Kerala High Court
S.N. College vs N. Raveendran on 24 October, 2001
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, K. Balakrishnan Nair
JUDGMENT K.S. Radhakrishnan, J.
1. The order of the Kerala University Appellate Tribunal dated 20.6.2001 is preferred by the Manager of S.N. College and O.P. 24581/0 is filled by the Principal of S.N. College, Kollam. First respondent herein approached the University Appellate Tribunal challenging the order dated 1.9.2000 by which the second respondent was appointed as the Principal of S.N. College, Kollam. Tribunal allowed the appeals and set aside the order dated 1.9.2000 and give a direction to appoint the first respondent as Principal of S.N. College, Kollam. Aggrieved by the same these Writ Petitions are preferred.
2. S.N. College is a Special Grade College under the management of S.N. Trust. One Prof. Vijayan had occupied of Principal of S.N. College, Kollam. White he was on leave the second respondent herein was put in charge of the Principal of S.N. College, Kollam. First respondent herein who at that time serving as Principal of Sree Narayana Guru College, Chelannur filed O.P. No. 12665/2000 seeking a direction to the Management to appoint him as Principal of S.N. College, Kollom. Writ Petition was disposed by this Court on 27.6.2000 directing the management to appoint a duly qualified and suitable incumbent of the post of Principal, S.N. College, Kollam within a period of six weeks from the date of receipt of copy of the judgment. Management therefore passed order dated 1.9.2000 promoting the second respondent as Special Grade Principal and posted in the same college. It is that order which was challenged before the Tribunal.
3. Counsel appearing for the first respondent Sri. R. Krishna Raj submitted that University Appellate Tribunal was justified in interfering with the order passed by the Management dated 1.9.2000 by which the second respondent was promoted and appointed as Principal of the Special Grade S.N. College, Kollam. According to him the second respondent does not passess the requisite qualification as laid down in the U.G.C. Scheme of 1998 so as to be appointed as Principal of the Special Grade College Counsel submitted the U.G.C. Scheme of 1998 was implemented by Government of kerala as per GO (P) No. 17/H Edn. dt. 21.12.1999 by which the qualification prescribed for appointment as Principal of Special Grade College is a Masters Degree with atleast 55% marks with Ph.D. or its equivalent qualification with a total experience of 15 years of teaching/research. According to him second respondent did not possess the said qualification. According to the counsel, after the implementation of U.G.C. Scheme 1998 all the college teachers of private college are being paid salary in the pay scale of private teachers prescribed in U.G.C. Scheme of 1998. The payment in the pay scale prescribed by the U.G.C. Scheme of 1998 is effected since U.G.C. Scheme of 1998 was implemented by notification dated 21.12.1999. Counsel made reference to a latter dated 25.11.1999 issued by the University Grantes Commission wherein it was stated that Ph. D. shall remain as the essential qualification for appointment as Principal though those qualifications are not applicable to the incumbents who were appointed as Principals prior to 24.12.1998. Reference was also made to statement made by U.G.C. in C.C.C. 721/2000 wherein it has been categorically stated by the University Grants Commission that in the event of the failure of the University to comply with the UGC Regulations, the UGC can initiate action under the provisions of S. 14 of the UGC Act, 1956 withholding from the University the grants proposed to be made out of the fund of the commission.
4. Counsel also submitted that second respondent was not even qualified to be appointed as Principal even as per qualification existed prior to the implementation of the U.G.C. Scheme of 1998. It was pointed out the selection of the second respondent and certain others were challenged by one Sreedharan, Lecturer, Selection Grade by filing appeal No. 5 of 1992 before the Calicut University Appellate Tribunal. Contenction was that selection made was illegal and irregular and they were not qualified to be appointed as Principal. Selection at that time was conducted by Commissioners. The Tribunal set aside the entire selection and ordered a fresh selection in accordance with law in the light of various observations contained in the said judgment. Aggrieved by the said order of the Tribunal the second respondent herein filed O.P. 6146/94 before this court. This court dismissed the Writ Petition. Second respondent filed W.A. 2042/98 which was heard along with other two appeals. Division Bench did not examine the legality or otherwise of the selection which was set aside by the Tribunal but on an agreed order Writ Appeal was disposed. In other words counsel submitted the illegality found by the Tribunal still stands and consequently this court could examine the question whether second respondent was qualified to the post of Special Grade Principal. Counsel also made reference to the decision of the Apex Court in University of Delhi v. Raj Singh, AIR 1995 SC 336 and submitted that the University is bound to comply with the UGC Regulation framed under the University Grants Commission Act.
