Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR THURSDAY, THE23D DAY OF OCTOBER20141ST KARTHIKA, 1936 WP(C).No. 7383 of 2013 (W) --------------------------- PETITIONER(S): --------------- DR.RAJANI R., 'SREEGOUREESAM', T.C.9/980-6; TJRA193C SASTHAMANGALAM P.O., THIRUVANANTHAPURAM - 695 010. BY ADVS.SRI.P.SANJAY SMT.A.PARVATHI MENON RESPONDENT(S): --------------- 1. UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM - 673 635 REPRESENTED BY ITS REGISTRAR.
2. THE UNIVERSITY SYNDICATE COMMITTEE, UNIVERSITY OF CALICUT, KOZHIKODE - 673 635.
3. THE PRINCIPAL, KORAMBAYIL AHAMED HAJI MEMORIAL UNITY WOMEN'S COLLEGE NARUKARA P.O., MANJERI, MALAPURAM DISTRICT PIN - 676 122.
4. THE MANAGER, KORAMBAYIL AHAMED HAJI MEMORIAL UNITY WOMEN'S COLLEGE NARUKARA P.O., MANJERI, MALAPURAM DISTRICT PIN - 676 122. R3,R4 BY ADV. SRI.A.A.ABUL HASSAN R1,R2 BY ADV. SRI.SANTHOSH MATHEW,SC, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON2310-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7383 of 2013 (W) --------------------------- APPENDIX PETITIONER(S)' EXHIBITS ----------------------- EXHIBIT P1. TRUE COPY OF THE APPLICATION SUBMITTED BY PETITIONER. EXHIBIT P2. TRUE COPY OF THE APPOINTMENT ORDER
NO.G1/EST/TS/41-4/11 DATED2206.2011. EXHIBIT P3. TRUE COPY OF THE REPRESENTATION DATED2406.2012. EXHIBIT P4. TRUE COPY OF THE REPRESENTATION DATED3105.2012. EXHIBIT P5. TRUE COPY OF THE REPLY OF THE1T RESPONDENT DATED3007.2012. EXHIBIT P6. TRUE COPY OF THE CLARIFICATION LETTER DATED0904.2012. EXHIBIT P7. TRUE COPY OF THE APPLICATION DATED1412.2012. EXHIBIT P8. TRUE COPY OF THE LETTER DATED2801.2013. EXHIBIT P9. TRUE COPY OF CLARIFICATION ISSUED UNDER THE RTI. EXHIBIT P10. TRUE COPY OF THE DECISION OF THE2D RESPONDENT DATED1511.2012. EXHIBIT P11. TRUE COPY OF THE MINUTES DATED2607.2012. EXHIBIT P12. TRUE COPY OF THE NOTE TO SYNDICATE NO.GAII/A2/2691/2011 DATED2909.2012. EXHIBIT P13. TRUE COPY OF THE COMMUNICATION DATED1506.2013. EXHIBIT P14. TRUE COPY OF THE AMENDED REGULATION2009 EXHIBIT P15: TRUE COPY OF THE NOTIFICATION PUBLISHED IN MATHRUBHOOMI NEWS PAPER DATED2411.2010 EXHIBIT P16. TRUE COPY OF THE AMENDED REGULATION2009DATED117.2009. EXHIBIT P17. TRUE COPY OF THE GOVT. ORDER
G.O.(p) No.209/2013 DATED0705.2013 RESPONDENT(S)' EXHIBITS:NIL ------------------------ //TRUE COPY// P.A TO JUDGE A.K.JAYASANKARAN NAMBIAR, J.
---------------------------------------------------------- W.P.(C).NO.7383 OF2013---------------------------------------------------------- Dated this the 23rd day of October, 2014
JUDGMENT
The petitioner who was duly selected and appointed as Assistant Professor in English in the 4th respondent's College on regular basis, approached this Court through the present writ petition impugning the actions of the 1st respondent University in not approving her appointment. Ext.P10 order of the 2nd respondent, whereby the appointment was not approved, as well as Ext.P13 communication by the 1st respondent to the 3rd respondent, informing that the Syndicate had resolved not to approve the appointment of the petitioner, are impugned in the writ petition.
