IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.M. Joseph & A.M. Shaffique, JJ. W.P.(C) No. 2561 of 2009 Dated this the 10th day of April, 2012 Head Note:- Service Law - Experts from outside of the I.C.A.R. System - the engagement of outside expert legitimately includes retired hands from the I.C.A.R. system. Service Law - Allocation of 100% marks for interview - Not Illegal. Service Law - It is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. Service Law - A person having interest in the subject-matter of cause is precluded from acting as a Judge. For Petitioner:-
For Respondents:-
J U D G M E N T K.M. Joseph, J. 1. These two writ petitions arise out of an unsuccessful challenge before the Central Administrative Tribunal to the selection made to the post of Director, Central Institute of Fisheries Technology (C.I.F.T. for short) and Director, Central Marine Fisheries Research Institute (C.M.F.R.I. for short). W.P.(C) No. 2561 of 2009 relates to the challenge to the post of Director, C.I.F.T. while W.P.(C) No. 28670 0f 2009 relates to the challenge to the post of Director, C.M.F.R.I. W.P.(C) No. 2561 of 2009 2. Petitioner was an applicant to the post of Director, C.I.F.T. Ext.P1 is the notification inviting applications for various posts including the post of Director, C.I.F.T. Following were the qualifications prescribed. "3. Director (One post) Qualification Essential: (1) Doctoral degree in Fisheries Technology / Fisheries Science / Marine Biology / Aquatic Ecology/ Zoology / Microbiology / Bio-Chemistry / Biotechnology / Mechanical Engineering applied to fishing, fish processing and related aspects including relevant basic sciences.(ii) & iii) As in Item No.2 (ii) & 1 (iii) above. Desirable: (i) Specialization and experience in harvest/post-harvest technology of fish/ ship design/Marine Engines and scientific reputation in the field of fishing/fish processing technology, (ii) Experience in Research Management with evidence of Scientific leadership, vision/perspective on agricultural research." The selection process involved screening of the candidates by a Screening Committee. The Screening Committee is to follow Score Card for various attributes of the candidates. It is those candidates who secure 50% and above who were called for interview. Petitioner was also called for interview. The Selection Committee, however, ranked the 4th respondent in the first place and 5th respondent in the second position. The petitioner was ranked at the 3rd position. Based on the ranking the 4th respondent came to be appointed as Director. It is the said selection which was the subject matter of challenge before the Tribunal which has repelled the challenge. 3. We heard Sri .V.Sajith Kumar learned counsel for the petitioner and Sri.Jacob Varghese, learned senior counsel for respondents 1 and 2 who lead arguments on behalf of the respondents. The following are the contentions of Sri.V.Sajith Kumar. i) Learned counsel contends that as per Rule 28 of the revised Bye laws of the Indian Council of Agricultural Research Society (I.C.A.R.) existing Bye laws 38 to 42 of the Society relating to recruitment and appointment to various posts in and under the Council will continue to be in force till such time as recruitment Rules to various categories of posts in the Council as provided in Rule 73 in the I.C.A.R. Rules framed are enforced. It is his contention that as per Clause 39 as far as the Interview Board for the post of Directors in various grades at the institute is concerned, it is to consist of Chairman ASRB, Director General of the 2nd respondent or his representative and two to three advisors as members. It is submitted that contrary to the said stipulation admittedly a member of the ASRB also is included in the Interview Board and the same has vitiated the entire selection. Learned counsel would submit that Recruitment Rules were not made. ii) According to the learned counsel, the composition of the Selection committee is to consist of not less than three Advisors drawn from outside Indian Council of Agricultural Research (I.C.A.R.). According to him, however, experts in the impugned selection were actually from within the System. Dr. K.Gopakumar who is alleged to have retired from I.C.A.R. was serving as Chairman of the Research Advisory Committee of C.I.F.T. Dr. Kamal is alleged to have retired from I.C.A.R. as Assistant Director General (Fisheries). In his case it is stated that his field of experience is Biology. iii) The 4th respondent did not possess the necessary qualifications as notified in Ext.P1 which we have extracted. It is pointed out that the 4th respondent did not have Doctoral degree in any of the subjects which are indicated in Ext.P1. On the other hand, she was having Doctorate in Aquatic Biology. It is pointed out that Aquatic Biology is specifically mentioned in connection with specialization in fisheries or related subjects as one of the essential qualifications for the post of Director, C.M.F.R.I. and it is therefore clear that the authorities had the clear idea that Doctoral degree in Aquatic Biology is not to be treated as an essential qualification for the post of Director, C.I.F.T. Yet, the 4th respondent who did not possess the essential qualification for the post of Director, C.I.F.T. has been selected. He would, further, emphasize that pending the writ petition since the 4th respondent decided to take up another employment, vacancy was created in the post of Director, C.I.F.T. and consequently, for the said post application was again invited. In the said notification the authorities included Doctoral decree in Aquatic Ecology as an essential qualification for the post of Director, C.I.F.T. This, according to the learned counsel for the petitioner would conclusively show that the original selection of the 4th respondent on the basis that she had Doctoral degree in Aquatic Biology is palpably unsustainable. iv). The selection was made by adopting the criterion of 100% marks for interview which is impermissible in law. v). The selection procedures specifically contemplated that the members of the Selection Committee must record their individual marks for each of the candidates and it is on the basis of the aggregate of the marks obtained on the basis of the individual marking that the successful candidates were to be selected. However, selection was done on the basis of unanimous evaluation which is illegal. vi). The division of marks ought to have been done on the basis of the attributes, but, this was not done. He submits that the interview was a farce. The attributes which are indicated in Ext.P2 at page 49 of the writ petition was not followed. Respondents followed attributes for the post of Directors of National Institutes/DDG even when candidates like the petitioner were interviewed for the post of Director, C.I.F.T. which is a Research Institute. This has caused prejudice to the petitioner. He would submit that this is sought to be got over by the respondent by highly