Kerala High Court
Dr.P.Prasad vs The Central University Of Kerala
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
THURSDAY,THE 28TH DAY OF NOVEMBER 2013/7TH AGRAHAYANA, 1935
W.P.(C).No.34368 of 2011 (U)
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PETITIONER:-
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DR.P.PRASAD, AGED 37 YEARS, S/O.JAYARAJAN,
ASSOCIATE PROFESSOR,
DEPARTMENT OF COMPARATIVE LITERATURE,
CENTRAL UNIVERSITY OF KERALA, KASARAGOD DISTRICT.
BY ADVS.SRI.K.R.B.KAIMAL (SENIOR ADVOCATE)
SRI.M.P.SREEKRISHNAN.
RESPONDENTS:-
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1. THE CENTRAL UNIVERSITY OF KERALA,
REPRESENTED BY THE REGISTRAR,
VIDYA NAGAR, KASARAGOD, KERALA - 671 123.
2. THE VICE CHANCELLOR,
CENTRAL UNIVERSITY OF KERALA, VIDYANAGAR, KASARAGOD,
KERALA - 671 123.
3. THE REGISTRAR,
CENTRAL UNIVERSITY OF KERALA, VIDYANAGAR, KASARAGOD,
KERALA - 671 123.
* ADDITIONAL RESPONDENTS 4 & 5 IMPLEADED:
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ADDL.R4. DR.SAJI MATHEW,
ASSISTANT PROFESSOR IN COMPARATIVE LITERATURE,
SCHOOL OF LETTERS, MAHATMA GANDHI UNIVERSITY,
P.d. HILLS PO, KOTTAYAM, PIN - 686 560,
RESIDING AT MUNJANATT HOUSE,
NALPATHIMALA, PO: ATHIRAPUZHA,
KOTTAYAM, PIN - 686 562.
W.P.(C).NO.34368 OF 2011-U
- 2 -
ADDL.R5. DR.RAJAN.C,
1/1055, CHATHOTH HOUSE, UDAYANAGAR - 9TH CROSS,
AYYANTHOLE, THRISSUR, PIN 80 003.
* ADDITIONAL RESPONDENTS 4 AND 5 ARE IMPLEADED AS PER
ORDER DATED 14.02.2012 IN I.A.NO.2173 OF 2012.
R1 TO R3 BY SENIOR ADVOCATE SRI.T.P.M.IBRAHIM KHAN &
STANDING COUNSEL SRI.ABDUL MAJEED.K.M.
ADDL. R4 & R5 BY ADV. SRI.P.CHANDRASEKHAR.
R1 TO 3 BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.)
R1 TO 3 BY ADV. SRI.MATHEW K. SIMON
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
19-11-2013, ALONG WITH W.P.(C).NO.2769/2012-U, THE COURT ON
28-11-2013 DELIVERED THE FOLLOWING:-
W.P.(C).NO.34368 OF 2011-U
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APPENDIX
PETITIONER'S EXHIBITS:-
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EXT. P1 A TRUE COPY OF THE COMMUNICATION BY THE RESPONDENT
UNIVERSITY DATED 1-10-2009.
EXT. P2 A TRUE COPY OF THE COMMUNICATION BY THE RESPONDENT
UNIVERSITY DATED 27-09-2010.
EXT. P3 THE TRUE COPY OF THE NOTIFICATION DATED 11-06-2010
ISSUED BY THE RESPONDENT UNIVERSITY.
EXT. P4 A TRUE COPY OF THE APPLICATION DATED 02-07-2010
SUBMITTED BY THE PETITIONER.
EXT. P5 A TRUE COPY OF THE CORRIGENDUM APPEARED IN MALAYALA
MANORAMA DAILY DATED 04-05-2011.
EXT. P6 THE TRUE COPY OF THE APPOINTMENT ORDER
DATED 23-09-2011 OF THE PETITIONER.
EXT. P7 A TRUE COPY OF THE COMMUNICATION DATED 27-09-2011
ISSUED BY THE REGISTRAR TO THE SECRETARYOF
EDUCATION, GOVERNMENT OF PONDICHERRY.
EXT. P8 A TRUE COPY OF THE COMMUNICATION OF THE
RESPONDENT UNIVERSITY DATED 25-11-2011.
