P.N. Ravindran, J.
1. The University Grants Commission, the respondent in W.P.(C) No. 6157 of 2005, is the appellant in this Writ Appeal. For the sake of convenience, the parties are referred to as they are arrayed in the Writ Petition. The brief facts of the case are as follows:
2. By a notification dated 29.7.1999 published in the Kerala Kaumudi, Mathrubhoomi, Indian Express and the Hindu Dailies, the Manager, Sree Narayana Colleges invited applications from eligible candidates for appointment to the post of Lecturer in Computer Science. The number of vacancies notified was 5. Though the notification is not produced by any of the parties, the newspapers in which the notification was published are available in File No. Acf III/1/006197/2000 006197/2000 produced by the Kerala University. The notification states that the qualifications are as per University Grants Commission/University norms. The qualifications in detail, were however not set out. The files disclose that the Academic Council of the Kerala University had at its meeting held on 19.11.1996 prescribed the qualifications for appointment of teachers in Computer Science/Electronics in the affiliated colleges offering B.Sc. Computer Science/Electronics courses. The Kerala University thereupon issued order No. Acad. AIV/2/2812?95 dated 21.12.1996, the relevant portion of which reads as follows:
The Academic Council at its meeting held on 19.11.96 considered along with the recommendations of the Standing Committee and approved the following qualifications for appointment of teachers in Computer Science/Electronics courses in affiliated colleges offering B.Sc. Computer Science/Electronics courses.
1. Lecturers in Computer Science
(a) First Class B.E./B.Tech. in Computer Science/Computer Engineering.
OR
(b) First Class B.E./B.Tech. in Electronics/Electrical and Electronics Engineering with one year teaching/R &D; Experience in Computer Science/Computer Engineering/Computer Application in Universities/Colleges/Govt./Public Sector Organisations.
OR
(c) M.Sc. (Computer Science)/MCA Computer Science with minimum 55% marks.
NOTE
(i) Candidates under category (a) & (b) will be governed by AICTE norms & will be eligible for promotion only after acquiring Masters degree.
(ii) Candidates under category (c) should have passed NET/SET in their relevant subject or specialization.
3. The petitioners, who possess MCA degree, applied for appointment as Lecturer in Computer Science. They were selected by the selection committee constituted for the purpose and appointed along with one Smt. Nimi Thilak as Lecturer in Computer Science in S.N. College, Cherthala as per Ext.Pl proceedings dated 24.12.1999 issued by the Manager, Sree Narayana Colleges, the proposals to approve the appointment of the petitioners and Smt. Nimi Thilak were forwarded to the Kerala University by the Principal, Sree Narayana College, Cherthala to the Registrar of the Kerala University along with his letter dated 17.2.2000. By Ext.P2 order dated 15.1.2002, the Kerala University, hereinafter referred to as the 'University' for short, approved their appointment subject to the condition that they should pass the National Eligibility Test (NET) within two years as stipulated in letter dated 15.6.1998 sent by the Joint Secretary, University Grants Commission, New Delhi to the Commissioner and Secretary to Government, Higher Education Department, Government of Kerala.
4. By Ext.P2, the appointment of Smt. Nimi Thilak was approved with effect from 29.12.1999. The appointment of the petitioners was approved with effect from 29.12.19*99, 31.12.1999 and 30.12.1999 retrospectively. The petitioners and Smt. Nimi Thilak did not pass the Net within the period of two years stipulated in Ext.P2. They along with Smt. Nimi Thilak submitted a representation dated 28.1.2002 to the Vice Chancellor of the University requesting that they may be exempted from passing the NET. In the said representation, they referred to and relied on Ext.P7 order dated 19.8.2000 issued by the University exempting three Lecturers in Computer Science appointed on 1.6.1998 in Sree Ayyappa College, Eramallikara from passing the NET and approving their appointment with effect from 1.6.1998. They also brought to the notice of the Vice Chancellor of the University that the Mahatma Gandhi University has by Ext.PS order dated 14.3.2001 exempted Lecturers in Computer Science appointed during the period 1997-99 from passing the NET. The request of the petitioners and Smt. Nimi Thilak was forwarded by the Principal, Sree Narayana College, Cherthala to the Registrar of the University who in turn forwarded it to the University Grants Commission along with his letter dated 4.6.2002. The University Grants Commission in ExtP 13 letter dated 4.9.2002 called for certain clarifications. The Registrar of the University thereupon sent a letter dated 20.11.2002 furnishing the details sought in Ext.P 13. This was followed by yet another letter dated 26.7.2003 addressed to the Secretary, University Grants Commission wherein the University Grants Commission was requested to consider the request earlier made. A set of documents sent along with the letter dated 20.11.2002 was once again forwarded. The University Grants Commission thereupon sent Ext.P14 letter dated 2.9.2004 to the University stating that the minimum qualification prescribed by the University stating that the minimum qualification prescribed by the University for the post of Lecturer in Computer Science is not as per the regulations of the University Grants Commission, which stipulated a pass in the NET as one of the qualifications. It was also stated that the University Grants Commission Regulations are mandatory and every University is bound to follow them and that the matter needs clarification.
