Kerala High Court
Biju.R.I vs The University Of Kerala on 9 January, 2008
Bench: K.Balakrishnan Nair, P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 2670 of 2007()
1. BIJU.R.I., S/O.RAJU, AGED 29 YEARS,
... Petitioner
2. HARIKRISHNAN.S., S/O.K.N.SURENDRAN NAIR,
3. GAYATHRI GOPAN, D/O.SANTHA GOPAN,
4. EZRETH, W/O.ANZAR HUSSAIN,
Vs
1. THE UNIVERSITY OF KERALA, REPRESENTED
... Respondent
2. THE UNIVERSITY OF KANNUR
3. THE CALICUT UNIVERSITY, REPRESENTED BY
4. THE MAHATMA GANDHI UNIVERSITY,
5. THE STATE OF KERALA,REPRESENTED BY THE
6. THE UNIVERSITY GRANTS COMMISSION,
7. THE MANAGER, MANNANIYA COLLEGE OF ARTS
8. THE MANAGER CUM SECRETARY, M.S.M.
9. ABIN WILSON, S/O.P.V.WILSON,
For Petitioner :SRI.GEORGE POONTHOTTAM
For Respondent :SRI.KALEESWARAM RAJ
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :09/01/2008
O R D E R
K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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WA Nos.2647,2648,2664, 2669 & 2670 of 2007
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Judgment Balakrishnan Nair, J.
WA No.2670 of 2007
The writ petitioners are the appellants. The validity of Ext.P2 statute, framed by the University of Kerala, prescribing the qualification for appointment to the post of Lecturer in various subjects under the said University and the colleges affiliated to it, was under challenge in the Writ Petition.
2. The brief facts of the case are the following : All the appellants are post graduates with 55 or more percentage of marks in various subjects. All of them are having M.Phil. qualification in the concerned subject. They submit that the UGC Regulation for appointment to the post of Lecturer prescribes the qualifications for appointment as (1) good academic record with 55% marks or equivalent. (2) Pass in National Eligibility Test for Lecturers, conducted by the UGC, CSIR or similar test accredited by the UGC. But, as per Ext.P1 Regulation, candidates with Ph.D. degree in the concerned subject are exempted from NET for post graduate level and undergraduate level teaching. WA No.2670/07 & connected cases 2 Candidates having M.Phil. Degree in the concerned subject are exempted from NET for undergraduate level teaching. As per Ext.P1, all the petitioners are eligible to be appointed as Lecturer, for teaching at undergraduate level. While so, the Kerala University issued Ext.P2 order, prescribing the minimum qualification for appointment to the post of Lecturer and also for career advancement. The said order reads as follows :
"The UGC as per D.O. read as first paper above, has modified the UGC regulation regarding minimum qualification for appointment and Career Advancement of Teachers in Universities and affiliated colleges as follows : 'NET shall remain the compulsory requirement for appointment as Lecturer for those with Post-graduate Degree. However, the candidates, having Ph.D. Degree in the concerned subject are exempted from NET for PG level and UG level teaching. The candidates having M.Phil. Degree in the concerned subject are exempted from NET for UG level teaching only'. The Academic Council at its meeting held on 13th December 2006 has approved the modification by excluding the clause, 'The candidates having M.Phil. Degree in the concerned subject are exempted from NET for UG level teaching only'."
The qualifications prescribed by the UGC except the prescription of M.Phil. WA No.2670/07 & connected cases 3 Degree in the concerned subject for undergraduate level teaching in lieu of NET qualification, have been accepted . A few colleges affiliated to the Kerala University have, now invited applications for appointment to the post of Lecturer in various subjects. But, the appellants could not apply for the same in view of Ext.P2, as those notifications say that the qualification should be as per the Government/University Rules. Therefore, the Writ Petition was filed by them, seeking to quash Ext.P2 to the extent, it excludes M.Phil. Degree in the concerned subject for undergraduate level teaching. They also sought consequential reliefs.
2.The learned Single Judge who heard the matter dismissed the WP(C). The main contention raised before the learned Single Judge by the writ petitioners was that Ext.P2 is ultra vires of Ext.P1 and therefore, unenforcible. But,the learned Single Judge took a view that since there is no cadre of Lecturer, exclusively for teaching at the undergraduate level in Kerala, the prescription made in Ext.P1 that M.Phil. Degree is sufficient qualification for teaching at undergraduate level is of no consequence as far as the State of Kerala is concerned. Here, there is only one combined cadre of Lecturer for teaching both undergraduate and postgraduate courses. Feeling aggrieved by the said WA No.2670/07 & connected cases 4 Judgment, this Writ Appeal is filed.
3. The learned counsel appearing for the appellants Mr.George Poonthottam submitted that Ext.P2, to the extent, it is contrary to the prescription contained in Ext.P1 is ultra vires and unauthorised. It is also pointed out that a person, who has a Postgraduate degree with 55% marks and M.Phil. qualification should be treated as a superior candidate, when compared to a postgraduate with 55% marks and has cleared the NET. The NET is not a qualification prescribed for the post. It is only an eligibility test. Therefore, the prescription in Ext.P2 is arbitrary and unjust, it is submitted.