EXT. P9 A TRUE COPY OF THE REPLY DATED 28-11-2011 SUBMITTED
BY THE PETITIONER.
EXT. P10 A TRUE COPY OF THE COMMUNICATION OF THE RESPONDENT
UNIVERSITY DATED 05-12-2011.
EXT. P11 A TRUE COPY OF THE COMMUNICATION OF THE RESPONDENT
UNIVERSITY DATED 13-12-2011.
EXT.P12 TRUE COPY OF THE RECOMMENDATION FORWARDED BY
THE SCREENING COMMITTEE OBTAINED UNDER THE
RIGHT TO INFORMATION ACT.
EXT.P13 TRUE COPY OF THE NOTIFICATION ISSUED BY OSMANIA
UNIVERSITY, HYDERABAD.
EXT.P14 TRUE COPY OF THE RELEVANT PAGES OF THE RECOMMENDATION
MADE BY THE SCREENING COMMITTEE OBTAINED UNDER THE
RIGHT TO INFORMATION ACT.
W.P.(C).NO.34368 OF 2011-U
- 2 -
EXT.P15 TRUE COPY OF THE COMMUNICATION DATED 19.03.2012.
EXT.P16 TRUE COPY OF THE COMMUNICATION DATED 30.03.2012 ISSUED
BY THE DEPUTY REGISTRAR.
EXT.P17 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 4.4.2012
RECEIVED BY THE PETITIONER ON 9.4.2012.
RESPONDENTS' EXHIBITS:-
------------------------------------------
EXT.R2(a) - TRUE COPY OF THE NOTIFICATION DATED 19.4.2011 OF THE
REGISTRAR OF CENTRAL UNIVERSITY OF KERALA.
EXT.R2(b) - TRUE COPY OF THE UPDATE FORMAT FOR
ADVT.NO.CUK/ADVT-1/2010 DATED 11-6-2010 FURNISHED
BY THE PETITIONER.
EXT.R2(c) - TRUE COPY OF THE NOTE TO REGISTRAR DATED 23-11-2011
OF THE REGISTRAR OF CENTRAL UNIVERSITY OF KERALA.
EXT.R4(a) - TRUE COPY OF THE UNIVERSITY GRANTS COMMISSION (MINIMUM
QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER
ACADEMIC STAFF IN THE UNIVERSITIES AND COLLEGES AND
OTHER MEASURES FOR THE MAINTENANCE OF STANDARDS IN
HIGHER EDUCATION) REGULATIONS, 2010.
EXT.R4(b) - TRUE COPY OF UPDATE FORMAT FOR THE POST OF ASSOCIATE
PROFESSOR SUBMITTED TO 1ST RESPONDENT BY THE WRIT
PETITIONER.
EXT.R4(c) - TRUE COPY OF ORDER DATED 1.10.2009 OF THE OFFICER ON
SPECIAL DUTY OF THE 1ST RESPONDENT.
vku/- ( true copy )
K. Vinod Chandran, J.
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W.P.(C).Nos.34368 of 2011-U & 2769 of 2012-U,
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Dated this the 28th day of November, 2013
JUDGMENT
The petitioners in both the writ petitions were applicants to the post of Associate Professor in the Central University of Kerala, the 1st respondent. The petitioner in W.P.(C) No.34368/2011 was successful in getting the 2nd rank and was appointed to the said post but was later found to be not having the qualification prescribed for the post. The said petitioner challenges Exhibit P8 order of the University, which found him as not possessing the qualification prescribed in the "University Grants Commission (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 (hereinafter referred to as "Regulation of 2010") and the direction to submit proof as to the experience of PG teaching as prescribed in the said Regulation.
2. The petitioners in W.P.(C) 2769/2012 are the respondents 4 and 5 in W.P.(C) No.34368 of 2011 and are the rival claimants to the post, who were not successful in the selection process conducted. The 3rd respondent in W.P.(C) No.2769 of W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 2 -
2012, is yet another person who turned out successful, having obtained the first rank.