5. Aggrieved by the delay in the disposal of their representation seeking exemption, the petitioners filed W.P.(C) No. 7675 of 2004. By Ext. P15 judgment delivered on 4.3.2004, this Court disposed of the said Writ Petition, recording the submission made by the Central Government Standing Counsel appearing on behalf of the University Grants Commission that a decision will be taken in the matter within three months from the date of receipt of a copy of the judgment. The University Grants Commission thereafter sent Ext.P 16 letter (wrongly addressed to the Registrar, University of Calicut) stating that at its meeting held on 24.12.2004 exemption has been granted to the petitioners and Smt. Nimi Thilak from passing the NET, subject to the condition that they should clear the NET in the relevant subject within two years from the date of the communication, falling which they will not be eligible for any exemption thereafter. The petitioners thereupon filed W.P.(C) No. 6157 of 2005 challenging Ext.P16 and seeking the following reliefs:
(a) issue a writ of certiorari or other appropriate writ, order of direction calling for the records leading to Ext.P 16 and quashing the same to the extent it incorporates the condition that the petitioners should be acquired NET within two years from the date of communication of Ext.P 16.
(b) issue a writ of mandamus or other appropriate writ, order or direction declaring that in accordance with exempted from NET without any condition since there was no candidates possessing NET at the time of appointment of the petitioners as Lecturers in Computer Science in S.N. College, Cherthala.
(c) Issue a writ of mandamus or other appropriate writ, order or direction declaring that Ext.P 16 order to the extent it incorporate the condition that the petitioners should acquire NET within two years from the date of communication of the order is ultravires and void.
(d) issue a writ of mandamus or other appropriate writ, order or direction directing the 2nd respondent to approve the appointment of the petitioners as Lecturer in Computer Science treating them as exempted from possessing NET ignoring the condition incorporated in Ext.P 16 that the petitioners should acquire NET within two years from the date of communication of Ext.P 16 order.
6. The petitioners challenged the conditional grant of exemption on the ground that it is arbitrary and discriminatory. They pointed out that by Exts.P3 to P6 and Exts.P9 to P11, the University Grants Commission has exempted Lecturers appointed in various colleges affiliated to the University of Calicut from passing the NET without prescribing any time limit, while in the case of the petitioners, the University Grants Commission has granted exemption, limiting it for a period of two years from the date of Ext.P 16 communication. The petitioners also relied on Ext.P7 order dated 19.8.2000 issued by the University according approval for the appointment of three Lecturers in Computer Science in Sree Ayyappa College, Eramallikara without insisting on passing the NET. Reliance was also placed on Ext.P8 order dated 14.3.2001 issued by the Mahatma Gandhi University exempting Lecturers in Computer Science appointed during the period 1997-1999 from passing the NET. The petitioners also challenged Ext.P6 on the ground that it is not in tune with the regulations governing the field. It was contended that the provision in the regulations enabling the University Grants Commission to grant exemption does not contemplate the prescription of any condition. Though under the regulations, exemption can be limited to a specified period in respect of the University for which it is granted, it cannot be interpreted as an exemption in respect of the candidates and limited in duration of time rendering the appointee liable to be thrown out after the said period, it was contended. The petitioners contended that when the University Grants Commission grants exemption to a University for a specified period, candidates who have not passed the NET can be appointed colleges affiliated to that University during the period specified in the order of exemption and that the said appointments would be perfectly. In order and cannot be revoked on the ground that the candidates who were appointed have not passed the NET within the period of exemption. In other words, the contention of the petitioners was that during the period of exemption, a candidates who has not passed the NET, but is otherwise eligible can be validly appointed and that his appointment is liable to be approved unconditionally if it is made during the said period of exemption. It was also contended that candidates appointed during the period of exemption cannot be compelled to pass the NET during the period the exemption is in force.