belated withdrawal of the earlier statements made before the Tribunal which had advanced the case of the petitioner. This procedure was impermissible, he would submit. vii). Learned counsel for the petitioner would submit that the 4th respondent had put forth fake claims which were accepted. Ext.P2 appears to be the guidelines for the screening of applications. It consists of the guidelines, Score Cards and also Major Attributes to be considered by the Screening Committee/Selection Committee in the screening interview. He would submit that, having regard to the requirements under the detailed Score Card the 4th respondent should not have been even sent up for the interview as going by the requirement that only candidates scoring 50% marks would be called for in respect of RMP (Research Management Position), if, actually the materials which are available are objectively considered it can be established that the 4th respondent could not have secured 54 marks allegedly secured by her and she would not have secured the minimum marks required under Ext.P2 for being called for the interview even. We shall consider the arguments in greater detail at the appropriate place in the judgment. viii). As far as the 5th respondent is concerned, he has secured Doctoral degree in Packaging. He has Post Graduation in Food Science and he never worked as Head of Division nor has any experience in Research Management Position. In Ext.P1, Doctoral Degree in Fish Processing and related aspects including relevant basic sciences is undoubtedly one of the essential qualifications. However, learned counsel for the petitioner would pose the question as to how packaging could be considered as fish processing, as indeed the Selection Committee would appear to have considered. 4. Per contra, Sri.Jacob Varghese, learned senior counsel contends as follows: He would submit that while petition was pending consequent upon the 4th respondent taking up another employment a vacancy arose for the post. There is a fresh selection. As per the interim order passed without prejudice to the contention of the petitioner, the petitioner had applied for selection. In the said selection also petitioner was unsuccessful. Sri.Jacob Varghese, learned senior counsel invited our attention to the reliefs sought by the petitioner in the OA in this regard. He would, therefore, in fact, contend that the writ petition has become infructuous. 5. As far as 100% marks being awarded for interview is concerned, he would submit that in Ext.P2 Guidelines itself it is clearly indicated that the final selection for the post of Director is to be made on the basis of allocation of 100% marks for the performance in the interview. He would submit that for a selection to the post of Director, allocation of 100% marks is perfectly legal. Besides the petitioner is estopped having participated in the interview from challenging the allocation of 100% marks. As far as selection on the basis of unanimous evaluation by the members is concerned, he would submit that it is based on the decision taken at the highest level and is therefore in accordance with law. Besides he would also contend that unanimous marking will in fact obviate challenge on the grounds of favoritism and other extraneous considerations. As far as the selection not being made in accordance with the attributes is concerned, he would support the order of the Tribunal and contend that it is only by a mistake that in the pleadings originally a stand was taken which supported the petitioner that attributes which are germane to another post were applied for the Director of C.I.F.T. He would submit that, upon realising the mistake a statement was filed withdrawing the earlier statements and this has been alluded to by the Tribunal. No doubt, the Tribunal has also found that virtually the attributes are more or less the same and therefore no prejudice is caused. As far as the question relating to outside experts is concerned, the stand of the respondents is that with retirement a former employee working under the I.C.A.R. would become an outsider and he is an expert in the field and that there can be no objection to his being considered as an outside expert. He would point out that real experts are needed for making a proper selection. A consistent policy has been followed for earlier selection also under which retired employees of I.C.A.R. System were being called upon to function as outside experts. As far as Dr.Gopakumar is concerned, his presence would not spell out any predisposition in favour of the 4th respondent. Inclusion of member of the ASRB is perfectly legal and he supports the finding of the Tribunal. He would submit that the transitory stage is over and the basis for applying byelaw relied on by the petitioner no longer exists. C.I.F.T. is an institute under the I.C.A.R.. It is an institution dealing with fisheries. The President of the I.C.A.R. is the Central Agricultural Minister. There is a Governing Body under the I.C.A.R.. Recruitment to various posts is done by the ASRB in terms of the guidelines issued from time to time. He would rely on the guidelines to contend that the selection was done legally. He would further contend that as far as post of Director, C.I.F.T. is concerned interview took place on 03-07-2008 and 04-07-2008. Results were announced on 05-07-2008. Petitioner filed complaint only on 21-07-2008. 6. As far as Doctoral degree of Aquatic Biology is concerned which is challenged by the petitioner as not entitling the 4th respondent be treated as qualified, he would submit that actually the degree of the 4th respondent is Doctoral degree in Aquatic Biology and Fisheries. More importantly, he would submit that in matters of this nature there is high level Screening Committee constituting of experts in the field and they have put their heads together and found that the 4th respondent possessed the essential qualifications required under the notification. He would contend that the mere fact that in the subsequent selection made pending the writ petition the qualification of Doctoral degree in Aquatic Biology is also included as one of the essential qualifications for Director, C.I.F.T. would not show that it could not have been comprehended as one of the essential qualification even on the basis of the qualifications prescribed originally for the post of Director for which the 4th respondent was selected. Clearly these are all matters which may not be open to the Court to interfere, he submits. So also he would submit that as far as the 5th respondent is concerned it is not correct to contend that the Doctoral degree in Packaging had nothing to do with processing. He would submit that the subject of processing of fish and packaging cannot so understood that they are completely different. Here he submits that the matter is best left to the wisdom of experts. He would also submit that there is no merit in the contention of the petitioner that the respondents 4 and 5 were not eligible even to be called for the interview. W.P.