3. W.P.(C) No.34368 of 2011 is referred to in this judgment, with reference to party status and so also the documents, as has been produced therein. I have heard learned counsel Sri.M.P.Sreekrishnan appearing for the petitioner, Sri.P.Chandrasekharan appearing for respondents 4 and 5 as also learned Senior Counsel Sri.T.P.M.Ibrahimkhan appearing for the University. Senior Counsel Sri.Kurian George Kannanthanam appears for the 3rd respondent, in W.P.(C).No.2769 of 2012, who is referred to as the 1st rank holder.
4. The petitioner, an Assistant Professor in English working in a Government College under the University of Pondicherry, had been selected by the Union Public Service Commission and had been continuing thereon from 12.07.2004 onwards. Exhibit P1 was the offer of appointment to the petitioner as Assistant Professor in Comparative Literature in the respondent-University, on deputation, in which post the petitioner joined on 03.10.2009. He is later said to have been promoted as Department Head and his deputation, evidently, was sought to be extended by the respondent-University itself by Exhibit P2.
W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 3 -
5. While he was continuing on deputation, the University came out with Exhibit P3 notification for regular appointment to various faculty positions. The essential qualification for Associate Professor in Comparative Literature, to which the petitioner applied was a post-graduation in English or Comparative Literature from an Indian University, Ph.D in English or Comparative Literature, and active engagement in research with five years of experience in teaching/research; all of which the petitioner satisfied. The petitioner applied for the post of Assistant Professor as per Exhibit P4. The notification called for appointment to two Un-Reserved posts of Associate Professors in the concerned subject. Subsequently, the University came out with a Corrigendum, by which, Exhibit P3 notification was sought to be amended insofar as purportedly making the Regulation of 2010, applicable to the appointment of teachers and academic staff and making it mandatory for the candidates who have applied under Exhibit P3 to furnish additional details, updating their application, as per the new Regulations. The petitioner obviously did that also.
6. By Exhibit P6, based on the recommendations of the Selection Committee and the approval accorded by the Executive Council at its meeting held on 21.9.2011, the Vice-Chancellor W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 4 -
appointed the petitioner as an Associate Professor in the department of Comparative Literature. Immediately thereafter on 27.09.2011, communication was addressed to the Secretary to Education, Government of Pondicherry intimating the regular appointment of the petitioner and seeking a relieving order from the service of the Government of Pondicherry, even before the expiry of the deputation period.
7. After two months, by Exhibit P8 dated 25.11.2011, the petitioner was informed that the qualifications prescribed in the UGC Regulations of 2010, was a minimum of eight years of experience of teaching/research in an academic/research position equivalent to that of Assistant Professor in a University, College or Accredited Research Institution or Industry excluding the period of Ph.D. Research with evidence of published work and minimum of five publications as books and/or research/policy papers. It was also informed that despite the petitioners claim of teaching experience of "eight years and one month", the documents submitted does not substantiate such claim; in a post equivalent to that of Assistant Professor in a University. Hence the further direction to produce documentary evidence in proof of having eight years experience in such a post. This has led to the filing of the W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 5 -
above writ petition.
8. The petitioner seeks to uphold the selection, which according to him is made under Exhibit P3 notification. The Corrigendum; it is contented, could not have applied to Exhibit P3 notification for reason of the Regulations of 2010 having not come into force as on the last date of application prescribed in Exhibit P3 and for the further illegality in the University attempting to change the Rules of the game after the selection proceedings commenced. The respondents 4 and 5 filed W.P.(C).No.2769 of 2012, challenging the very selection itself and assails the appointment of the 1st two rank holders. They challenged the very selection process as illegal and without following any consistent procedure. They also assail the selection of the petitioner as also the third respondent, in their writ petition; as being incompetent and illegal for reason of the selected candidates not having satisfied the essential qualification criteria prescribed by the Regulations of 2010 and even that of Exhibit P3.
