Kerala High Court
Silvi.T.S vs The Manager, Pazhassiraja College on 23 September, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
MONDAY, THE 23RD DAY OF SEPTEMBER 2024 / 1ST ASWINA, 1946
WP(C) NO. 31067 OF 2018
PETITIONER/S:
SILVI.T.S
AGED 49 YEARS
W/O.M.K.BENNY, MUNDAKODIYIL HOUSE, NEAR BLOCK OFFICE,
SULTAN BATTERY PO, WAYANAD 673592, (WORKING AS JUNIOR
LECTURER OF ECONOMICS PAZHASSIRAJA COLLEGE, PULPALLY,
WAYANAD
BY ADVS.
V.VARGHESE
M.S.RADHAKRISHNAN NAIR
RESPONDENT/S:
1 THE MANAGER, PAZHASSIRAJA COLLEGE
PULPALLY, WAYANAD DISTRICT 673579
2 THE PRINCIPAL
PAZHASSIRAJA COLLEGE, PULPALLY, WAYANAD DISTRICT-
673579.
3 STATE OF KERALA
REPRESENTED BY SPECIAL SECRETARY,HIGHER EDUCATION
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM -695001.
4 THE DIRECTOR OF COLLEGIATE EDUCATION
THIRUVANANTHAPURAM-695001.
5 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION
KOZHIKODE- 673001
6 CALICUT UNIVERSITY REPRESENTED BY ITS REGISTRAR
WP(C) Nos.31067 & 40045 OF 2018 2
UNIVERSITY CAMPUS,THENJIPPALAM, MALAPPURAM DISTRICT.
7 AMAL MARCUS
WORKING AS ASSISTANT PROFESSOR OF ECONOMICS, EDUKUZHY
HOUSE, VELIYUMVAM P.O., PULPPALLY,WAYANAD-673579,
(ECONOMIC DEPARTMENT, PAZHASSIRAJA COLLEGE,PULPALLY,
WAYANAD DISTRICT).
8 MRS.MERIN S.THADATHIL
THADATHIL HOUSE, PERAMBRA P.O.,KOZHIKODE,(WORKING AS
ASSISTANT PROFESSOR OF ECONOMICS, PAZHASSIRAJA COLLEGE,
PULPALLY, WAYANAD DISTRICT).
9 ADDL.R9 UNIVERSITY GRANTS COMMISSION- UGC
REPRESENTED BY ITS SECRETARY, NEW DELHI-110002.
(ADDL.R9 IS IMPLEADED AS PER ORDER DATED 23/11/2018 IN
IA.01/2018)
BY ADVS.
R8 BY GEORGE POONTHOTTAM (SR.),
NISHA GEORGE,
A.L.NAVANEETH KRISHNAN.
R9 BY SRI.S.KRISHNAMOORTHY, CGC
R1 BY SRI.DINESH R.SHENOY
R6 BY SRI.P.C.SASIDHARAN
R3 TO R5 BY SRI.PREMCHAND R.NAIR, SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.06.2024 ALONG WITH WP(C).40045/2018, THE COURT ON 23.09.2024
DELIVERED THE FOLLOWING:
WP(C) Nos.31067 & 40045 OF 2018 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
MONDAY, THE 23RD DAY OF SEPTEMBER 2024 / 1ST ASWINA, 1946
WP(C) NO. 40045 OF 2018
PETITIONER/S:
MERIN S.THADATHIL
AGED 31 YEARS
THADATHIL HOUSE, PERAMBRA P.O., KOZHIKODE DISTRICT, NOW
WORKING AS ASSISTANT ROFESSOR OF ECONOMICS,
PAZHASSIRAJA COLLEGE, PULPALLY, WAYANAD DISTRICT, PIN-
673 579.
BY ADVS.
GEORGE POONTHOTTAM (SR.)
NISHA GEORGE
A.L.NAVANEETH KRISHNAN
RESPONDENT/S:
1 THE STATE OF KERALA
REPRESENTED BY SPECIAL SECRETARY, HIGHER EDUCATION
DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-
695 001.
2 THE DIRECTOR OF COLLEGIATE EDUCATION
THIRUVANANTHAPURAM-695 001.
3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION
KOZHIKODE-673001
4 CALICUT UNIVERSITY
REPRESENTED BY ITS REGISTRAR, UNIVERSITY CAMPUS,
THRNJIPPALAM, MALAPPURAM DISTRICT-673579
5 THE UNIVERSITY GRANTS COMMISSION
REPRESENTED BY ITS SECRETARY, NEW DELHI-110002
WP(C) Nos.31067 & 40045 OF 2018 4
6 THE MANAGER
PAZHASSIRAJA COLLEGE, PULPALLY, WAYANAD DISTRICT
-673 579.
7 THE PRINCIPAL
PAZHASSIRAJA COLLEGE, PULPALLY, WAYANAD DISTRICT -
673 579.
