Kerala High Court
Purushothaman V.M vs Mahatma Gandhi University on 27 January, 2011
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 5357 of 2007(K)
1. PURUSHOTHAMAN V.M.,
... Petitioner
Vs
1. MAHATMA GANDHI UNIVERSITY,
... Respondent
2. SANTHIMOL. M.C., GUEST LECTURER IN
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent :SRI.V.A.MUHAMMED, SC, M.G.UNIVERSITY
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :27/01/2011
O R D E R
S. Siri Jagan, J.
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W.P(C) No. 5357 of 2007
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Dated this, the 27th day of January, 2011.
J U D G M E N T
By Ext. P1 notification, the Mahatma Gandhi University invited applications for selection to the post of lecturer in School of Management and Business Studies. The notified post was Lecturer (Finance) reserved for scheduled castes. The petitioner applied pursuant to the said notification, as also the 2nd respondent and others. An interview was held on 3.11.2006. All of them were interviewed. Before the publication of rank list, the petitioner has filed this writ petition challenging the whole proceedings on the ground that there is no post of Lecturer (Finance) sanctioned by the Government and the qualifications prescribed are also not in accordance with the regulations applicable. According to the petitioner, the notified qualifications were Post-graduate degree in Commerce and Management with a pass in National Eligibility Test, whereas as per the University Regulations applicable the candidate should have a Post-graduate degree in Management in the concerned subject. Subsequent to the filing of the writ petition, a rank list was published, in which the 2nd respondent, whose qualification was only M.Com, was ranked No. 1. The petitioner has subsequently got the writ petition amended including a challenge against the selection also. The petitioner seeks the following reliefs:
"i) to issue a writ of certiorari quashing Ext. P1 notification as far as the post of Lecturer (Finance) is concerned;
ii) to declare that the entire selection process to the post of Lecturer (Finance) pursuant to Ext. P1 notification is bad, illegal and unsustainable;
iii) to issue a writ of mandamus directing the 1st respondent to re-notify the post as Lecturer (Management-Finance) and W.P(C) No. 5357/2007 -: 2 :- to conduct a fresh selection process to the said post;
iv) to declare that the selection of 2nd respondent as Lecturer in Mahatma Gandhi University is illegal and therefore she is not entitled to be appointed."
2. The petitioner contends that the Mahatma Gandhi University is yet to frame regulations relating to qualifications of teachers under the University and by an order dated 25.5.1992, the University has decided to adopt the regulations of University of Kerala with effect from 2.10.1983, till they are replaced by the regulations to be made under the Mahatma Gandhi University Act, 1985. Even after 24 years, the University has not chosen to frame regulations of its own and still follows the Kerala University regulations. According to the petitioner, as per the Kerala University regulations relating to qualifications of Lecturers in Management Studies, they should necessarily have Ph.D or Master's Degree in Business Management or must be Fellows of IIMS, ICA or ICWA. The petitioner alleges that the Government has sanctioned only a post of Lecturer in Finance Management as is evident from Government Order dated 25.10.2007. The petitioner therefore submits that the selection to the post of Lecturer (Finance) in the School of Management and Business Studies of the University, that too, with a qualification contrary to the regulations applicable, is clearly vitiated. Apart from the same, the petitioner also challenges the selection process on the ground that there was no scheduled caste member in the selection committee, which is a mandatory requirement as is evident from Ext. P5 UGC notification laying down the norms for appointment of teachers in universities and colleges. According to the petitioner, by Ext. P14, the Mahatma Gandhi University has adopted the UGC scheme and therefore W.P(C) No. 5357/2007 -: 3 :- Ext. P5 is also applicable to selections made by the University. The petitioner has a further contention that persons from outside the State have also been interviewed, which is also not in accordance with the norms insofar as persons recognized as members of the scheduled castes in other States cannot seek reservation benefits as scheduled castes in Kerala. The petitioner would take a further contention that the whole objective or exercise was to unduly favour the 2nd respondent who did not have the necessary qualifications for appointment as a Lecturer in the School of Management and Business Studies.