9. The learned Senior Counsel appearing for the 1st rank holder raises serious objections about the locus standi of the respondents 4 and 5 to file a writ petition challenging the selection. The learned Senior Counsel would contend that a mere perusal of W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 6 -
Appendix III of the Regulations of 2010, which provides for Academic Performance Indicator (API) and a comparison of the relevant entries made by the respondents 4 and 5, as seen from their applications, would demonstrate that they were in fact disqualified from even participating in the selection process. Submissions were made by all the parties regarding the criteria of eligibility to challenge the eligibility of each and all of them to be considered at all. But, however, this Court is of the opinion that sitting in the jurisdiction conferred under Article 226 of the Constitution and attempting a secondary review of the selection process undertaken by the respondent-University, this Court should confine itself to looking at any irrationality, illegality or procedural irregularity in the selection process. To attempt a roving enquiry into the comparative merits of each of the candidates who appeared for the selection so as to ferret out inconsistencies in the self evaluation attempted by each of the candidates would be a judicial overreach into the area demarcated to the academic body. The selection is to the post of Associate Professor in Comparative Literature and this Court has to confess, and concede a lack of expertise in deciding upon the comparative merit of each of the candidates. Looking at Exhibit P12 produced in W.P.(C).No.34368 W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 7 -
of 2011, being the evaluation of the Screening Committee and Exhibit P20, evaluation by Selection Committee, produced in W.P. (C).2769 of 2012, the rival claimants herein along with the selected candidates were found to be eligible to appear for the selection. The question of locus standi, raised by the 1st rank holder hence, would stand rejected.
10. The University however would contend that though Exhibit P3 was issued under the Regulation of 2000, Exhibit R4(a) Regulations of 2010 having been made on 30.06.2010, though not published, it was perfectly justified in adopting the same for the selections already notified. The change in procedure was indicated by a Corrigendum and the petitioner also had complied with the same. The University would submit that it was only an omission or mistake that the petitioner was selected and the Regulations of 2010 having been made effective, the petitioner cannot be continued unless he is qualified to hold the post as per the revised Regulations of 2010.
11. Admittedly when Exhibit P3 notification was issued, the petitioner was continuing on deputation in the post of Associate Professor, the regular appointment to which, he applied as per Exhibit P3. When the Corrigendum was published, though W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 8 -
Regulations of 2010 were not applicable, the petitioner updated his details in accordance with the Regulations of 2010. The petitioner specifically draws the attention of this Court to the update format submitted by the petitioner, wherein Clause 7, clearly indicates that he had also applied for the post of Assistant Professor in Comparative Literature and by Clause 8 expressed his willingness to be considered to the lower post, if he is not selected to the post of Associate Professor. Exhibit R2(b) is the update format submitted by the petitioner and produced by the University.
12. The Regulations of 2010 are made under Section 26 of the University Grants Commission Act, 1956 (hereinafter referred to as "the UGC Act"). The last date for applying in accordance with ExhibitP3, as indicated therein, was 02.07.2010 and though the Regulations of 2010, Exhibit R4(a) is dated 30.06.2010, it is brought into force only by its publication in the Gazette; which publication was made on 18.09.2010. The date of publication is beyond dispute, and according to the petitioner, the Regulations did not provide for any retrospective effect and can only be considered as being prospective.
W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 9 -
13. Section 26 of the UGC Act provides that "the Commission may, by notification in the Official Gazette, make regulations consistent with this Act" and as per sub-rule (2) any Regulation so brought in would come into effect from the date of publication of the notification. Sub-section (3) confers the power on the Commission to give retrospective effect to any such regulations made, dealing with clauses (a) to (h) of sub-section (1) without prejudicially affecting the interests of any person. The power to make retrospective regulations being specifically conferred on the rule making authority, there can be no dispute that a regulation could be made retrospectively, but, however, the same should be evident by the express words employed in the notification or by necessary implication. The words employed in sub-section (1) also makes it mandatory that for such regulations to have effect, it should be notified in the Official Gazette. In the context of the Act conferring powers on the UGC to make any regulation retrospective and such power having not been exercised; the Regulations would not be applicable to the selections which commenced, before the Regulations came into effect.
W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 10 -
14. Rajendra Agricultural University v. Ashok Kumar Prasad [(2010) 1 SCC 730] is an authority for the proposition that, "when the Act clearly provided that the Statute required publication in the gazette, the requirement became mandatory" (sic) (para 21). The Hon'ble Supreme Court re-iterated the well-heeled principle that when the enactment lays down the manner in which a rule or regulation should be made, it shall be made in that manner alone and none other. "Where the field is occupied by an enactment, the executive has to act in accordance therewith, particularly where the provisions are mandatory in nature. There is no room for any administrative action or for doing the thing ordained by the statute otherwise than in accordance therewith" (sic) (para 25). Following the dictum laid down in the said case, the Regulations of 2010 can be said to have come into effect only when it was published in the Official Gazette, i.e., on 18.09.2010. The date "30.06.2012" shown in the Regulations of 2010 is the date on which the Commission brought out the said Regulations and that is of no consequence, since sub-section (1) of Section 26 inhibits the Commission, in so far as bringing out a Regulation, other than by way of a notification in the Official Gazette.