2. The brief facts leading to the filing of the writ petition are as follows:- The petitioner holds a Bachelor's and Master's Degree in English Literature, a Bachelor's and Master's Degree in Library Science, qualified for the National Eligibility Test in English as per the UGC Scheme and has also obtained UGC JRF & NET in Library and Information Science. She was also awarded a Ph.D. in Library and Information Science. She also has to her credit various publications in the subjects in which she has specialised. She was initially appointed as a Catalogue Assistant in the Kerala W.P.(C).NO.7383 OF2013-2- Legislative Assembly Library with effect from 25.10.2000. In August 2011, she was promoted as Assistant Librarian (Grade -II). Thereafter, she responded to the Notification dated 24.11.2010, published in the vernacular dailies, for appointment to the post of Assistant Professor in English in the 4th respondent's College. The 4th respondent's College is affiliated to the 1st respondent University. Pursuant to a selection process that was adopted by the respondents, she was appointed as Assistant Professor in English in the 4th respondent's College on 22.06.2011. Her appointment however, was not approved by the 1st respondent University. This prompted the petitioner to file Exts.P3 and P4 representations before the Vice Chancellor of the University as also the Registrar of the University. By Ext.P5 communication dated 30.07.2012, the 1st respondent University informed her that the matter regarding approval of her appointment had already been submitted to the Standing Committee of the Syndicate for consideration. According to the petitioner, nothing was heard thereafter and she therefore took recourse to the provisions of the Right to Information Act for the purposes of obtaining necessary documents pertaining to the approval of her appointment. By Exts.P10 dated 15.11.2012, it would appear that the Syndicate of the University chose not to approve the appointment of the petitioner. Thereafter, by Ext.P13 communication dated 15.06.2013, the 1st respondent University W.P.(C).NO.7383 OF2013-3- also informed the Principal of the College that the Syndicate had resolved not to approve the appointment of the petitioner. As already noted, Exts.P10 and P13 are impugned in the writ petition and a direction is sought to the 1st and 2nd respondents to approve the appointment of the petitioner as Assistant Professor by treating her as qualified for the same.
3. A counter affidavit has been filed on behalf of the 3rd and 4th respondents wherein it is pointed out that the selection of the petitioner, as a candidate for the post of Assistant Professor in English in the 4th respondents College, was pursuant to the procedure contemplated under the Calicut University Act whereby a Selection Committee was constituted in terms of the Act, which went through the qualifications of the petitioner and found her qualified and suitable for appointment to the post in question. It is further pointed out that the doubts entertained by the 1st and 2nd respondents, with regard to the entitlement of the petitioner to weighted marks for her M.Phil qualification, were wholly unfounded in view of the fact that the UGC Regulations clearly indicate that the Ph.D. qualification for the purposes of weighted marks, did not have to be in the concerned subject, contrary to what the 1st and 2nd respondents were insisting upon. It is further averred that the Selection Committee that was constituted, with W.P.(C).NO.7383 OF2013-4- the representatives of the Government as well as the University, had rightly awarded 15 marks to the petitioner since she was having the NET qualification together with a Ph.D. qualification. In the statement filed on behalf of the 1st respondent, it is pointed out that as per the Amended Regulations of 2009 of the Calicut University, dealing with the qualification of teachers of private aided Colleges affiliated to the University, it is clearly provided that the basic qualification for appointment to the post of Lecturer is a good academic record with at least 55% of marks at Masters Degree level in the relevant subject and a qualification in the National Eligibility Test conducted by the UGC, CSIR or a similar test accredited by the UGC or a Ph.D. in the concerned subject on or before 31st December, 1993. It is pointed out that the petitioner, while having the Master's Degree qualification in English Literature had a Ph.D. in Library and Information Science and, in as much as this Ph.D. was not in the concerned subject, the selection committee erred in awarding weighted marks to her for the said Ph.D. while assessing her suitability for the post. Referring to Ext.P9 norms governing the awarding of marks under different heads for the purposes of ranking candidates in the Selection list, it is pointed out that the weighted marks for Ph.D. had to be seen in the context of the academic qualifications for which the said marks were awarded and in this sense the weighted W.P.(C).NO.7383 OF2013-5- marks for a Ph.D. qualification could not be viewed divorced of the University Regulations that indicated that the Ph.D. had to be in the concerned subject. It is further contended that, by obtaining 15 marks to which she was not otherwise entitled, the petitioner had effectively been ranked No.2 in the selection list whereas if the said 15 marks were not considered, her ranking would have slipped to the 6th position. As regards the power of the University to review the decision arrived at by the Selection Committee, it is submitted that the Syndicate had resolved not to approve the appointment of the petitioner since it was contrary to the Regulations of the University.