(C) No. 28670 of 2009: 7. Petitioner was an applicant for the post of Director, C.M.F.R.I. The 5th respondent has been selected. The original application filed by the petitioner stands dismissed. Hence the writ petition. Apart from the other contentions raised in the other writ petition, learned counsel for the petitioner who appears also in the other case would submit as follows: The 4th respondent was a member of the ASRB. His inclusion besides being illegal on the ground that a member of the ASRB cannot be included, a ground common in both the writ petitions, he has a further case that the 4th respondent is biased in favour of the selected candidate, viz., the 5th respondent. According to him, the 4th respondent was the former Director of C.M.F.R.I. and he interfered with the selection process to unduly favour the 5th respondent. It is complained that the 5th respondent was the subordinate of 4th respondent and the 5th respondent is presently in charge of a project worth Rs.2.5 crores handed over by the 4th respondent on his retirement from the C.M.F.R.I. It is contended that the project has become a flop. There is audit objection. There was litigation in which the matter was brought out. Therefore, the inclusion of the 4th respondent was fatal to the selection of the 5th respondent. Apart from the same, he adopts the same contentions which he had advanced in the other case. He has also a contention that two of the experts were actually colleagues of the 4th respondent and the selection was brought about on the basis of his affinity with the other experts and by influencing them. He has also a case that one of the experts/advisors Sri.V.Raveendranathan was an Oceanographer, who did not have even a Doctoral degree. Sri.V.Raveendranathan was a colleague of the 4th respondent at Mangalore Fisheries College and they were good friends. Sri.Raveendranathan was not even eligible to be appointed as Senior Scientist. The 2nd expert Dr.S.A.H.Abidi is also stated to be a person within the I.C.A.R. System. Though he had retired recently, the other applicants are from the I.C.A.R. System and for them he is a mentor. It is also contended that the 5th respondent is a person who even failed to clear the screening for selection as HOD, Molluscan Fisheries Division, Cochin in the year 2005. He was only a senior Scientist in Vishakapatanam unit of C.M.F.R.I. and he is not having any experience in Research management or Administrative experience. 8. Per contra, Sri.Jacob Varghese, learned senior counsel would refute the allegation of bias and also rely on the case law which we shall advert to. Findings on issues common to both the Writ Petitions: i) Inclusion of member of ASRB: The argument of the petitioner is based on Bye law 28 which we have already referred to. No doubt, going by Bye law 39 relied on by the petitioner a member of the ASRB is not contemplated as a member of the Selection Committee. However, the case of the respondents is that his inclusion is based on the decision in accordance with law. The same is produced as Ext.R1(c) produced before this Court. It inter alia reads as follows: "The issue under consideration on the file relates to revising the composition of Selection Committee for making selection to the Research Management Positions. 2. In pursuance of the recommendations of I.C.A.R. Review Committee (Dr.G.V.K.Rao Committee), the composition of Selection Committees for selection of candidates for all Research Management Positions (including the post of Principal Scientists of ARS) was revised by the President, I.C.A.R. /Hon'ble AM under the provisions of By-laws 24 of Rules of Bye-Laws of the I.C.A.R. Society. The composition was intimated to the Chairman, ASRB vide letter dated 17.12.90. The composition was as under: - 1. Chairman, ASRB - Chairman 2. DG, I.C.A.R. or his nominee - Member 3. One Member of ASRB - Member 4. Not less than three advisors drawn from outside the I.C.A.R. System to be nominated by Chairman, ASRB. - Member Thereafter, the matter was apparently discussed and finally the decision is found as follows: 7. The proposal of Chairman, ASRB was considered in a meeting taken by DG, I.C.A.R. with Chairman, ASRB and all the DDGs. Agenda of the above proposal is at S/'X'. Keeping in view the difficulties in getting the Members from the above quarters, it was decided by DG, I.C.A.R. that the composition of the Selection Committee for the RMPs may be kept as contained in the letter dated 17.12.90. The proceedings of the meeting may kindly be seen at S/'Y'. In view of the above, approval of President, I.C.A.R. /Hon'ble AM is solicited to restore the composition of the Selection Committee as contained at in the letter dated 17.12.90, as reproduced at para 2 above." It is stated that it was with approval by the President I.C.A.R.. We are therefore not impressed by the argument of the petitioners that inclusion of the member of the ASRB is legally flawed. ii) What is the scope of the expression experts from outside of the I.C.A.R. System?: I.C.A.R. is a society registered under Central Societies Registration Act. Under it functions various institutions. They include the C.I.F.T. and C.M.F.R.I. No doubt, at first blush, there is merit in the contention of the learned counsel Sri.Sajith Kumar that having regard to the prescription that expert should be from outside the I.C.A.R. System even if a person is retired he may continue to have interest in individuals with whom he may have interacted as a Colleague or superior officer. Further, there is the added dimension that the so called outside experts were continuing to associate with the I.C.A.R. even after retirement. There are two aspects to the matter. Selection is being undertaken in respect of very important Research Positions, for instance, to the post of Directors of two premier institutions. The person who holds the post would indeed be in a position to shape the very destiny of the institution. When selection to such post is involved, therefore, it is of utmost importance that the persons who select are themselves experts meaning thereby that they have thorough knowledge of the requirements of the posts as also the effect of qualifications the candidates may possess. The research papers, books, publications and other material may have to be sifted and appreciated. All this may require specialized expertise. The other aspect is that the experts must be from outside the I.C.A.R. System. One may, no doubt look at this as the ideal way, viz, that not only must he be an expert who can effectively process and help selecting the candidates but also he must have absolutely nothing to do with I.C.A.R. and that it should also mean that he should neither be an existing employee of the institute under the I.C.A.R. and further that he should also not be even a retired hand. But, the problem arises whether it is pragmatic that not only he should be an expert of the type contemplated but he should also not