W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 11 -
15. The learned counsel would also rely on Mohanan v. Director of Homeopathy [2006 (3) KLT 641] to canvass the position that when a selection procedure has commenced and Regulations are for the first time made or amendments are made to the existing one; it shall not adversely affect the persons who have validly applied before the coming into force of the Regulations or the amendments thereon. In that case, a Full Bench of this Court considered the question whether the vacancies which arose subsequent to the Special Rules for the Homoeopathy Subordinate Service could be filled up from the rank list prepared by the Public Service Commission pursuant to a selection initiated before the amendment, but completed after the amendment. Referring to a large number of Supreme Court judgments, it was held that when laying down a proposition that the vacancies, which occurred prior to the amended rules, would be governed by the unamended rules, a converse proposition, also would be valid; in so far as holding that vacancies which occurred subsequent to the amendment in the rules would be governed by the amended rules itself. All the decisions referred to were found to be upholding the right of the applicants who had applied pursuant to a notification to be considered for selection in W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 12 -
accordance with such notification. It was held so in para 21:
"It is worth noting that these decisions recognize a right in those persons who have applied pursuant to the selection process initiated prior to the date of coming into force of the Special Rules, for being considered for selection in accordance with the rules in force at that time. By the same coin, an equally enforceable right has to be recognised in those persons who possess the new/amended qualifications as per the Special Rules to get recruitments made in accordance with the new/amended rules, in which they also can compete to the vacancies which have arisen subsequent to the coming into force of the new/amended rules".
Though the converse proposition does not have a bearing in this case the oft recognised principle, reiterated by the Full Bench definitely applies.
16. In the instant case, undoubtedly the notification was published before the coming into force of the Regulations of 2010. It goes without saying that the vacancies which were to be filled up also arose before the notification, and the notification prescribed the qualifications as provided for in the University Grants Commission (Minimum Qualifications required for the Appointment and Career Advancement of Teachers in Universities W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 13 -
and Institutions affiliated to it) Regulations, 2000 (hereinafter referred to as "Regulations of 2000"). The Regulations of 2010 did not, by express words or necessary implication, make the said regulations retrospective. When specific power is conferred on the Commission to make any regulations retrospective, subject only to the rider of such retrospectivity not causing prejudice to any person, it has to be found that Regulations of 2010 was not retrospective in operation and could not have been applied in a selection process which commenced prior to the Regulations being notified in the Official Gazette. Considerable support for the above proposition is garnered from the decisions of the Hon'ble Supreme Court reported in P.Mahendran v. State of Karnataka [(1990) 1 SCC 411] and Gopal Krushna Rath v. M.A.A. Baig [(1999) 1 SCC 544]. The amendments or the new regulations brought in during the continuance of the process of selection, hence, cannot be made applicable to fill up the vacancies that existed prior to such regulations coming into effect, when the notification for selection itself was prior to the regulations. Such vacancies were notified, applications invited and received prior to the date of publication of the regulations in the Gazette.
W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 14 -
17. That the qualifications prescribed are as per the Regulations of 2000 cannot at all be disputed. It is admitted by all parties that the post of Associate Professor was equivalent to that of Reader before the coming into force of the Regulations of 2010. The qualification for Reader in the subjects of Humanities, Social Sciences, Commerce, Education, Physical Education, Foreign Languages and Law was prescribed by Clause 1.3.2 in the Regulations of 2000, which is extracted hereunder:
"1.3.2 Reader Good academic record with a doctoral degree or equivalent published work. In addition to these, candidates who join from outside the University system, shall also posses at least 55% of the marks or an equivalent grade of B in the 7 point scale with latter grades O, A, B, C, D, E and F at Master's degree level.
Five years of experience of teaching and/or research excluding the period spent for obtaining the research degree and has made some mark in the areas of scholarship as evidenced by quality of publications, contribution to educational innovation, design of new courses and curricula".
