Agartala & Others High Court of Tripura
28-05-2019 M/s. Teleecare Network India Pvt. Ltd. Versus M/s. Asus Technology Pvt. Ltd. & Others High Court of Delhi
23-05-2019 Kamal Sharma & Others Versus Union of India through Secretary to Government of India, Ministry of Science & Technology, New Delhi & Others Central Administrative Tribunal Chandigarh Bench
14-05-2019 Ram Govind Institute of Technology, Mahuvan, Koderma Versus State of Jharkhand High Court of Jharkhand
09-05-2019 The Dcit, Cochin Versus M/s. Ayyappa Roller Flour Mills Kottayam Ltd, Industrial Development Area, Kochi Income Tax Appellate Tribunal Cochin
08-05-2019 M/s. Ipjacket Technology India Versus M.D. Uttar Pradesh Rajkiya Nirman High Court of Judicature at Allahabad
08-05-2019 M/s. Abad Fisheries, Cochin Versus The Assistant Commissioner of Kochangadi, Income-Tax, Circle-3(1), Kochi-2 Income Tax Appellate Tribunal Cochin
06-05-2019 Anuradha Chakraborty Versus The Union of India, Represented by the Secretary to the Government of India, Ministry of Communication & Information Technology, New Delhi & Others Central Administrative Tribunal Guwahati Bench Guwahati