Kerala High Court
Kerala Govt. Law College Teachers Assn. ... vs State Of Kerala And Ors. on 4 October, 2007
Equivalent citations: 2008(1)KLJ106
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, A.K. Basheer
JUDGMENT K.S. Radhakrishnan, J.
1. We are in this case primarily concerned with the question as to whether the 4th respondent has satisfied the criteria laid down by the University Grants Commission in Ext. PI decision dated 27-11 -1990 which has been accepted by the Government vide Ext. P3 order dated 7-10-1999 for the purpose of counting previous service for the purpose of senior scale/selection grade under the career advancement scheme for lecturers.
2. Question as to whether 4th respondent has complied with the conditions laid down in the above mentioned order was ultimately considered by the Government vide Ext. PI 6 order dated 30-3-2002. In paragraph 6 of the order, Government have considered the question as to whether the prior spell of service put in by 4th respondent from 1-1-1986 to 23-8-1989 as Lecturer in the Kerala Law Academy Law College, Thiruvananthapuram can be reckoned as qualifying service for the placement under the UGC Scheme in terms of the criteria prescribed in paragraph (2) of G.O. (MS) No. 125/ 99/H.Edn. dated 7-10-1999 and held in favour of the 4th respondent which was challenged before the learned single Judge. Learned Single Judge found no reason to interfere with the Government Order and aggrieved by the same Kerala Government Law College Teachers' Association and others have come up before us with this appeal.
3. Counsel appearing for both sides raised various contentions for and against Ext. P1 order passed by the Government, correctness of which has to be considered by us in this appeal. Reference may be made to the University Grants Commission's order Ext. P1 dated 27-11-1990 and the conditions to be satisfied by a lecturer for counting his previous service for the purpose of senior scale/selection grade of UGC which are extracted hereunder for easy reference.
1. Previous service without any break as a Lecturer or equivalent in a University, College, national laboratory or other scientific organisations (CSIR/ ICAR, DRDO, UDG etc.) and as a UGC Research Scientist should be counted for placement of Lecturers in Senior Scale/Selection Grade provided that:
a) the post was in an equivalent grade/scale of pay as the post of a Lecturer;
b) the qualifications for the post were not lower than the qualifications prescribed by UGS for the post of Lecturer;
c) the Lecturers concerned possessed the minimum qualification prescribed by UGC for appointment as Lecturers;
d) the post was filled in accordance with the prescribed selection procedure as laid down by the university/State Government.
e) the appointment was not ad hoc or in a leave vacancy of less than one year duration.
2. No distinction should be made with reference to the nature of management of the institution where previous' service was rendered (private/local body/Government) if the above criteria are satisfied.
4. Sri. P.N. Raveendran, counsel appearing for the appellants submitted that condition No. 1(d) has not been satisfied in the case of the 4th respondent and therefore the order passed by the Government Ext. P16 cannot be legally sustainable. Condition No. 1(d) says that a person claiming the UGC placement has to show that the appointing authority has appointed him following the prescribed selection procedure laid down by the University/State Government. Counsel appearing for the 4th respondent submitted that no distinction be made with reference to the nature of management of the institution where previous service was rendered, whether it is private or Government.
5. A Law Academy Law College is a private institution and therefore the burden is on that institution and the 4th respondent to show that the 4th respondent was appointed to the post of Lecturer in accordance with the prescribed selection procedure as laid down by the University/State Government for UGC placement. The Kerala University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statutes 1979 deals with the conditions of service of teachers and non-teaching staff of private colleges other than pension, provident fund, gratuity, insurance age of retirement etc. Chapter 2 of the statutes with conditions of service of teachers in private colleges. Statute 3 says that for making appointments to the posts of teachers by direct recruitment, the posts shall be advertised in two english and two malayalam daily news papers approved by the university giving a minimum period of thirty days for the aspirants to apply. Statute 4 deals with the constitution of selection committee for appointment which says that in order to ensure that appointments of teachers by direct recruitment are on the basis of merit such appointments shall be made by the Educational Agency from panel of three names for every vacancy recommended by a selection committee constituted by the Educational Agency and consisting of two representatives of Educational Agency nominated by it one of whom shall be the Chairman of the Selection Committee, the Principal of the College, the Head of Department in the subject concerned and one expert in the subject nominated by the Vice-Chancellor. Statute 4(3) deals with aided colleges who have entered into a written agreement with the Government for the direct t payment of salaries to the teachers which we are not concerned in this case.
