Kerala High Court
Dr.Anupriya Samuel vs The University Of Kerala on 25 February, 2019
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY ,THE 25TH DAY OF FEBRUARY 2019 / 6TH PHALGUNA, 1940
WP(C).No. 27813 of 2017
PETITIONER:
DR.ANUPRIYA SAMUEL
ASSISTANT PROFESSOR, DEPARTMENT OF ZOOLOGY,
ST.JOHN'S COLLEGE, ANCHAL.
BY ADV. SRI.P.C.SASIDHARAN
RESPONDENTS:
1 THE UNIVERSITY OF KERALA
REPRESENTED BY ITS REGISTRAR, KARIAVATTOM,
THIRUVANANTHAPURAM - 695 024.
2 THE VICE CHANCELLOR
UNIVERSITY OF KERALA,
KARIAVATTOM,THIRUVANANTHAPURAM - 695 034.
3 THE MANAGER
MALANKARA CATHOLIC SYRIAN COLLEGES, SAMANNUAYA
PASTORAL CENTRE, ST.MARY'S CATHEDRAL CAMPUS,
PATTOM, THIRUVANANTHAPURAM - 695 004.
BY ADV. SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF
KERALA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.1.2019, THE COURT ON 25.02.2019, DELIVERED THE
FOLLOWING:
W.P.(C) No.27813 of 2017
2
JUDGMENT
The petitioner was appointed as Lecturer/Assistant Professor in Zoology at the Saint John's College, Anchal on 22.09.2015. The appointment was made by the 3rd respondent pursuant to Ext.P1 notification and on the basis of a selection process conducted by a Staff Selection Committee. On the petitioner's appointment being forwarded for approval to the 1st respondent University, a doubt arose as to whether the petitioner had acquired the requisite qualification of Ph.D as on the date of submission of application. This was for the reason that the date of submission of application was 22.6.2015 and the Syndicate's decision to award Ph.D degree to the petitioner was taken in the Syndicate meeting held on 9.7.2015. According to the petitioner, the University had sought legal opinion on the issue and opinion was to the effect W.P.(C) No.27813 of 2017 3 that the petitioner was fully qualified to apply for the post and that her appointment can be approved, considering her to have been qualified on the last date fixed for the receipt of application. It is submitted that the Standing Committee on Teaching and Non-teaching Staff of the University, which is a Statutory Committee of the Syndicate, had, in the 27 th meeting of the Syndicate held on 12.5.2017, resolved to accept the legal opinion and had placed the matter in the next meeting of the Committee. The Vice-Chancellor did not agree with the decision of the Syndicate and thereupon the matter was considered in the 28th Syndicate meeting held on 13.6.2017, wherein an objection was raised that the Vice- Chancellor can only express his dissent on the resolution of the Syndicate and cannot record the same as 'not agreed to'. The 3rd respondent was thereafter served with Ext.P13 W.P.(C) No.27813 of 2017 4 communication issued by the Registrar of the University stating that the proposal for approval of the petitioner's appointment is rejected. The reasons stated in Ext.P13 communication was that (i) the Full Bench of the High Court, in its judgment dated 23.2.2016 in W.P.(C) No.15739 of 2013, had declared that all selections made after 18.9.2010 have to be in compliance with the U.G.C Regulations, 2010 and
(ii) that the petitioner did not have the requisite qualification for the post at the time of the vacancy. The writ petition is filed seeking to quash Ext.P13 and to direct the respondents to approve the appointment of the petitioner as Assistant Professor in the Department of Zoology from the date of her appointment.