5. Counsel appearing for the Management Sri. A.N. Rajan Babu as well as counsel appearing for the second respondent Sri P. Santhosh Kumar submitted that the Tribunal has committed an error in holding the view that the private college affiliated to the University of Kerala is bound to follow the UGC Regulations with regard to the qualification to the post of Principal. Counsel contended going by the University Statutes second respondent was fully qualified to be appointed as Principal of the Special Grade College. Counsel submitted further that the University and management are bound by the decision in W.A. 2042/98 and that subsequently the University of Calciut has already approved the appointment of second respondent as Principal of S.N. College, Alather with effect from 16.11.1992. Counsel further contended that second respondent is senior to the first respondent since his appointment as Principal was approved by the University with effect from 16.11.1992. The management selected and appointed second respondent as Principal in accordance with University Statutes. It is stated that the first respondent was respondent was appointed as Principal only 5.10.1998 and that he was on probation. Management has got a further case that his probhation was terminated and was reverted to the post of Lecturer which is subject matter of another Writ Petition. Counsel appearing for the second respondent submitted that he was fully qualified to be appointed as Principal of the Special Grade College and that the Tribunal has committed a grave error in interfering with the selection process.
6. We will consider the question whether the Management is bound to follow the qualifications prescribed by the UGC Scheme 1998 unless and until suitable amendments are made in the University Statutes. University Grants Commission Act 1956 is enacted under the provisions of Entry 66 of List I of Seventh Schedule to the Constitution. The Central Government later in exercise of powers under S. 26(1)(c) read with S. 14 of the UGC Act framed University Grants Commission (Qualification required of a person to be appointed to the teaching staff of the University and Institutions affiliated to it) Regulations, 1991. The same was notified in the Government of India Gazette on 19th September 1991. Subsequently the Government of India adopted the UGC Scheme of 1998 on the basis of the previous scheme framed under the UGC Act. The Syndicate of the Kerala University held a meeting on 19.10.1990 and considered the question of implementation of the UGC Scheme. Accordingly amendment to the relevant provisions of Statutes/Ordinances/Regulations in the University were made. The Syndicate recommended the amendments to be made in the University Regulations relating to qualifications of teachers in affiliated colleges. The Academic Council of the Kerala University at its meeting held on 10.12.1990 approved the Regulations. Accordingly the qualification prescribed for appointment to the post of Principal in affiliated colleges is as follows: (i) A first class Masters Degree or a Second Class Masters Degree with not less than 55% marks (ii) Appointment to the post of Principal shall be made from among the holders of Posts of Lecturers (selection grade) or Readers in the College in the case of Corporate Management. It is on the basis of the above mentioned regulations the second respondent was appointed as Principal of S.N. College Alathoor.
7. We may indicate that the Government of India vide letter dated 27.7.98 and 6.11.98 informed the State Government of is decision to continue to provide financial assistance to those State Government who wish to adopt and implement the UGC Scheme 1998 including revision of pay scales to College/University teachers/Physical Education Teachers/Librarians in the State subject to the certain terms and conditions. The State Government vide its order dated 2.7.99 decided to accept the revised University Grants Commissions Scheme for revision of pay scales in principle and constituted a committee to work out the details for implementation of the scheme in the State. After accepting the recommendation the State of Kerala issued order GO (P) No. 171/99/HEdn. dated 21.12.1999. The said order also deals with the qualification prescribed for the post of Principal which reads as follows:
PRINCIPAL (PROFESSOR'S GRADE)
1. A Master's Degree with atleast 55% of the marks or its equivalent grade of B in the 7 point scale with latter grades O,A,B,C,D,E&F.
2. Ph. D. or equivalent qualification.
3. Total experience of 15 years of teaching/Research University/College and other institutions of higher education.
PRINCIPAL (READER'S GRADE)
1. Master's Degree with atlest 55% of the marks or its equivalent grade of B in 7 point scale with latter grades O,A,B,C,D,E & F.
2. Ph. D. or equivalent qualification.
3. Total experience of 10 years of teaching/Research in University/Colleges and other institutions of higher education.
The necessary amendments to the effect is yet to be made in the University Statutes. In fact by the above mentioned Government Order the Director of Collegiate Education was empowered to give approval for all appointments and placements in Private Colleges as envisaged in the UGC Scheme. Necessary amendments have to be made in University Statutes and Special Rules wherever necessary to give effect to the stipulations in the Scheme by the Universities concerned and Director of Collegiate Education.