6. Petitioners have asserted that 4th respondent was not appointed following the above mentioned provisions. No document was produced either by the University or by the 4th respondent to show that 4th respondent was appointed after complying with the selection procedure laid down in Statute 3 and 4 of First Statutes 1979. Further Government vide Ext. P9 letter dated 13-4-1993 had rejected the 4th respondents application for placement of UGC Scheme stating that there was no question of reckoning private college service for giving placement in the UGC Scheme to the Law College Teacher. Without referring to that letter, Government have now passed Ext. P16 order dated 30-3-2002, holding that 4th respondent is entitled to get the benefit of UGC placement. With regard to the question as to whether 4th respondent was duly appointed following the 1979 Statute the Government in Ext. PI 6 order has stated as follows:
Criterion 1(d) is the evaluation of the process Of selection laid down by the University. It cannot be insisted that such procedure should be followed by an unaided private college affiliated to the University which has not signed any agreement with the Govt. for direct payment of salary of teaching and non-teaching. Such ari institutio can follow it's own procedure. These contentions are seen admitted by the University in a sworn affidavit filed as the 2nd respondent in OP. No. 20277/98 before the Hon'ble High Court of Kerala. Only if the procedure laid down by the University is applicable to the Kerala Law Academy Law College, the question of it's compliance can arise. The University of Kerala has granted approval for the appointment in question and this has also to be taken into consideration. As such there is no reason to come to a conclusion that criterion 1(d) is not complied with in this case.
7. Stand of the Government is self contradictory. The above quoted portion of the Government Order would clearly indicate that the college had not followed the procedure laid down under First Statutes 1979. On the other hand, Government's stand was that it could follow its own procedure. The only ground on which the Government came to the conclusion that the 4th respondent had satisfied criterion 1(d) was due to the approval granted by the University. Exts. P1 and P3 orders have clearly laid down the conditions which are to be satisfied for UGC placement, which clearly says that the post should have been filled up in accordance with the prescribed selection procedure as laid down by the University/State Government. Granting approval of appointment by the University is not a criterion laid down in Ext. P1 or P3 orders. In fact Ext. P9 order dated 13-4-1993 Government had already rejected the proposal for placement of 4th respondent to UGC Scheme. Ignoring that order, and without even referring to Ext. P9 order, Government have passed Ext. PI6 order. Question as to whether 4th respondent was appointed after following the selection procedure laid down by the University or State Government is a matter within the exclusive knowledge either of the University, the 4th respondent or the College and not within the knowledge of the petitioners. Petitioners have asserted that that the said procedure was not followed and no materials have been produced before us to show otherwise. Under such circumstance we have no hesitation to hold that the Government has committed an error in holding that the appointment of 4th respondent was in due compliance of Ext. P3 Government Order. Further in spite of specific direction given, the UGC has not filed any counter affidavit.
8. We therefore hold that only if it is shown that a private unaided college has followed the procedure laid down by the, First Statute, 1979 or the procedure laid down by the State Government in the matter of filling up the posts of Lecturers, then only they can claim the benefit of Ext. PI order of the UGC and Ext. P3 order of the Government and it is so declared. We are informed that the 4th respondent has already retired from service, so also petitioners 2 and 3 and that the 4th respondent has already received the UGC Scale. In such circumstances we do not propose to make any further direction. Judgment of the learned single Judge is therefore set aside, so also Extp PI 6 Government Order.
Writ Appeal is allowed of as above.