2. With respect to the statement in Ext.P13, based on the Full Bench judgment in W.P.(C) No.15739 of 2013, it is W.P.(C) No.27813 of 2017 5 submitted by the learned counsel for the petitioner that the Syndicate of the University, as per its decision dated 11.8.2017, had resolved that the directions of the Full Bench can be ignored in respect of appointments in the post of Assistant Professors in all colleges affiliated to the University, effected prior to 23.2.2016. It is submitted that the Full Bench decision had been challenged before the Hon'ble Supreme Court and as per order dated 17.7.2018 in Special Leave Petitions (C) Nos.18938 - 18942 of 2017, the Apex Court had declared that the judgment of the Full Bench in W.P. (C) No.15739 of 2013 would be applicable only from the date of the judgment, ie, 23.2.2016. It is hence submitted that, the petitioner having been appointed prior to 23.2.2016, the decision of the Full Bench regarding adoption of the UGC Regulations, 2010 would have no adverse impact on the W.P.(C) No.27813 of 2017 6 appointment.
3. The learned counsel for the petitioner contends that the second reason stated in Ext.P13 is also unsustainable. It is submitted that the petitioner had registered for Ph.D on 30.12.2009 and had submitted her thesis on 22.11.2014, the open defence was conducted on 19.6.2015 and Ext.P9 certificate, certifying that the petitioner had completed all the formalities for award of the Ph.D degree was issued on 20.6.2015. According to the learned counsel for the petitioner, the delay in the Syndicate holding its meeting and awarding Ph.D degree to the petitioner, cannot be to her detriment, especially in the light of Ext.P9 certificate. Therefore, it is contended that the Syndicate decision dated 9.7.2015 awarding Ph.D to the petitioner is not of much consequence. Placing reliance on Exts.P6, P7and P8, it is submitted that in W.P.(C) No.27813 of 2017 7 the regulations of other Universities, the day from which the Ph.D degree would come into effect has been specified. It is submitted that the 1st respondent University having failed to specify as to when the Ph.D degree would come into effect, the only presumption that can be drawn is that the petitioner had acquired Ph.D qualification on the strength of Ext.P9 certificate.
4. The learned Standing Counsel for the University submits that neither Ext.P14 resolution of the Syndicate dated 11.8.2017 or the declaration of the Hon'ble Supreme Court in Special Leave Petitions (C) Nos.18938 - 18942 of 2017 would benefit the petitioner, since the petitioner did not have the qualification required at the time of issuance of Ext.P1 notification. Refuting the contention of the petitioner that Ext.P9 certificate would go to show that the petitioner had the W.P.(C) No.27813 of 2017 8 required qualification of Ph.D as on the last date for receipt of applications, the learned Standing Counsel points out that as per Clause 21 (e) and (f) of the relevant regulations, viz; Regulations Relating To Registration For And The Award Of The Degree of Doctor of Philosophy, the candidate would acquire Ph.D degree only on a decision being taken by the Syndicate. Regulation 21 (e) and (f) of the Regulations Relating To Registration For And The Award Of The Degree of Doctor of Philosophy reads as follows:
"21. Adjudication of the Thesis e. The candidate whose Thesis has been recommended for the award of Ph. D. Degree by all the Adjudicators shall appear for a Viva-Voce Examination for defending his/her Thesis. This Viva-Voce Examination shall normally be conducted by the Chairman of the Board of Adjudicators in the Centre for Research where the candidate worked.
f. The report of the Adjudicators shall be considered by the Syndicate. If the candidate is adjudged W.P.(C) No.27813 of 2017 9 worthy to be awarded the Degree, a resolution to that effect shall be passed by the Syndicate and the candidate shall be admitted to the Ph.D. Degree under prescribed conditions."
5. Clause 21 (f) stipulate that the report of the adjudicators shall be considered by the Syndicate and the Ph.D degree awarded only if the candidate is adjudged worthy to be awarded the degree. This clearly indicates that even if the Board of Adjudicators recommend the award of Ph.D degree to a candidate, the Syndicate can refuse to award the degree if the candidate is not adjudged to be worthy of being awarded with the degree. Therefore, it is clear that, neither acceptance of the thesis nor securing a pass in the viva-voce, would automatically confer Ph.D degree on a candidate. The learned Standing Counsel also submits that, going by the norms and procedure for selection of teachers for appointment in private affiliated colleges, candidates qualified at the time of W.P.(C) No.27813 of 2017 10 submission of application alone should be called for interview and that approval of appointment to the teaching posts will be given by the University, subject to the condition that the appointment is in accordance with the staff strength fixed by the University and that the person appointed is fully qualified to hold the post.