18. That the petitioner is eligible under Exhibit P3 notification, which is in consonance with the essential qualification for Reader as prescribed by Regulations of 2000, is, hence, demonstrably clear. The question would be as to the effect of the Corrigendum produced as Ext.P5. That the respondent-University W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 15 -
laboured under a belief that on the Regulations of 2010 coming into effect, the selections were to be carried on as per the said Regulations of 2010, though clear from the Corrigendum, it is not explicitly stated thereunder. It was not specifically stated that the qualification and experience would stand revised. The University, however, in its counter affidavit, asserts so and unequivocally state that the intention was to conduct the selection as per the said Regulations of 2010, failing which they were under the threat of being proceeded against by the UGC for violation of the provisions of the Regulations.
19. The Corrigendum published on 4.5.2011, strictly does not make the Regulation of 2010 applicable to the selection. It only stipulates that the candidates who have applied as per the earlier notification requires to furnish certain additional details updating their application as per the requirement of the Regulations of 2010. That such uploading was done also cannot be disputed. It was on a verification of the qualification and experience as revealed in the respective applications originally submitted and subsequently uploaded, that the petitioner, as also the 1st rank holder and the rival claimants in the present litigations were found to be eligible as per Exhibit P12, produced by the W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 16 -
petitioner in W.P.(C).No.34368 of 2011; obtained under the Right to Information Act. Exhibit P12 reveals that a Screening Committee was constituted to determine the threshold eligibility of the candidates who applied for the posts. The eligibility was first determined and the Selection Committee evaluated the credentials and performance of each of the candidates and prepared a rank list, wherein the 1st rank holder and the petitioner came out successful and eligible to be appointed to the two posts notified in Exhibit P1.
20. The petitioner would contend that he was a person who was validly selected by the Selection Committee and his credentials were verified by the Committee and the recommendation of the Committee was also approved by the Executive Council of the University, as is evident from his appointment order. It is asserted that the petitioner had at no time made any misrepresentation and the statement; that he had in his academic profile stated that he had post graduate teaching experience of "eight years and one month", is misleading. It is his contention that he had merely detailed his experience in ExhibitP4 application clearly specifying the posts he held and the nature of employment carried on. The entire details along with supporting W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 17 -
documents were available with the University. The Screening Committee, the Selection Committee as also the Executive Council and the Vice-Chancellor, being the appointing authority, found the petitioner to be eligible for appointment. There was no occasion for either of these authorities to proceed on the basis of any submission made by the petitioner. In fact, it is strongly urged that there is absolutely no requirement to specify the period of experience as such, any where in the format provided by the University; in the initial application or in the update format issued subsequently. The petitioner having been validly selected and that too as per the qualifications prescribed in the Regulations of 2000, could not have been called upon to prove his qualifications as per the later Regulation of 2010, is the contention.
21. The petitioner cannot be said to have misled the University or misrepresented on his relevant experience. Nowhere in the original application or the subsequently updated one was it indicated that the petitioner has "experience of 8 years and 1 month". The petitioner merely laid out his teaching experience, which included experience not relevant to that prescribed by Exhibit P1 notification also. It cannot, for a moment, be disputed that the petitioner had 5 years "relevant experience" as prescribed W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 18 -
in the notification and provided for in the Regulations of 2000. In the updated format also he did not at all assert that he had the experience as was required in the Regulations of 2010. In fact in the updated format against a specific column "whether the candidate would be agreeable for consideration to a lower post, i.e., of Assistant Professor", the petitioner answered in the affirmative. That there were posts of Assistant Professors notified for appointment is quite evident from Exhibit P3. That the petitioner was qualified to be considered for the said post even under the Regulations of 2010 is also not in dispute. The University adopted a four-tier system of screening, i.e., initial consideration of eligibility, recommendation of the Selection Committee followed by the proceedings of the Executive Council and the appointment letter issued by the Vice-Chancellor. Finding the petitioner to be suitable for the 2nd post, he was appointed and the University, on its own initiative, sought his relief from the regular employment petitioner had under the Government of Pondicherry.