3. A counter affidavit and an additional counter affidavit have been filed by the 1st respondent, wherein the stand taken is that by Ext. R1(a), the University has fixed the qualifications in the newly created post of Lecturer (Finance) as per which Post- graduate in the concerned subject alone was the requirement along with other qualifications prescribed by the UGC. According to University, Ext. R1(a) decision was taken by the Academic Council in view of the fact that the University was bound to comply with the UGC Regulations in that regard. They would submit that this was done because the Kerala University Regulations did not conform to the UGC Regulations in that regard. It is further submitted that although there is a slight difference between the nomenclature adopted by the Government while sanctioning the post and the Government in their order has sanctioned the post of Lecturer in Finance Management, there is no essential difference between the post of Lecturer (Finance) and Lecturer in Finance Management. According to them, the allegations of mala fides have no basis whatsoever insofar as the qualifications were fixed by Ext. R1
(a) minutes of the meetings of the Academic Council held on W.P(C) No. 5357/2007 -: 4 :- 21.3.2003, much before the University contemplated selection to the said post. Therefore, according to them, the allegation that the University wanted to favour the 2nd respondent is totally unfounded.
4. Regarding the necessity to have a scheduled caste member in the selection committee, they would contend that insofar as the selection was only for scheduled caste candidates, it was not necessary to include a scheduled caste member separately since a scheduled caste member is necessary only when scheduled caste candidates are interviewed along with open category candidates. Regarding the third contention of the petitioner, they would contend that no person who has not been recognized as a scheduled caste in Kerala has been included in the ranked list.
5. The petitioner would contend that the Academic Council cannot by an administrative decision, over-ride the statutory regulations adopted by the University. When the statutory regulations prescribe that Lecturer in Management Studies should have a particular qualification, the Academic Council of the University cannot prescribe a different qualification unless the Regulations are formally amended to that effect after following the prescribed procedure. The petitioner would answer the justification of the University in not having a scheduled caste member in the selection committee, contending that a scheduled caste member is necessary to ensure that no person who is not eligible to be considered as a scheduled caste is considered by the selection committee and not merely to see whether scheduled candidates are assessed correctly.
6. I have considered the rival contentions in detail.
7. It is not disputed before me that the Mahatma Gandhi W.P(C) No. 5357/2007 -: 5 :- University has adopted the Kerala University Regulations relating to qualifications of lecturers and that the Mahatma Gandhi University has not yet framed its own regulations. Nor have they amended the Regulations. Therefore, the Mahatma Gandhi University is bound by the said statutory regulations. In the said regulations, for Lecturer in Management Studies, the qualification prescribed is as follows:
(i) Professor 1. Ph.D. or equivalent research work or fellows of IIMS, ICA, ICWA.
2. Teaching/consulting/professional experience of not less than 10 years.
(ii) Reader 1. Ph.D. or equivalent research work or fellows of IIMS, ICA, ICWA.
2. Teaching/consulting/professional experience of not less than 5 years.
(iii) Lecturer 1. Ph.D. or fellows of IIMS, ICA, ICWA or Master's Degree in Business Management.
2. Professional experience not less than 2 years.
In the case of those who have Master's Degree in Business Management a pass in NET is desirable." In Ext. R1(a), the qualifications prescribed for the post of Lecturer in Finance is as follows:
"4. LECTURER IN FINANCE Essential Qualifications:
(a) Good academic record with at least 55% marks of an equivalent grade of B in the 7 point scale with latter grades, O, A, B, C, D, E, F at Master's Degree level in the W.P(C) No. 5357/2007 -: 6 :- relevant subject from an Indian University, or, an equivalent degree from a foreign University.
Besides filling the above qualifications, candidates should have cleared the eligibility test (NET) for Lecturers conducted by UGC, CSIR or similar test accredited by the UGC.