7. The University Grants Commission resisted the Writ Petition contending inter alia that exemption from passing the NET is granted where (a) no NET examination is held in the subject or (b) NET/SLET qualified/exempted candidates were hot available when the selection was held. It was further contended that the University Grants Commission had at its meeting held on 13.8.2004 laid down the general criteria to be followed by the Exemption Committee while granting exemption and that individual cases were considered based on the said criteria. It was further contended that it was in the light of the norms thus evolved by the University Grants Commission on 13.8.2004 (Ext.R3) that Ext.P 16 order of exemption was passed and that it is open to the University Grants Commission to limit the period of exemption and to insist that those who are granted exemption should pass the NET during the period of exemption.
8. By the judgment under challenge, the learned Single Judge held that the stipulation in Ext.P 16 that the petitioners should pass the NET during the period of exemption is not in tune with Ext.P 12 regulations and is therefore arbitrary. The University Grants Commission had in this appeal canvassed the correctness of the said decision.
9. We have heard Sri. S. Krishnamoorthy, the learned Counsel appearing for the appellant, Sri. K.R.B. Kaimal, the learned Senior Counsel appearing for respondents 1 to 3, Sri. M. Rajagopalan Nair, the learned Standing Counsel appearing for the fourth respondent University and Sri. A.N. Rajan Babu, the learned Counsel appearing for the fifth respondent - Manager. The learned Counsel appearing on either side reiterated the contentions advanced before the learned Single Judge, set out in detail in paragraphs 6 and 7 above.
10. It is clear from the University order dated 21.12.1996 which we have quoted above that candidates who seek appointment as Lecturer in Computer Science should have passed M.Sc. degree in Computer Science or MCA degree in Computer Science and NET/SLET in the relevant subject. The qualification prescribed by the University for the post of Lecturer in Computer Science is in tune with the regulations issued by the University Grants Commission. Regulation 2 of the University Grants Commission (Minimum Qualifications required for the Appointment and Career Advancement of Teachers in Universities and Institutions affiliated to it) Regulations, 2000, hereinafter referred to as the 'Regulations' for short, reads thus:
2. Qualification: No person shall be appointed to a teaching post in University or in any of institutions including constituent or affiliated colleges recognised under Clause (f) of Section 2 of the University Grants Commission Act, 1956 or in an institution deemed to be a University under Section 3 of the said Act in a subject if he/she does not fulfill the requirements as to the qualifications for the subjects as provided in the Annexure.
Provided that any relaxation in the prescribed qualifications can only be made by the University Grants Commission in a subject in which NET is not being conducted or enough number of candidates are not available with NET qualifications for a specified period only. (This relaxation, if allowed, would be given based on sound justification and would apply to affected Universities for that particular subject for the specified period. No individual applications would be entertained:)
Provided further that these regulations shall not be applicable to such cases where selections of the candidates having had the then requisite minimum qualification as were existing at the time through duly constituted Selection Committees for making appointments to the teaching posts have been made prior to the enforcement of these regulations.
(Emphasis supplied).
In the Annexure to the Regulations, the qualifications prescribed for appointment to the post of Lecturer are as follows:
1.3.3 Lecturer
Good academic record with at least 55% of the marks or an equivalent grade of B in the 7 point scale with latter grades 0,A,B,C,D,E and F at Master's degree level, in the relevant subject from an Indian University, or, an equivalent degree from a foreign University.
Besides fulfilling the above qualifications, candidates should have cleared the eligibility test (NET) for Lecturers conducted by UGC, CSIR or similar; test accredited by the UGC.
(Not omitted as it is not relevant in the case on hand)
11. In our opinion, the real question that arises is, what is the scope of the relaxation contemplated under the first proviso to Regulation 2 extracted above and whether ExtP 16 is in tune with the said proviso. Regulations stipulates that no person shall be appointed to a post in a University or in any of its affiliated colleges unless he/she possess the qualifications prescribed in the Annexure to the Regulations. A pass in the NET in the subject concerned is one among the prescribed qualifications. However, the first proviso to Regulation 2 empowers the University Grants Commission to grant relaxation from the prescribed qualifications, if NET is not being conducted in a subject or enough number of candidates with a pass in the NET were not available. The relaxation contemplated is in respect of the University concerned for that particular subject, for the period specified in the order granting relaxation. The first proviso to Regulation 2 also makes it clear that no individual application for relaxation of the prescribed qualifications will be entertained. In the instant case, the selection and appointment of the petitioners is no under challenge. There is no pleading or proof to the effect that the petitioners were selected overlooking qualified hands with a pass in the NET. It is evident from Ext.P 16 that the University Grants Commission has chosen to exempt the petitioners from passing the NET for the reason that no NET qualified hand was available at the time when they were interviewed for selection to the post of Lecturer in Computer Science. On the terms of the first proviso to Regulation 2 quoted above, non-availability of qualified hands with a pass in the NET is one ground for granting exemption. Therefore, in the case on hand, the petitioners have been rightly found eligible for the grant of exemption. Then the only question is whether the stipulation in Ext.P 16 that the petitioners have to pas the NET within the period of exemption is sustainable in the light of the first proviso to Regulation 2 extracted above.