22. The petitioner has 'burned his bridges' by the conscious and deliberate selection made by the University. The University with utmost levity condemns their own selection as a W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 19 -
mistake. It is easy for the rival claimants who failed, to contend that sympathy should not be a consideration at all in issuing directions. "The history of our kindness alone makes this world tolerable", wrote R.L Stevenson and he was inclined to think "... our life a practical jest in the worst possible spirit"; but for the "effect of kind words, kind looks...". Law though not divorced from life, in deciding equity, definitely, the Court cannot draw from the well of individual or collective kindness. But in deciding upon the equitable considerations and the relief to be moulded, the Court definitely could look at the conduct of the parties. The University, through a four-tier system of evaluation, appointed the petitioner to a post to which he applied, laying all his cards on the table, but later callously turned around seeking to cancel his appointment on the ground of lack of qualification, which even if sustainable,the University could have easily found out by the scrutiny of the documents before it. The prejudice caused to an individual by the action of the administrative authority is also a reigning consideration, though not the sole one. The totality of the circumstances especially his having been, at the relevant time, continued on deputation in the University, as Head of the very same Department, assumes significance. Deputation was sought W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 20 -
to be extended and after regular appointment the University sought the petitioner's relief from the regular employment of the petitioner. Further the University itself is not sure about what procedure was followed and the yoke has fallen on the Court to decide and resolve upon the alleged mistake of the University.
23. In an instance where a candidate was allowed to sit for Part II examination of LL.B., which later was attempted to be cancelled by the University on the contention that he has not cleared the Part I examinations, the Hon'ble Supreme Court held that it was the duty of the University authorities to scrutinise the admission form before admitting the candidate to an examination and having admitted, cannot allege fraud on the candidate. The Hon'ble Supreme Court in Shri Krishnan v. Kurukshetra University [(1976) 1 SCC 311] held:
"It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi, or suppressio veri".
Despite the Regulations being found to be otherwise, the appeal filed by the candidate was allowed, setting aside the order of the University and directing it to declare the result of LL.B. Part II examination and also affording an opportunity to appear for the W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 21 -
failed subjects of the Part I examination. A similar course was also adopted by the Hon'ble Supreme Court in Guru Nanak Dev University v. Sanjay Kumar Katwal [(2009) 1 SCC 610], following Shri Krishnan (supra). In the present case also, there is no instance of suggestio falsi (a statement of falsehood, amounting to fraud when the party making it is bound to disclose the truth) or suppressio veri (a misrepresentation of the truth by the omission or suppression of certain key facts). The University was unsure of the procedure to be followed. But looking at the eventual selection, especially when the petitioner was considered for the post of Associate Professor and not Assistant Professor; the University is deemed to have finally decided to follow the Regulation of 2000 itself.
24. The contention raised on behalf of respondents 4 and 5 in this Writ Petition, that the University is a newly founded one and that it had no rules or regulations with respect to faculty positions, cannot at all be countenanced. As was noticed above, the Regulations of 2000 brought out by the UGC was in force when the notification for appointment was published and the qualifications and experience with respect to the selection of Associate Professor in the subject of Comparative Literature was W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 22 -
as prescribed in the Regulations of 2000, however, in the equivalent post of Reader. The contention that the University could have deviated from the Regulations only at the risk of loss of affiliation and denial of grants again cannot be sustained, since the notification was in tune with the Regulation of 2000, in force at that point of time.
25. The reliance placed on the decision in University of Delhi v. Raj Singh [AIR 1995 SC 336], according to this Court, is not applicable to the facts of this case. Raj Singh (supra) was a case in which an applicant to the post of Lecturer, challenged the selection procedure on the ground that it did not conform to the Regulations brought out by the UGC. The Regulations of 1991, relevant in the said case, prescribed that every candidate applying to the 1st teaching post in an University has to necessarily pass the test prescribed by the Regulations. The Delhi University, while calling for appointments, did not provide for the same. The Regulations were held to be mandatory unless otherwise exempted by the Commission, and if violated, the University would forfeit its grant from the UGC. In the present case, the question is not as to whether the notification was in consonance with the Regulation of the UGC. The question raised is as to whether the W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 23 -
Regulations of 2000 applies or the Regulations of 2010. This Court has found that the notification was published in accordance with Regulations of 2000 and the vacancies arose as also the notification published prior to the coming into force of the Regulations of 2010.