have anything at all to do with the I.C.A.R. either in the past or present. It may not be possible for the authorities to secure such hands. It is no doubt true that this Court has in the decision reported in Ajitha Vs. Mahatma Gandhi University, 2001 (2) KLT 878 has taken the view that Guest Lecturer in Law in the University cannot be treated as an outside expert. It was found that he was drawing remuneration from the University funds and that he was delivering lectures. The concept of outside expert cannot be the subject of universal or absolute interpretation. In this case, the authorities have formulated a policy under which various selections have already taken place in the past under which they have adopted a half way house approach between the ideal and absolute on the one hand, and one which is projected as pragmatic. Where a person is an existing employee under the I.C.A.R. System undoubtedly it cannot be treated as an outside expert. The reasons are far too obvious to require any reiteration. But, when the officer parts ways by virtue of retirement and even when he may be having some projects under the I.C.A.R. System particularly in the field of fisheries with which we are concerned, it may not be so unreasonable an interpretation to place that an outside expert includes a former employee of the I.C.A.R.. There is no case for petitioners that contrary to the contentions of the respondent in selections held earlier also the same concept was not being employed. It is a plausible approach in the circumstance of the case and is distinguishable from the facts available in the decision Ajitha Vs. Mahatma Gandhi University, 2001 (2) KLT 878 and therefore we hold that the engagement of outside expert legitimately includes retired hands from the I.C.A.R. system. However, we would only hasten to observe that atleast in future selections the concerned authorities may explore the possibility of completely doing away with inclusion of even retired hands so as to bring about greater transparency and openness and purity in the matter of selection. ii) Next, we must deal with whether allocation of 100% marks in the interview is illegal? The question of allocation of marks in the interview is a question to be decided with reference to the facts of each case. It is the situation which will dictate the extent of marks to be allocated in the interview. A perusal of case law would clearly show that while for example for admission to educational institutions allocation of high marks for interview is frowned upon, when it comes to selection to high ranking positions or sensitive posts Courts have adopted different yardstick. (See decisions in Anzar Ahmad Vs. State of Bihar, (1994) 1 SCC 150 and Pramodh Vs. State of Kerala, 2002 (3) KLT 729. Therefore, we are of the view that in this case allocation of 100% marks for interview is perfectly justified and not vulnerable to challenge. There is another aspect of the matter. Ext.P2 guidelines has clearly declared that selection to the post in question will be based on allocation of 100% of the marks in the interview. The petitioners with open eyes participated. In such circumstance, petitioners are clearly estopped from turning around and questioning the said criteria. See decision in Dhananjay Malik Vs. State of Uttaranchal, (2008) 4 SCC 171. Hence we repel the said contention. iii) Whether the evaluation of the candidates should have been done by the members of the Selection Committee individually and whether the unanimous selection procedure is vitiated? This question engaged the attention of the Full Bench of the Tribunal to which the matter was referred which has held that procedure is not flawed. The basis of the complaint of the petitioners in this case is the contents of the Hand Book, 2005 produced by the petitioner. It reads as follows. "Procedure of Interview and selections 1. The candidate is interviewed by the advisors after introduction by the Chairman of the Selection Committee. 2. After the candidates are examined, the Chairman informs the Committee members about the score each of them obtained in the screening process. 3. All the original applications are kept before the committee and selection committee members are empowered to see how the score is arrived at by looking into the details given by the candidates. 4. Chairman then compiles the interview score of each candidate from each advisor/member and pools it to draw an average as 'Final Score in Interview'. 5. On the basis of final total marks obtained based of the score of screening and interview 'ranking' is done. 6. The one who ranks first is chosen as the selected candidate. 7. The selection committee may keep waiting list of 0, 1, 2 based on performing marks or even can reject all candidates if not found worth in the interview." 9. Per contra, Sri.Jacob Varghese, learned Senior Counsel would point out that a decision was taken as to the procedure to be followed at the proper level. In this regard he has made available the following reference. The official respondents have produced Ext.R1 (d) along with I.A. No. 194 of 2012 in W.P.(C) 2561 of 2009. Ext.R1 (d) would appear to show that there was a decision to review the Score Card. A Committee was appointed. The Committee has submitted their report. It further shows that the score card was revised first in 2003 and then in 2005 with the approval of the Agricultural Minister. Thereafter, ASRB submitted proposal for reviewing the Score Card stating that certain difficulties were experienced. It was inter alia pointed out that (i) At Senior Scientist/Principal Scientist level it was not reflecting on the quantum of work done resulting in very low general score, (ii). At the RMP level, the difference were not coming as the marks of parameters were narrowly placed. It was as per UPSC pattern wherein short listed candidate is treated equally for interview. It was felt that the Score Card 2007 should exclusively be used only for short listing and the interview marks should be independent of the Score Card. The Sawant committee was constituted which made certain proposal which was modified by the ASRB. Ext.R1 (d) further shows that the Board in addition to the Score Card made two further proposals, (a ) to use the Score Card only for short listing for interview and candidates will be invited in order of merit subject to limit of 45% and 50% cut off marks allotted to the various attributes in the interview for the non-RMP and RMPs respectively. More importantly, (b) reads as follows: (b) at the interview all the candidates will be treated at par and performance of the candidate would be evaluated by the Selection Committee and marks would be given by the Committee collectively out of 100 marks exclusively in the interview. 