12. While Sri. S. Kxishnamoorthy, the learned Counsel for the appellant would contend that it is open to the University Grants Commission to insist that those who are granted exemption should pass the NET during the period of exemption, Sri. K.R.B. Kaimal, the learned senior Counsel appearing for respondents 1 to 3 would contend that on the terms of the first proviso to Regulation 2, the University Grants Commission cannot impose such a condition. It was contended that the University Grants Commission has no common standard or yardstick and that in Exts.P3 to P6 and Ext.P9 to P11 it had adopted different approach when exemption from passing the NET was granted in the years 2002 and 2003 in respect of teachers appointed in colleges affiliated to the University of Calicut in the subject, Computer Science, We have given our anxious consideration to the submissions made at Bar by the learned Counsel appearing on either side. In our opinion, the relation contemplated under the first proviso to Regulation 2 is not an exemption granted to the candidates who have been chosen by the affiliated colleges or the University to which they are affiliated, from passing the NET in the concerned subject. The relaxation is for the University which has sought relaxation. Such relaxation can be granted only if the NET is not being conducted in a particular subject or if enough number of candidates with a pass in the NET were not available at the time of selection. The first proviso to Regulation 2 does not contemplate a situation where the candidate appointed during the period when the relaxation is in force, either in the University itself or in any of its affiliated colleges, would have to pass the NET or face retrenchment if he or she does not pass the NET during the period the relaxation is in force. The contention of the University Grants Commission that Ext.R3 (which is the same as Annexure A3 produced along with the Writ Appeal) empowers it to prescribe such a condition is in our opinion, plainly untenable and is not contemplated by the Regulations. Annexure A3 proceeds on the erroneous assumption that individual requests for grant of exemption from passing the NET can be entertained. This is clearly prohibited by the first proviso to Regulation 2. The first proviso to Regulation 2 does not contemplate the grant of an exemption. It contemplates only a relaxation in the prescribed qualifications. That relaxation if granted is for the University concerned for the period specified in the order granting relaxation. If during the period the relaxation is in force, a teacher is appointed either in the University in respect of which relaxation is granted or in any of its affiliated or constituent colleges, it would enable the University/constituent colleges/affiliated colleges to appoint a candidate who has not passed the NET in the concerned subject during the period the relaxation is in force. The relaxation contemplated in the first proviso to Regulation 2 is not a relaxation from possessing the basic educational qualifications, but only from passing the NET. The first proviso to Regulation 2 does not contemplated an order of exemption in respect of a particular candidate for a specified period and does not empower the University Grants Commission or any of its committees to impost a condition similar to the one stipulated in Ext.R3 that the candidate should pass the NET during the period of exemption. Regulation 2 does not stipulate that the University Grants Commission may subject to such conditions as it may deem fit to impose, grant relaxation from passing the NET. As the grounds on which relaxation can be granted are set out in the first proviso to Regulation 2 itself, the Exemption Committee and the University Grants Commission are not competent to impose conditions for the grant of relaxation. Though the norms evolved by the Exemption Committee as set out in paragraph 2 of Ex.R3 are in tune with the first proviso to Regulation 2, the conditions stipulated in paragraphs 1 and 3 thereof run counter to the first proviso to Regulation 2. We therefore hold that an order of relaxation issued by the University Grants Commission in exercise of the power conferred on it under the first proviso to Regulation 2 to a particular University would enable the said University or its constituent or affiliated colleges to appoint candidates who have not passed the NET in the concerned subject during the period when the relaxation is in force and that persons appointed during the period when the relaxation is in force, are not required to pass the NET during the said period or thereafter and are not liable to be retrenched, if they do not pass the NET on the cessation of the period of relaxation. It is evident from Ext.P 16 itself that no candidate with a pass in the NET/SLET was available when the petitioners were interviewed, selected and appointed as Lecturers in Computer in Science in Sree Narayana College, Cherthala. Their eligibility for the grant of exemption is also not in dispute. Further, they were appointed in the year 1999 and more than 8 years have passed thereafter. In these circumstances, we are not inclined to remit the matter to the University Grants Commission for a denovo consideration.