26. The learned counsel for the respondents 4 and 5 would then contend that the selection process was carried on in a manner not prescribed by either the Regulations of 2000 or of 2010. The prescription of marks for selection to the post of Associate Professor, is revealed in Exhibit R4(a) Appendix-III Table-II(c). The said Table prescribes 20% each for academic background; assessment of domain knowledge and teaching skills and performance in interview and the balance 40% for research performance based on API score and quality of publications. The comparative marks awarded to the petitioner and other students produced as Exhibit P20 in W.P.(C).No.2769 of 2012 is pointed out to show that the domain knowledge and teaching skills have been given only 10/100 and the interview 15/100. The University having proceeded with the procedure of selection as prescribed in the Regulations of 2010 could not have deviated therefrom, is the contention, since that would cut at the root of the selection W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 24 -
process itself.
27. It is to be specifically noticed that it is by Regulations of 2010 that the API score as also setting apart of specific percentage of marks to each aspect of evaluation was laid down. If the Regulations of 2010 was deviated from, that would again demonstrate that the selection was not conducted in accordance with the Regulations of 2010. This would be clear from a reading of Regulations of 2000, which does not provide for any such setting apart of marks for evaluating a candidate. In the absence of specific procedure as per Regulations of 2000 the University was free to adopt its own procedure. In doing so, relying upon the new Regulations of 2010, but not following it, in its very letter, can be no cause for complaint from any quarter. It is the prerogative of the academic body to devise a scheme of selection, which cannot be interfered with by this Court and superseded by the views and reasoning of this Court. True, the University asserts in its counter affidavit that the selection procedure and the prescription of qualification and experience was in accordance with the Regulations of 2010. But for the assertion in the counter affidavit and the fact of the Corrigendum having been issued directing an update of profile as required under the W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 25 -
Regulations of 2010, there is nothing at all to indicate that the said Regulations of 2010 was followed.
28. The last contention raised on behalf of the respondents 4 and 5 is with respect to the entitlement of the petitioner and the 1st rank holder. Even going by Exhibit P1 notification, it requires active engagement in research. According to the respondents 3 and 4 if strict interpretation is given, then none of the applicants would be eligible, since to a teaching post "relevant experience" as per the notification would not necessarily mean active engagement in research. This contention is advanced to canvass the position that in the fitness of things the entire selection is to be scrapped and a fresh one initiated. This Court cannot shut its eyes to the expenditure in attempting such exercise as also the vacancies in faculty positions which would be created by such an exercise. Time and again the Hon'ble Supreme Court has cautioned the High Courts from extending its jurisdiction by substituting its own reasoning in attempting to upset the actions of the authorities, wherein specific fields of expertise are involved.
29. The respondents 4 and 5 commends an interpretation to the words 'actively engaged' to mean experience in faculty positions where research is integral. The awarding of W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 26 -
Ph.D is the culmination of the research in a particular field of study. The prescription is:
Essential qualifications
3) Actively engaged in research with 5 years of experience in teaching and/or research The prescription does not warrant a semantic interpretation and the contention is further belied by the experience being certified as in "teaching and/or research". The fact that the candidates had doctoral degree evidences they were actively engaged in research and their antecedents as disclosed from publications etc., would lend further credence to their research based activities.
30. This Court finds the selection procedure which was undertaken by the University to be reasonable and rational and not in any manner vitiated by illegality. The assertion of the University that the Regulations of 2010 would be applicable is of no consequence, since the Regulations were brought into effect after the selection process commenced. The method adopted for evaluation also is not in tune with that of the Regulations of 2010. The understanding of the University, as asserted in its counter affidavit, does not emanate from the selection procedure followed, which has been found, to be under the Regulations of 2000.
W.P.(C).Nos.34368 of 2011 & 2769 of 2012 - 27 -
Hence there is no irregularity in procedure, too. The appointment of the petitioner, hence, has to be regularised. The challenge against the appointment, made by the University, in the case of the 1st rank holder and the petitioner herein is also to be negatived.
W.P.(C).No.34368 of 2011 is allowed, directing the University to regularise the appointment of the petitioner and setting aside Exhibits P8, P10 and P11. W.P.(C).No.2769 of 2012 is dismissed. The parties are left to suffer their respective costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
( true copy )