10. We note from the note of the Section Officer that in their view the final selection of the candidates should not be left completely to the performance in the interview. Ext.R1 (d) further reveals that the Additional Secretary, DARE notes that only in respect of RMP, Board's second proposal may be accepted inter alia. Thereafter, on 9-10-2007 it shows that the proposals have been considered and it is decided with approval of the Agricultural Minister that selection in respect of RMP post may be made on the basis of performance of the candidate at the time of interview. Learned counsel for the petitioner would thereupon contend that the references in the said papers were focused on other issues that is it related to the desirability of allocating 100% marks for the interview. We are of the view that the petitioner may not be justified in canvassing the said contention. A reference to the minutes would show that the draft which was put up was objected to undoubtedly on the ground that 100% marks should not be allocated for interview. However, the authorities' proposal also involved the issue of making a collective marking in the interview. It is the entirety of the proposal, viz., making of the unanimous selection and on the basis of interview alone which must be treated as approved in respect of Research Management Position Post. Therefore, we see no merit in the said contention and it is repelled. iv). Whether the evaluation done by the authorities is flawed for the reason that the attributes related to another post? Undoubtedly, attributes were announced in respect of the post of Director. It is true that, statements were filed indicating that the irrelevant attributes were followed. However, we notice that statement is filed withdrawing the said mistaken statements. Furthermore, attributes have been found by the Tribunal to be more or less of a similar nature. There is considerable similarity between the attributes. We do not think that in the facts of this case particularly in view of the fact that the respondents have specifically owned up their mistake in making the submissions and has taken the stand that the earlier stand was made on a mistaken basis we need consider this as a ground for interference. v). The contentions on the facts of two writ petitions W.P.(C) No. 2561 of 2009-S & W.P.(C) No. 28670 of 2009. Learned counsel for petitioner in W.P.(C) No. 2561 of 2009 contended that before the Tribunal, the petitioner made a request for production of documents relating to the selection. It is the contention of the learned counsel that documents were produced for the perusal of the Tribunal. However, after the matter was admitted by this Court, this Court had facilitated access to vital information and on the basis of the same petitioner would make the following submissions. In Ext.P2 detailed expansion of the attributes under various columns he would contend that the 4th respondent in particular was awarded much more marks than she was entitled to. In Ext.P2, for instance, under clause 'B' 10 marks is the maximum marks allocated and they include one mark for Principal Scientist and half mark for eminent Scientist for each year of service over and above the prescribed requirement for the post applied for. According to the petitioner, the 4th respondent was entitled to get only 8 ½ marks but she has been given 9 marks. Likewise, in respect Clause 'C which relates to experience in the relevant field and research management it is contended that the 4th respondent has been given more marks than she was entitled. Under attribute 'L' which provides for marks one mark each for books published as Author (excluding edited books) and policy paper published in widely circulated journals and maximum of 6 marks is contemplated. It is submitted that the 4th respondent is given maximum of 6 marks. At the same time it is pointed out that the 4th respondent has not given a single book published as Author to her credit. What she had to her credit were edited books. For edited books no marks can be given, runs the argument. It is pointed out that if the marks in respect of 'L' alone are excluded and she has been given 6 marks she would have less than 50 marks which clearly means that she would not secure the minimum marks required to entitle her to even be called for interview. 11. Per contra, learned senior counsel Sri.Jacob Varghese would contend that this is not a contention which was taken actually before the Tribunal. This is met by the learned counsel for the petitioner by pointing out that the petitioner was not in possession of the requisite facts and he became aware of the full facts only after this Court's intervention. Sri.Jacob Varghese would submit that the marks have been given correctly and it is the members of the Screening Committee who are experts who awarded marks. In regard to clause 'B' the complaint of the petitioner is that actual experience as Principal Scientist is four years and eight months. However, that has been rounded of as 9 marks. Sri.Jacob Varghese would point out that it is the generally adopted practice when it is above the half way mark it is rounded of to the next higher mark. Clause "C" reads as under. ------------------------------------------------------------------------------------- Experience in the relevant field and research management A half mark for each of significant contributions in the field of specialization supported by appropriate documents/publications etc.- Maximum of 4 marks. A half mark for each year of experience in a research management position-Maximum of 2 marks. -Maximum of 6 marks. ------------------------------------------------------------------------------------------- Petitioner has no complaint about awarding marks about the 1st part. However, petitioner raised complaint about the 2nd part, viz., half mark for each year of experience in a research management position. According to the petitioner, the 4th respondent did not occupy any research management position. He submits in this regard the 4th respondent actually admitted the same in the counter affidavit filed by her wherein she has stated as follows: "It is submitted that this respondent has not claimed marks based on her experience in RMP against item C of the score card guidelines as alleged by the Petitioner. The 4th respondent has furnished only the factual information relating to her service in the relevant field" It is further stated that the pay scale for both the Principal Scientist and Head of Division is same ie.Rs.16,400-22400 and that she held the position of Principal Scientist for 10 years which includes 8 years as Head, Fishing Technology Division in the same pay scale. As far as clause 'L' is concerned, learned counsel for the respondents made available the evaluation on the basis of the detailed score card guidelines of both the petitioner and the 4th respondent. Apparently, three marks were given for the 4th respondent for books. Going by the claims it would appear that she has put forth claims in respect of published books which were edited books. Though Sri.Jacob Varghese made an attempt to justify the marks in respect of such edited books as falling under category of books authored on the