4. I have heard Sri.Sanjay, the learned counsel appearing on behalf of the petitioner and Sri.Santhosh Mathew, the learned counsel appearing for respondents 1 and 2 and Sri.Abul Hassan, the learned counsel appearing on behalf of respondents 3 and 4.
5. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that the main contention of counsel for the petitioner, while impugning Exts.P10 and P13, is that the UGC Regulations of 2009, which were applicable during the relevant period, clearly indicated that the alternate qualification of Ph.D., in lieu of a pass in NET, did not W.P.(C).NO.7383 OF2013-6- have to be in the concerned subject applicable to the post for which the candidate was aspiring. It is his case that the respondent University had placed reliance on their own regulations, which were contrary to the UGC Regulations and, therefore, the action of the respondent University was clearly illegal. It is also pointed out that, insofar as there was no challenge against the appointment of the petitioner by any of the rival candidates, it was not open to the Syndicate of the University to suo motu review the decision, arrived at by the Selection Committee that was constituted in terms of the Calicut University Act for the purposes of selecting the candidates to the post of Assistant Professor. Reliance is placed on Statute 14 of the Calicut University (conditions of service of teachers and members of non-teaching staff) First Statutes, 1979 to contend that the Syndicate of the University, while considering the issue of approval of an appointment to the teaching post, could look into only two aspects namely:- 1. Whether the appointment was in accordance with the staff pattern fix by the University? and 2. Whether the person so appointed was fully qualified for the post? Since there was no residual power vested in the Syndicate of the University, and it is not in dispute that the appointment was in accordance with the staff pattern fixed by the University and the W.P.(C).NO.7383 OF2013-7- petitioner was fully qualified for the post as per the University Statutes, the Syndicate did not have a power to refuse approval of the appointment validly made by the statutorily constituted Committee. It is further pointed out that, at any rate, the decision taken by the Syndicate of the respondent University, as borne out in Exts.P10 and P13, was taken behind the back of the petitioner and without affording her an opportunity of being heard prior to the said decision. Lastly, it is also contended that the petitioner, who had an excellent academic carrier and also a job thereafter for 11 years, had chosen to leave the same for pursuit of a career in the 4th respondent's College. The arbitrary actions of the 1st and 2nd respondents, it is contended, would leave her without any employment and further, she cannot aspire for any other appointment, on account of being over aged. It is also pointed out that the 1st and 2nd respondents had not chosen to serve any copy of the order refusing approval to the petitioner and that Exts.P10 and P13 were obtained by her pursuant to proceedings under the Right to Information Act.