8. S. 57 of the Kerala University Act stipulates that conditions of service of teachers of the affiliated colleges are to be prescribed by the University. As per S. 58 of the Kerala University Act, Teachers of colleges shall possess such qualifications as may be prescribed by regulations by Academic Council. As has already been indicated the said scheme was brought in by the Regulations of the kerala University as per amendment made in the Regulation by academic council on 10.12.1990 which has not been amended yet in line with UGC Scheme. In fact in CCC 721/2000 which was filed in connection with O.P. 12665/2000 State Government filed a statement stating that UGC Scheme was introduced from 11.1.1986 based on the directions from the Government of India. The qualification for the post of Lecturers/Principals etc. of Univerities and Colleges were prescribed by the U.G.C. and Government passed GO(P)171/99/H Edn. dated 21.12.1999 for implementation of the said scheme. Unless and until amendments are effected in the University statutes the same would not be applicable to the private colleges. Management of private colleges are not bound to follow the same.
9. The Apex Court in University of Delhi v. Raj Singh & Ors. (AIR 1995 SC 336) upheld that the validity of the University Grants Commission (Qualifications required of a person to be appointed to the teaching staff of a University and Institutions affiliated to it) Regulations, 1991. It was ordered that the Delhi University was obliged under law to comply with the provisions contained therein and was directed selection of Lecturers strictly in accordance with the said Regulations. While holding so, Apex Court also considered the consequences of non-complying with the U.G.C. Regulations. in this connection it is profitable to refer para. 21 of the said judgment. We may extract the relevant para. 21 of the said judgment.
"The provisions of clause of the said Regulations are, therefore, recommendatory in character. It would be open to a University to comply with the provisions of clause 2 by employing as lecturers only such persons as fulfil the requirement as to qualification for the appropriate subject provided in the schedule to the said Regulations. It would also be open, in specific cases, for the University to seek the prior approval of the U.G.C. to relax these requirements. Yet again, it would be open to the University not to comply with the provisions of clause 2, in which case, in the event that it failed to satisfy the U.G.C. that it had done so for good cause, it would lose its grant from the U.G.C. The said Regulations do not impinge upon the power of the University to select its teachers. The University may still select its lecturers by written test and interview or either. Successful candidate at the basic eligibility test prescribed by the said Regulations are awarded no marks or ranks and, therefore, all who have cleared it stand at the same level. There is, therefore, no element of selection in the process. The University's autonomy is not entrenched upon by the said Regulations."
We may also refer to para. 24 of the judgment wherein Apex Court held as follows:
"Put shortly, the Delhi University is mandated to comply with the said Regulations. As analysed above, therefore, the Delhi University may appoint as a lecturer in itself and its affiliated colleges one who has cleared the test prescribed by the said regulations. Or it may seek prior approval for the relaxation of this requirement in a specific case, or it may appoint as lecturer one who does not meet this requirement without having first obtained the UGC's approval, in which event it would, if a failed to show cause for its failure to abided by the said Regulations to the satisfaction of the U.G.C. forfeit its grant from the U.G.C. If however, it did show cause to the satisfaction of the U.G.C. it not only would not forfeit its grant but the appointment made without obtaining the U.G.C.'s prior approval would stand regularised."
We may indicate it is entirely for the State Government and the University authorities to regulate their affairs and face the consequences of non-compliance with the U.G.C. Regulations, as held by the Apex Court, which we have extracted herein before. We may also indicate since necessary amendments have not been incorporated in the University statutes it cannot be held that the management of affiliated colleges are bound to follow the same. They are governed by the University Act and Statutes. In this connection we may also refer to the decision of the Division Bench of this Court in Joykutty v. State of Kerala, 2000 (3) KLT SN P. 32 wherein this court held that U.G.C. Scheme does not become applicable because of any statutory mandate making it obligatory for the Government and the University to follow the same. It is for the State Government and University Authorities to take steps to carry out necessary amendments in the University Act and Statutes and issue orders accordingly. Since the qualifications prescribed by the U.G.C. were not incorporated in the Statutes the Tribunal was not justified in holding that the selection conducted by the Management on the basis of the existing provisions of the University Act and Statutes is bad in law.
10. The selection and appointment of the second respondent as Principal in S.N. College, Alathur was the subject matter of W.A. 2042/98. Petitioner was not a party to the said judgment but management was a party. So long as that judgment stands management is bound by that judgment. On the basis of that judgment University of Calicut vide its order dated 20.4.1999 has already approved the appointment of second respondent as Principal of S.N. College, Alathur with effect from 16.11.1992. The approval has not been challenged. This Court in this case is not justified in examining the validity or otherwise of those proceedings especially since the said order was passed in pursuance of the order of the Division Bench. Under the above mentioned circumstances we are inclined to allow both these Writ Petitions. We do so.
11. Writ Petitions are accordingly allowed and the judgment of the Tribunal stands set aside.