strength of guidelines in respect of the post of Principal Scientist where such edited books also are apparently awarded marks we are of the view that the approach by the Screening Committee in awarding marks in respect of books which are not authored as such by candidates but the only edited may not be justified. No doubt, the learned senior counsel for the respondents would contend that the approach was equal to all candidates, that is to say, they have adopted the same policy in respect of the petitioner also. No doubt, the learned counsel for the petitioner would claim that petitioner is entitled to the marks which were awarded in his own right and that the effect of deletion of members for R4 will be fatal to her. Apart from three marks, apparently three marks were given for policy papers under the category 'L'. However, this aspect need not detain us as we feel that in the ultimate analysis it may not advance the case of the petitioner to the point where he becomes entitled to relief. There are two aspects. Firstly, we will be indulging in an appellate review over the assessment made by experts. Even granting that in a case of palpable departure from the announced norms in the matter of appraisal of the candidate by the concerned Screening Committee/Selection Committee, we can interfere in the first place this aspect did not engage the attention of the Tribunal as the petitioner did not project this dimension as it is projected here before the Tribunal. We are sitting in judicial review of the Tribunal's order. We are also not sitting in appeal over the order of the Tribunal. The Tribunal itself was sitting in exercise of what can be described as supervisory review powers as it is well settled that it is not open to the Tribunal or the Court to sit as an appellate body over the assessment made of the candidates by the authorities concerned. Furthermore, yet another insuperable hurdle. As already noted, the 4th respondent was ranked in the 1st position and the 5th respondent was ranked in the second position. The petitioner came in the third position. Even if the 4th respondent's inclusion for interview is flawed by deducting the marks as claimed by the petitioner, it is not in dispute that the 5th respondent had secured about 80 marks and there is no serious attempt to demonstrate that his being called for interview was in any way vulnerable if the arguments addressed against his evaluation is otherwise meritless. Then even assuming we find merit in the contention of the petitioner in regard to the flawed evaluation of the 4th respondent by the Screening Committee the petitioner cannot claim any relief. Hence, we repel the contention. vi) Whether the evaluation of the 5th respondent is flawed. The main contention as far as the 5th respondent is concerned is that he has only secured Doctoral degree in Packaging and that he had Post Graduation only in Food Science. The stand of the respondents appear to be that essentially Food Packaging is understood as relatable to food processing. There is argument also that this is a matter which is left to the wisdom of experts. 12. We are of the view that there may not be much merit in the contention of the petitioner. Packaging is in fact one of the units coming under the C.I.F.T. In a scientific area like fish processing as to whether it encompasses packaging we must show appropriate deference to the view of the expert body. It is they who would know as to whether the Doctoral degree in Packaging is relatable to processing. It requires high degree of expertise and specialization. This Court cannot claim either. In such circumstances, we reject the said contention. Factual contentions in W.P. (C) No. 28670 of 2009 13. In the writ petition it is inter alia alleged as follows. The respondents have not answered the allegations against the close relationship between the 4th and 5th respondents. It is pointed out that, it is alleged that the 4th respondent had handed over a project worth 2.5 crore to the 5th respondent on his elevation as Member, ASRB which is widely known for its colossal failure among the fishery scientists. It is stated that, it is submitted that the 4th respondent shared the dais and praised the 5th respondent in a function held on 26th April, 2008 at Visakapatnam and that the application of the 5th respondent was pending consideration before the selection committee at that time. In the OA filed by the petitioner what is alleged is inter alia as follows: The 4th respondent is a person who is facing serious allegations and there were investigations regarding activities of the 4th respondent formerly the Director of C.M.F.R.I. He interfered with the selection process with a view to unduly favour the 5th respondent. The 5th respondent was a subordinate of the 4th respondent and the 5th respondent is presently in charge of a project worth 2.5 crore handed over by the 4th respondent on his retirement from the post of Director, C.M.F.R.I. It is stated that, it is learnt that the project became a flop and the authorities lost the money spent for the same. 14. In the writ petition it is also stated that the project of 2.5 crore initiated by the 4th respondent was entrusted to the 5th respondent on his assuming charge as ASRB member, the 4th respondent invited various allegations while working at C.M.F.R.I., Cochin, the purchase of furniture without inviting quotation and various other malafide actions were subjected to judicial review and that the 4th respondent is having a personal agenda of appointing the 5th respondent as his successor to shield his misdeeds. It is petitioner's case that it is learnt that the interview was on 03-07-2008. Annexure A1 is dated 07-07-2008 and it is learnt that the 5th respondent from Vishakapatanam joined at Cochin at 10 AM on 08-07-2008. It is also the case of the petitioner that the present attempt is to cover up the allegations by appointing a suitable person to that post who can save the 4th respondent from such allegations. 15. In the joint reply to the application filed by respondents 1, 2 and 4 before the Tribunal produced as Ext.P13 it is inter alia stated that, since both respondents 4 and 5 belong to the discipline/field of Fisheries, it is quite possible for them to share pleasantries at various official occasions and that this cannot be treated as a close relation. In the reply, in regard to the handing over a project worth 2.5 crore to the 5th respondent on his elevation as Member, ASRB, it is stated that the same has no connection with the selection to the post of Director, C.M.F.R.I., Cochin. About the sharing of dais and praising the respondent No.5 it is stated that the same has no connection with selection to the post of Director. 16. In the rejoinder filed by the petitioner he would state that, the 4th respondent was the Director, C.M.F.R.I. before getting appointed to the post of Member ASRB. It is further stated that he took part in the interview to the seat vacated by him. Still further, he would say that many of the applicants to the post of Director were from C.M.F.R.I., his own institution. It is stated that the petitioner is the only candidate from outside the I.C.A.R. System. 