4. The University Grants Commission has filed a counter affidavit in this Writ Appeal. The learned counsel Mr.S.Krishnamoorthy, appearing for the University Grants Commission, pointed out the pleading of the Commission in para 24 of its counter affidavit, which reads as follows :
"That however, so far as the M.Phil. Degree holders are concerned, they are eligible for exemption from NET for being considered for appointment to the post of Lecturer provided that such post of Lecturer is meant only for teaching undergraduate courses. It is respectfully submitted that if a post of Lecturer is meant for teaching both undergraduate and postgraduate WA No.2670/07 & connected cases 5 courses, a candidate having only M.Phil. Degree and neither having NET qualification nor having Ph.D. Degree, cannot be considered for such post of Lecturer."
5. We also heard the learned Government Pleader Mr.Benny Gervasis, learned counsel Mr.M.Rajagopalan Nair for the University of Kerala, Mr.M.Saseendran for the Kannur University, Mr.T.A.Shaji for the Mahatma Gandhi University, Mr.P.C.Sasidharan for the Calicut University, learned Assistant Solicitor General Mr.P.Parameswaran Nair and also Mr.Kaleeswaram Raj, for the additional 9th respondent.
6. The contention of the appellants that there is conflict between Exts.P1 and P2, cannot be accepted. It is true, Ext.P2 prescribes something more than that is prescribed under Ext.P1, as a qualification for a Lecturer, who is to teach at undergraduate level. The Regulations of the UGC fixes the benchmark qualifications. If the University or the State Government feels that in the colleges under them, a higher qualification should be prescribed, the same will not amount to a legislation or a subordinate legislation, repugnant to the UGC Act or the Regulations framed thereunder. This view is supported by the decision of the Apex Court in State of Tamil Nadu v. S.V.Bratheep (2004(4) WA No.2670/07 & connected cases 6 SCC 513). It is a decision, arising under the All India Council for Technical Education Act. Under the Act, the Council has prescribed the minimum marks for admission to the Engineering course. The Government prescribed something more which is higher to the minimum prescription made by the Council. The Apex Court upheld the said decision of the Tamil Nadu Government. The relevant portion of the said decision reads as follows :
"Argument advanced on behalf of the respondents is that the purpose of fixing norms by AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr.Preeti Srivastava case (1999) 7 SCC 120) that the State can always fix a further qualification or additional qualification to what has been prescribed by AICTE and that proposition is indisputable. The mere fact that there are vacancies in the colleges would not be a matter which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE, they should be admitted even if they fall short of the criteria prescribed by the State. The scope of the relative entries in the Seventh Schedule to the Constitution has to be understood in the manner as stated in WA No.2670/07 & connected cases 7 Dr.Preeti Srivastava case and therefore, we need not further elaborate in this case or consider arguments to the contrary such as on application of occupied theory, no power could be exercised under Entry 25 of List III as they would not arise for consideration................................................................................. In this view of the matter, we think these appeals deserve to be allowed in part and the order of the High Court stands modified to the extent of stating that it is permissible for the State Government to prescribe higher qualifications for purposes of admission to the engineering colleges than what had been prescribed by AICTE and what has been prescribed by the State and considered by us is not contrary to the same but is only complementary or supplementary to it."
In view of the above quoted decision, if something more is prescribed, it cannot be taken as contrary, but only as complementary or supplementary to the prescription already made by the Council. We are of the view that the principles laid down in the above decision will squarely apply to the facts of this case. So, there is no conflict between Exts.P1 and P2. In other words, Ext.P2 is not ultra vires of Ext.P1.
7. The next contention urged by the learned counsel for the appellants is that a candidate with M.Phil. Degree will be superior to a candidate, who has WA No.2670/07 & connected cases 8 cleared the NET. The learned counsel points out that it is only a test, which makes the candidate eligible for being considered for appointment, whereas M.Phil. is a degree, awarded by a University to a candidate, who is a postgraduate in the subject. So, it should be treated that a candidate with M.Phil.qualification is a candidate of superior merit. We are of the view that this is an issue in the academic field. Courts are vary to interfere with the decisions of expert bodies on such issues. Further, in the absence of necessary materials, we cannot venture to render a decision on that point. The UGC has treated a candidate with post-graduation with 55% marks and NET, eligible to teach at postgraduate and undergraduate levels. But, it has recognised a postgraduate with 55% marks and M.Phil. qualification, only eligible to teach at undergraduate level. Therefore, the claim of the appellants regarding the superiority of a candidate with M.Phil. Degree has not been recognised by the UGC, going by its Regulations. So, the prescription made by the University, treating a candidate with M.Phil. qualification as inferior to a candidate with NET for the purpose of appointment to the post of Lecturer is in tune with the prescription of the UGC. The same cannot be described as arbitrary. In the result, the challenge against the WA No.2670/07 & connected cases 9 Judgment of the learned Single Judge is repelled and the Writ Appeal is dismissed.
WA Nos.2647,2648,2664 & 2669 of 2007 In view of the Judgment in WA No.2670 of 2007, these Writ Appeals are also dismissed.
K.BALAKRISHNAN NAIR,JUDGE 09.01.2008 P.N.RAVINDRAN, JUDGE sta WA No.2670/07 & connected cases 10