6. Per contra, the learned Standing counsel for respondents 1 and 2 would contend that, the fact that the Ph.D. had to be in the concerned subject and not in any subject, had already been clarified by a Division Bench of this Court in the judgment dated W.P.(C).NO.7383 OF2013-8- 12.08.2014 in W.A.No.1744 of 2013. In the said judgment the Division Bench has clearly found, by considering the provisions of the University Regulations, that the Ph.D. qualification for the purposes of weighted marks had also to be in the same subject as the one that was relevant to the post for which the candidate was aspiring. It is contended, therefore, that in the light of this interpretation, it was apparent that the Selection Committee had patently erred in awarding 15 marks to the petitioner who, admittedly, did not have the Ph.D. in English Literature which was relevant to the post she applied for. Responding to a query as to whether the University had any residual power to go against the findings of the Selection Committee constituted in terms of the Act, the Standing counsel for the respondent University would point to Statute 14 of the Calicut University (conditions of service of teachers and members of non-teaching staff) First Statutes, 1979, to indicate that the members of the teaching staff had to be selected purely on the basis of merit and this was the responsibility of an educational agency. It was in the back drop of this requirement that the provisions of Statute 14, governing approval of appointments by the Syndicate, had to be interpreted. Thus viewed, the power of the Syndicate to refuse an approval on the ground that a person is not fully qualified for the post can be treated as taking within its ambit even a situation where the W.P.(C).NO.7383 OF2013-9- Syndicate acted against a person, who was the beneficiary of weighted marks for a Ph.D qualification that was not contemplated by the University Regulations. It is his contention that the Syndicate was acting within its powers under Statute 14 while refusing approval to the appointment of the petitioner. In the alternative he would also contend that, even if the power of the Syndicate to refuse approval in the instant case could not be traced to the Statute 14, it was nevertheless within the power of the Syndicate to refuse approval in the instant case because, the appointment had to be seen as one made disregarding the Regulations of the University, that accorded primacy to a consideration of the merit of the candidate. As regards the contention of the petitioner with regard to the apparent conflict between the UGC Regulations of 2009 and the University Regulations of 2009 with regard to the qualifications to be possessed as an alternative to a pass in NET, it is contended that, insofar as the University Regulations insist on a strict requirement of the Ph.D. being in the concerned subject, it is virtually a prescription of a higher qualification by the University and not a dilution of standards prescribed by the UGC. Going by the decision of this Court in Biju v. University of Kerala (2008 (1) KLT707, the prescription under the University Regulations cannot be faulted. Lastly, it is also contended that, at any rate, the petitioner W.P.(C).NO.7383 OF2013-10- in the instant case had an alternate remedy against the order refusing approval to her appointment in that it was open to her to prefer an appeal before the University Appellate Tribunal in terms of Section 57 (10) of the Calicut University Act, 1975. It is contended that although the provision provides for an appeal to any person aggrieved by an appointment, the same can be treated even as applicable to a person who has been denied appointment consequent to a refusal of approval.