17. The main contention raised against selection of the fifth respondent as Director of C.M.F.R.I. is based on the participation of the fourth respondent. The fourth respondent, undoubtedly, was the former Director of C.M.F.R.I. The pleadings also leave us in, no doubt, that the selected candidate, namely the fifth respondent had worked as a subordinate to the fourth respondent. There was a project running into a few crores undertaken when the fourth respondent was the Director of C.M.F.R.I. It would appear that the fifth respondent was actually working at the Vishakapattanam unit of the C.M.F.R.I. The said project, according to the petitioner, became a flop. It evoked considerable criticism. The Audit raised its eye brows. Litigation followed. Adverse remarks were made. According to the respondents, this Court removed the critical remarks. This is disputed by the learned counsel for the petitioner. At one place in the writ petition it is stated that the project worth 2.5 crore was handed over by the 4th respondent on his retirement from the post of Director, C.M.F.R.I. (paragraph 16). At another place it is stated that the project of 2.5 crore initiated by the 4th respondent was entrusted to the 5th respondent on his assuming charge as ASRB member. (Ground L). Still furthermore, two of the experts are alleged to be on friendly terms with the fourth respondent. All of this put together, has prompted the petitioner to contend that bias vitiated the selection. The learned senior counsel for the respondent would contend that the fourth respondent was an expert in Fisheries. The procedures announced contemplated inclusion of a member of the ASRB as a member of the selection committee. He would further contend that the contention of bias is without any basis even on the facts as emerges from the pleading and materials produced. Learned counsel for the petitioner would contend on the strength judgment of the Apex Court in Dr. G. Sarana Vs. University of Lucknow, (1976) 3 SCC 585 that the presence of a biased member is sufficient to vitiate the entire selection. He further relied on the decision in M. Ariffuddin Vs. D.D. Chitale, 1973 (2) SLR 119 among other case law, to contend that if there is a reasonable likelihood of bias, the selection becomes flawed. In the facts of this case, he submits that applying the legal principles in the matter, the admitted role of the fourth respondent is fatal to the selection. 18. Per-contra, learned senior counsel for the respondent would rely on the following case law: 1) Satya Narain Shukla Vs. Union of India, AIR 2006 SC 2511 2) Durga Devi Vs. State of HP, (1997) 4 SCC 575 3) G.N. Nayak Vs. Goa University, (2002 (2) SCC 712 4) Dalpat Abasaheb Solunke Vs. B.S. Mahajan, (1990) 1 SCC 305 5) Dhananjay Malik Vs. State of Uttaranchal, (2008) 4 SCC 171 In M. Ariffuddin Vs. D.D. Chitale, 1973 (2) SLR 119 a Division Bench of the Andhra Pradesh High Court was dealing with a selection of teaching staff by the Public Service Commission. The Director of Technical Education had nominated the Principal of a College to be present with the Commission at the interview. The said Principal, it appears was in partnership with some of the applicants. One of the contentions taken was the bias attributed to the Principal. The Bench elaborately considered the concept of bias. It noted the principle at common law that any direct pecuniary interest however small disqualifies the adjudicator. The Court found that as Head of the Department, the opinion of the Principal who was in partnership with some of the applicants, was entitled to great weight in his opinion and the likelihood of bias for his partners was reasonably inferred. The Court further took into consideration the human probabilities and the ordinary course of human conduct. S.A.de. Smith in his Book "Constitutional and Administrative Law" (at page 558) observes as follows: "The rule has two main aspects. First, an adjudicator must not have any direct financial or proprietary interest in the outcome of the proceedings. Secondly, he must not be reasonably suspected, or show a real likelihood of bias likelihood of bias…………. may arise from a number of causes, membership of an organisation that is a party to the proceedings; partisanship expressed in extra-judicial pronouncements; the fact of appearing as a witness for a party to the proceeding; personal animosity or friendship towards a party, family relationship with a party, professional or commercial relationships with a party; and so on………………..The test of likelihood of bias must be applied realistically." In Dalpat Abasaheb Solunke Vs. B.S. Mahajan, (1990) 1 SCC 305. the Court, inter alia, held as follows: "It is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise." In the same case, the Court also held as follows: "13. The fourth and the last ground given by the High Court to set aside the appointment of the appellant in CA No.3507 of 1989 is that respondents 4 and 5 to the writ petition were guides of the appellant when he was doing his M.Sc. by Research. We are unable to understand as to how the fact that they were his guides when the appellant was doing his M.Sc. would influence their decision in selecting him, or vitiate the selection made. They must have been guides to many who had appeared for the interview. As senior teachers in the faculty in question, it is one of their duties to guide the students. In fact, very often the experts on the Selection Committees have to be drawn from the teaching faculty and most of them have to interview candidates who were at one or the other time their students. That cannot disqualify them from being the members of the Selection Committees. In fact, as stated by respondent 4 in his affidavit before the High Court, even respondent 2, the aggrieved candidate was also his student. Curiously though the High Court has discarded the said fact by observing that in point of time, the appellant was closer to respondent 4 as a student since the appellant was his student at a later date. It is not necessary to comment further on this reasoning." In G.N. Nayak Vs. Goa University, (2002) 2 SCC 712. The appellant and respondent No.5 were candidates to the post of Professor of Marine Science. The Head of the Department sought the holding of the interview urgently to fill up the said post. In the Note, the appellant was praised by the Head of the Department. The original selection did not result in either the appellant or the fifth respondent being found suitable. There was a further Notification with additional qualifications. In the same, the Head of the Department also participated. The Court held, inter alia, as follows: "No doubt Respondent 2 has, in the note, lavished praise on the performance of the appellant. As the Head of the Department it would be but