13. As noticed by us earlier, under the first proviso to Regulation 2 of the Regulations, relaxation from passing the NET can be granted if NET is not conducted in the concerned subject or if no candidate having a pass in the NET was available when the selection was made. The relaxation can be granted, if either of the two conditions exist. Therefore even if during the relevant time, the NET was being held in Computer Science, relaxation can be granted if no candidate possessing the said qualification participated in the selection process. In the case on hand, a stalemate has arisen due to the wrong exercise of power of relaxation by the University Grants Commission without properly understanding the scope of the power to grant relaxation. Further, it is evident from Exts.P3 to P6 and P9 to P11 that the University Grants Commission has granted exemption to a number of teachers appointed in the colleges affiliated to the University of Calicut from passing the NET without the stipulation that they shall pass the NET within the specified period. Exts.P3, P4, P5 and P6 relate to Lecturers in Computer Science appointed in colleges affiliated to the University of Calicut. In those cases, no such condition as in ExtP 16 has been imposed. It is evident that while issuing Ext.P 16, the University Grants Commission has not taken note of the real purport of the first proviso to Regulation 2.
14. In Principal, King George's Medical College v. Dr. Vishan Kumar Agarwal and Anr. : [1984]1SCR503 the Apex Court held that as the University has granted relaxation to two other candidates for admission to the M.D. course, it would be unfair to treat the respondent differently though he was similarly situated. In the instant case, both the University Grants Commission and the University have adopted a different yardstick in the case of the petitioners. The University Grants Commission has treated (he petitioners differently from the Lecturers named in Exts.P3 and P6 in the matter of grant of exemption from passing the NET. Exts.P3 to P6 relate to Lecturers in Computer Science, appointed in the Colleges affiliated to the University of Calicut. In those cases, the University Grants Commission did not impose a condition similar to the one in Ext.P 16 that they should clear the NET during the period of exemption. Exts.P3 to P6 are in tune with the interpretation which we have placed on the first proviso to Regulation 2 of the Regulations. Likewise, the University has by Ext.P7 exempted three Lecturers in Computer Science appointed on 1.6.1998 in one of its affiliated Colleges (Sree Ayyappa College) from passing the NET and approved their appointment with effect from 1.6,1998. The University also has adopted a different yardstick in the case of the petitioners. Therefore, it is crystal clear that though the petitioners were found to be eligible for grant of relaxation in terms of the first proviso to Regulation 2, the University Grants Commission and the University have treated them differently by imposing a condition that is not prescribed in the Regulations. The condition stipulated in Ext.P 16 that the petitioners shall pass the NET during the period of exemption is ultravires the Regulations. The said stipulation is therefore liable to be declared invalid and unenforceable.
15. In the insant case, the appellants were appointed in December, 1999 after a widely published selection process. They have been discharging their duties for the post more than 8 yearsand have gained experience as Lecturers in Computer Science. It would not therefore be proper to send them out of service at this distance of time. In Ajet Kumar and Ors. v. K.V. Sunil Kumar and Anr. ILR1993 (2) Kerala 765, a Division Bench of this Court following the decision of the Apex Court in Munindra Kumar v. Rajiv Govjil : (1991)IILLJ103SC held that though the selection of the appellants is liable to be set aside, as they were working in the post for a long number of years, the selection should not be disturbed. It was held that their selection should not be annulled in the absence of plea or proof of any malafides, after a long number of years.
16. For the reasons stated above, we hold that the exemption granted to the petitioners by Ext.P 16, from passing the NET in Computer Science shall be treated as an order of relaxation issued under the first proviso to Regulation 2 in respect of the University of Kerala for appointment to the post of Lecturer in Computer Science during the year 1999-2000 when the petitioners were selected and appointed. We also declare that the stipulation in Ext.P 16 that the petitioners should pass the NET within two years from the date of Ext.P16 is ultravires the Regulations and is enforceable. We accordingly direct the University of Kerala to approve the appointment of the writ petitioners as Lecturers in Computer Science without insisting on a pass in the NET, with effect from the dates mentioned in Ext.P2. The writ petitioners would also be entitled to all consequential benefits.
17. The Writ Appeal is disposed of as above. No costs.