6. In the light of the undisputed fact that the petitioner had not been awarded with her Ph.D degree by the Syndicate as on 22.6.2015, the date on which the petitioner submitted her application or on 23.6.2015, the last date for receipt of applications, it has to be held that the petitioner did not have the prescribed qualification at the time of submission of application and even on the last date fixed for receipt of application. In this context, it may be relevant to consider the decision of the Hon'ble Supreme Court in Rekha Chaturvedi v W.P.(C) No.27813 of 2017 11 University of Rajasthan and others (1993 Suppl.(3) SCC
168), wherein, the Apex Court had laid down the guidelines for future selection process to the post of Assistant Professors in Rajasthan University. Guideline No.(B) in the said judgment, which is relevant for the instant case reads as under:
"The candidates selected must be qualified as on the last date for making applications for the posts in question, or on the date to be specifically mentioned in the advertisement/notification for the purpose. The qualifications acquired by the candidates after the said date should not be taken into consideration, as that would be arbitrary and result in discrimination. It must be remembered that when the advertisement/ notification represents that the candidates must have the qualifications in question, with reference to the last date for making the applications or with reference to the specific date mentioned for the purpose, those who do not have such qualifications do not apply for the posts even though they are likely to acquire such qualifications and do acquire them after the said date. In the circumstances, many who would otherwise be entitled to be considered and may even be better then those who W.P.(C) No.27813 of 2017 12 apply, can have a legitimate grievance since they are left out of consideration."
The settled legal position being thus, Ext.P13, by which the University refused to approve the petitioner's appointment is legal and valid and hence, do not warrant interference Therefore, the challenge against Ext.P13 fails and consequently, the writ petition is dismissed.
Sd/-
V.G.ARUN JUDGE Scl/ W.P.(C) No.27813 of 2017 13 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE 3RD RESPONDENT THE MANAGEMENT ON 20.5.2015.
EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE STAFF SELECTION COMMITTEE.
EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 22.9.2015.
EXHIBIT P4 TRUE COPY OF THE PH.D SUBMISSION CERTIFICATE.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED
11.6.2015.
EXHIBIT P6 TRUE COPY OF THE EXTRACT OF REGULATIONS
OF COCHIN UNIVERSITY OF SCIENCE AND
TECHNOLOGY.
EXHIBIT P7 TRUE COPY OF THE EXTRACT OF REGULATIONS
OF THE KERALA UNIVERSITY OF FISHERIES
AND OCEAN STUDIES.
EXHIBIT P8 TRUE COPY OF THE EXTRACT OF REGULATIONS
OF THE NATIONAL UNIVERSITY OF ADVANCE
LEGAL STUDIES.
EXHIBIT P9 TRUE COPY OF THE CERTIFICATE FOR PH.D
DEGREE IN THE FACULTY OF SCIENCE.
EXHIBIT P10 TRUE THE LEGAL OPINION WHICH IS ALSO
HOSTED IN THE WEBSITE OF THE
UNIVERSITY.
W.P.(C) No.27813 of 2017
14
EXHIBIT P11 TRUE COPY OF THE MINUTES OF THE
SYNDICATE.
EXHIBIT P12 TRUE COPY OF THE PRELIMINARY MINUTES OF
THE 28TH MEETING OF THE SYNDICATE HELD
ON 13.6.2017.
EXHIBIT P13 TRUE COPY OF THE LETTER DATED 30.6.2017
ISSUED BY THE DEPUTY REGISTRAR.
EXHIBIT P14 TRUE COPY OF THE SYNDICATE RESOLUTION.