natural that he formed an opinion as to the abilities of the Readers working under him. It was not Respondent 5's case that Respondent 2's praise of the appellant was unmerited or that Respondent 2 had any extraneous reasons or reason other than the competence of the appellant for selecting the appellant as Professor. It is not possible to infer bias merely because at the previous selection in September 1995 the appellant was found unsuitable………………… " "Bias may be generally defined as partiality or preference. It is true that any person or authority required to act in a judicial or quasi-judicial matter must act impartially. It is not every kind of bias which in law is taken to vitiate an act. It must be a prejudice which is not founded on reason, and actuated by self-interest --whether pecuniary or personal. If a preference is rational and unaccompanied by considerations of personal interest, pecuniary or otherwise, it would not vitiate a decision. If a senior officer expresses appreciation of the work of a junior in the confidential report, it would not amount to bias nor would it preclude that senior officer from being part of the Departmental Promotion Committee to consider such junior officer along with others for promotion. Because of this element of personal interest, bias is also seen as an extension of the principles of natural justice that no man should be a judge in his own cause. Being a state of mind, a bias is sometimes impossible to determine. Therefore, the courts have evolved the principle that it is sufficient for a litigant to successfully impugn an action by establishing a reasonable possibility of bias or proving circumstances from which the operation of influences affecting a fair assessment of the merits of the case can be inferred." No doubt, the appellant and the 5th respondent were Readers in the department. ln Satya Narain Shukla Vs. Union of India, AIR 2006 SC 2511 the appellant challenged the assessment by Officers who have written his C.R dossiers. Malafides was alleged on the basis that the appellant had seriously dissented with some of the policy decisions taken by these officers. The Court, inter alia, held as follows: "Dissent is the essence of democracy and merely because one disagrees another, one cannot jump to the conclusion that the other harbours a grudge against the former." It is difficult to spell out bias or reasonable possibility of bias merely for the reason that the fifth respondent had worked for some time under the fourth respondent. It may be true that after the fifth respondent was appointed, he may be in charge of or continuing the project which was commenced at the time of the fourth respondent. In P.D. Dinakaran (l) Vs. Judges Inquiry Committee, (2011) 8 SCC 380 a Bench of two Judges elaborately considered the case law relating to bias including of foreign courts and proceeded to hold inter alia as follows: "The principles which emerge from the aforesaid decisions are that no man can be a judge in his own cause and justice should not only be done, but manifestly be seen to be done. Scales should not only be held even but they must not be seen to be inclined. A person having interest in the subject-matter of cause is precluded from acting as a Judge. To disqualify a person from adjudicating on the ground of interest in the subject-matter of lis, the test of real likelihood of the bias is to be applied. In other words, one has to enquire as to whether there is real danger of bias on the part of the person against whom such apprehension is expressed in the sense that he might favour or disfavour a party. In each case, the court has to consider whether a fair-minded and informed person, having considered all the facts would reasonably apprehend that the Judge would not act impartially. To put it differently, the test would be whether a reasonably intelligent man fully appraised of all the facts would have a serious apprehension of bias. In cases of non-pecuniary bias, the "real likelihood" test has been preferred over the "reasonable suspicion" test and the courts have consistently held that in deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct. We may add that real likelihood of bias should appear not only from the materials ascertained by the complaining party, but also from such other facts which it could have readily ascertained and easily verified by making reasonable inquiries." We further notice in Lalit Kumar Modi Vs. Board of Control For Cricket in India and Others, (2011) 10 SCC 106 it was inter alia reiterated that there must exist a real danger of bias. 19. It is contended on behalf of the respondents that, actually there are only two members in the ASRB and the 4th respondent was the member who had background in fisheries while the other member was not an expert in fisheries. Learned counsel for the petitioner would respond by saying that there is no requirement or practice that the member of the ASRB should also be an expert in the field with which the selection is concerned and therefore the doctrine of necessity as such which apparently the respondents invoke may have no play so as to displace the case of bias. 20. The view of the respondents that choice of 4th respondent as a member being the person with background with fisheries cannot be faulted. It is a reasonable and fair view to take if the selection process is to be meaningful exercise otherwise. 21. We are of the view that the complaint of bias vitiating selection may not hold good. No doubt, the 4th respondent was the former Director, C.M.F.R.I. There is a unit of C.M.F.R.I. in Visakapattanam and the 5th respondent was also working in the same. It is pointed out on behalf of respondents that after demitting office by the 4th respondent somebody else has taken over charge as Director. The further allegation is that the project was being looked after by the 5th respondent. There is no case of pecuniary bias. In regard to allegations of bias the Court must have regard to the circumstances. We must note that the petitioner would himself say that many of the applicants to the post of Director were from the C.M.F.R.I. and the petitioner was the only candidate from outside the I.C.A.R. System. Therefore, we may notice that there were many applicants who were from the institution, namely C.M.F.R.I. of which the 4th respondent was the Director for some time. The fact that the project worth Rs.2.5 crores was entrusted by the 4th respondent to the 5th respondent on his demitting office as Director or the fact that he spoke highly of the 5th respondent at a meeting do not in our view furnish a foundation for raising allegation of bias. We cannot also ignore the case that the fourth respondent was the only member who had a background in fisheries. The principle of reasonable suspicion cannot apply. We do not think in the circumstances, the petitioner has established a case of real likelihood of bias. We therefore see no merit in the Writ Petitions. Accordingly, they are dismissed. |