7. On a consideration of the rival submissions, I find that the interpretation to be placed on the guidelines, issued in connection with the selection of candidates to the post of Assistant Professor, must be in the manner indicated by the judgment of the Division Bench in W.A.No.1744 of 2013 wherein it is stated, with reference to the University Regulations of 2009, that weighted marks in respect of Ph.D. can be granted only to such candidates as have a Ph.D. qualification in the concerned subject. The judgment of the Division Bench is binding of this Court and, therefore a contrary view cannot be taken. The question then arises as to whether, in the absence of any challenge to the appointment of the petitioner by any of the rival candidates, it is open to the University to suo motu review the selection that has been done by a statutorily constituted Selection Committee. In considering this issue, I must W.P.(C).NO.7383 OF2013-11- remind myself of the fact that the Selection Committee is one that is constituted under the Calicut University Act read with Statute 14 of the Calicut University (conditions of service of teachers and members of non-teaching staff) First Statutes, 1979. Under the Act and the First Statutes, various authorities have been conferred specific powers for discharge of the functions allocated to them under the Act and the First Statutes. While the Selection Committee is constituted for the purposes of selection of candidates to various teaching and non- teaching posts under the University, the Syndicate is entrusted with the task of approval of the appointment so made by the Selection Committee. The powers that are conceded to the Syndicate, in connection with the approval of appointments made by the Selection Committee, are clearly enumerated in Statute 14 which reads as under: "14. Approval of appointments: (1) Approval of every appointment to the teaching post shall be made by the Syndicate subject to the condition that the appointment is in accordance with the staff pattern fixed by the university and that the person so appointed is fully qualified for the post. (2) The Deputy Director of Collegiate Education concerned shall verify before making direct payment of salaries as to whether the post for which payment is claimed is in accordance with the staff pattern and workload fixed by the University. Doubtful cases shall be referred to the University for clarification and the correctness of direct payment ensured. (3) In the case of those private colleges coming W.P.(C).NO.7383 OF2013-12- under the Direct Payment Scheme, the Director of Collegiate Education or the Officer authorised by him in this behalf shall verify in consultation with the University as to whether the teaching posts in private college are in excess of the posts sanctioned by the University. However, in the case of incumbents declared as supernumeraries by the University the controlling officers shall ensure that no fresh appointment is made against future vacancies until all the supernumeraries are absorbed against those vacancies. The direct payment of salaries shall not be made to the persons appointed against fresh vacancies, before the absorption of supernumeraries." 8. It is clear from a reading of Statute 14 that while considering the approval of an appointment to the teaching posts, the Syndicate of the University has to see only whether the appointment is in accordance with the staff pattern fixed by the University and whether the person so appointed is fully qualified for the post. Insofar as it is not in dispute that the appointment in the instant case was in accordance with the staff pattern fixed by the University, the question to be looked into is whether the Syndicate was right in refusing approval to the petitioner by treating her as a person who was not fully qualified for the post. In this context, it is relevant to note that the qualification for the post in question is one that is prescribed under the Calicut University Regulations of 2009. It is not in dispute in the instant case that the petitioner has the necessary qualifications for the post in question. W.P.(C).NO.7383 OF2013-13- As to whether the weighted marks obtained by the candidate can be seen as an integral part of the qualification of the candidate for the purposes of Statute 14, I am of the view that the awarding of weighted marks, in the instant case, was in connection with an assessment of suitability of the candidate, rather than the eligibility of the candidate. In that view, therefore, the weighted marks awarded, would not affect the qualification of a candidate for the purposes of Statute 14. The verification to be done by the Syndicate of the University under Statute 14, while considering the approval of an appointment, is limited only to a verification with regard to whether a candidate possesses the qualifications as prescribed under the University Regulations and whether the appointment was in accordance with the staff pattern fixed by the University. Thus in terms of Statute 14, the Syndicate of the respondent University did not have a power to refuse approval to the appointment of the petitioner. My attention has not been drawn to any other provision which would suggest that the University has a residual power with regard to refusal of approval to appointments made by a Statutory Committee. As a creature of the Statute, the Syndicate of the University must necessarily function within the limits laid down by the Statute and in terms of the express powers granted to it under the Statute. In the absence of any power to do so, I am of the view that it was not open to the respondent W.P.(C).NO.7383 OF2013-14- University to suo motu review the decision taken by the Selection Committee to appoint the petitioner to the post of Assistant Professor in the 4th respondent's College. The action of the 1st and 2nd respondents in not approving the appointment of the petitioner as Assistant Professor in the 4th respondent's College, as evidenced by Exts.P10 and P13 are therefore quashed and respondents 1 and 2 are directed to approve the appointment of the petitioner, to the post in question, forthwith, and at any rate, within a period of one month from the date of receipt of a copy of this judgment. The Writ Petition is allowed as above. A.K.JAYASANKARAN NAMBIAR JUDGE mns W.P.(C).NO.7383 OF2013-15- W.P.(C).NO.7383 OF2013-16-