Desirable:
a) Associate Membership in Institute of Chartered Accountants (CA) or Coast and Works Accounts (ICWA) or Chartered Financial Analyst.
b) Ph.D in Financial Management/Port Folio
Management"
In School of Management and Business Studies, what is taught is Business Management and not merely finance as taught in post-graduate courses in Commerce. So, lecturers in the School of Management and Business Studies should possess the qualification of Master's Degree in Business Management, which should be the barest minimum qualification. The contention of the counsel for the University that it is because the qualification prescribed in the regulations is at variance with the UGC regulations that the University was forced to adopt a new set of qualification, does not appeal to me at all. The UGC Regulations do not say that for Lecturer in Management and Business Studies, Master's Degree in Business Management is not a requisite qualification or that for Lecturer in Finance Management, M.Com. Degree holders can be considered. All what the UGC prescribes is that for appointment as lecturers, academic record with at least 55% marks at Master's Degree level in the relevant subject from an Indian University or a qualification of Degree from a foreign University is the essential qualification. Master's Degree in the relevant subject, in the School of Management and Business Studies is concerned, W.P(C) No. 5357/2007 -: 7 :- can only be Master's Degree in Business Management in the particular subject. Therefore, for teaching Finance Management in the School of Management and Business Studies, I am of opinion that Master's Degree in Business Management in Finance Management can only be the minimum qualification.
Insofar as Ext. R1(a) does not conform to the statutory regulations adopted by the University and Ext. R1(a) cannot be treated as regulations framed in accordance with law, Ext. R1(a) cannot over-ride the statutory regulations. Insofar as the qualifications prescribed in Ext. R1(a) are contrary to the statutory regulations, the statutory regulations should prevail over Ext. R1(a).
8. My above view is supported by the fact that the post sanctioned for the University by the Government is not Lecturer (Finance) but Lecturer in Finance Management. In Ext. R1(c) produced by the University themselves, what the Syndicate has in its meeting on 8.7.2005 resolved was to create a post of Lecturer in Finance Management along with other posts and not a post of Lecturer (Finance). In fact, the nomenclature of the other 5 posts included in Ext. R1(c) are also Lecturer in General Management, Lecturer in Marketing Management, Lecturer in Computer & IT, Reader in Finance Management and Reader in Human Resource Management. That post only has been sanctioned by the Government as evidenced by Ext. P2. The contention of the University that there is no essential difference between the post of Lecturer (Finance) and Lecturer in Finance Management also does not appeal to me. It is not disputed before me that in Business Management Studies, Master's Degree in Business Management with specialization in finance is a degree awarded. Certainly, for teaching management students, W.P(C) No. 5357/2007 -: 8 :- a M.Com. Degree in Finance cannot be a sufficient qualification at all. As such, I am of opinion that the action of the University in creating a post of Lecturer (Finance) and prescribing qualifications for the said post without a Post-graduate degree in Management cannot be sustained at all.
9. My above view would be sufficient to set aside the entire selection process and to direct the University to re-do the selection after re-advertisement. But, since for the new selection also, the procedure to be followed is to be laid down on the question of inclusion of a scheduled caste member in the selection committee, I shall consider the said question also.
10. It is not disputed before me that when the UGC prescribes that wherever scheduled candidates are participating in the selection process, the selection committee should consist of a scheduled caste member as well. The argument of the learned standing counsel for the University is that since all the candidates are scheduled caste members, the scheduled caste member is not a must. In that respect also, I find merit in the contention of the learned counsel for the petitioner. The inclusion of a scheduled caste member in a selection committee is for safeguarding the interests of scheduled caste members in all respects. As rightly pointed out by the learned counsel for the petitioner, the selection committee may have to decide the question as to whether a particular person belongs to a scheduled caste at all. It is necessary to have a scheduled caste member to point out deficiencies in that regard to the other members of the selection committee. Therefore, I am satisfied that the selection committee should have consisted of a scheduled caste member as well as laid down by the UGC in Ext. P5 norms.
W.P(C) No. 5357/2007 -: 9 :-
11. For all the above reasons, the selection, which is the subject matter of this writ petition, is set aside including the rank list. The University shall re-advertise the post of Lecturer in Finance Management as sanctioned by the Government with the qualifications prescribed for the post as per the regulations applicable and conduct the selection afresh, in accordance with the above findings.
The writ petition is allowed as above.
Sd/- S. Siri Jagan, Judge.
Tds/