8 MRS. SILVI T.S.
JUNIOR LECTURER OF ECONOMICS, PAZHASSIRAJA COLLEGE,
PULPALLY, WAYANAD DISTRICT, PIN-673 579.
BY ADVS.
R4 BY SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY
R5 BY SRI.S.KRISHNAMOORTHY, CGC
R6 BY SRI.DINESH R.SHENOY
R8 BY SRI.V.VARGHESE, M.S.RADHAKRISHNAN NAIR
R1 TO R3 BY SRI.PREMCHAND R. NAIR, SR.GOVT.PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18.06.2024, ALONG WITH WP(C).31067/2018, THE COURT ON 23.09.2024
DELIVERED THE FOLLOWING:
WP(C) Nos.31067 & 40045 OF 2018 5
JUDGMENT
[WP(C) Nos.31067/2018 & 40045/2018] ...
Both these Writ Petitions were filed by the respective petitioners seeking reliefs that are closely connected, as both are claiming appointments as Assistant Professor (Economics) in the post available in Pazhassiraja College, Pulpally, Wyanad District.
2. W.P.(C) No.31067/2018 was filed by a person who was initially appointed as a Junior Lecturer in Economics, and her grievance is regarding the denial of the UGC scale by giving appointment to her as Assistant Professor. She contends that the 1st respondent-Manager has appointed the 8th respondent in the post of Assistant Professor (Economics), overlooking the legitimate claim of the petitioner herein. As far as W.P.(C)No.40045/2018 is concerned, the same is filed by the 8th respondent in WP(C)No.31067/2018, being aggrieved by the denial of approval of her appointment by the University and also challenging the orders issued by the Government and the University to grant UGC scale to the petitioner in WP(C)No.31067/2018 by absorbing her as WP(C) Nos.31067 & 40045 OF 2018 6 Assistant Professor instead of Junior Lecturer. (For the sake of convenience, the parties herein are referred to in this judgment as per their respective ranks as shown in WP(C)No.31067/2018 and Exhibits are also referred to as per the sequence they are produced in the said writ petition unless otherwise specifically mentioned).
3. The petitioner has a postgraduate degree in Economics with B.Ed. Exhibits P1 and P2 are the certificates evidencing the same. Earlier, as per Ext.P3 Government Order, a separate category of teachers viz. Junior Lecturers (Pre-Degree) was created for teaching Pre-Degree course which was part of the collegiate education at the relevant time. The qualification prescribed for Junior Lecturers was Master's Degree in the concerned subject with at least 50% marks with a B.Ed degree. The petitioner was appointed as Junior Lecturer based on her qualifications, as per Ext.P4 appointment order with effect from 27.02.1997.
4. As part of the National Education Policy, the Pre-degree was decided to be de-linked from the colleges in Kerala, and as part of implementing the same, the Government has taken a policy decision to deploy the Junior Lecturers to the Government Higher Secondary Schools to utilize their services. Accordingly, the petitioner was deployed to Higher Secondary School, Cheeral, as WP(C) Nos.31067 & 40045 OF 2018 7 per the orders passed in this regard by the 4th respondent, the Director of Collegiate Education. Subsequently, the Government issued GO(MS)No.75/09/H.Edn dated 01.07.2009 wherein, a decision was taken to re-deploy the teachers who were already deployed to the Government Higher Secondary Schools, to the parent institution. Ext.P5 is the said Government Order, and one of the conditions in Ext.P5 was that the said teachers should acquire NET/Ph.D within two years, and until then, they will get only State scale of pay.
5. In the meantime, the 1st respondent, instead of accommodating the petitioner to her parent institution, invited applications for fresh appointments to the vacancies available in the college. Therefore, the petitioner approached this Court by filing W.P.(C)No.18555/2011, challenging the notification issued by the 1st respondent. The Manager has also filed another Writ Petition against the proposal for the deployment of the petitioner. The said Writ Petitions were disposed of directing the Government to take a decision on the same and accordingly Ext.P6 Government Order dated 27.06.2012 was issued wherein, the 1st respondent-Manager was directed to re-appoint the petitioner in the college as per the conditions prescribed in GO(MS)No.4011/10/H.Edn dated WP(C) Nos.31067 & 40045 OF 2018 8 18.12.2010 (Ext.P7). It is to be noted that, in Ext.P5 Government Order, it was stipulated that the candidates who are re-deployed to the parent institution shall obtain the NET/Ph.D qualification as prescribed in the UGC regulations within a period of two years. Later, as per Ext.P7 Government Order, the said period was extended up to 30.06.2013. On the basis of Ext.P6, the petitioner joined duty in the parent college on 12.07.2012, and she is continuing in the college. According to her, she was later appointed as the Head of the Department of Economics as well. Exhibit P8 is the re-appointment order.
6. Subsequently, the Government issued Ext.P9 Government Order dated 01.06.2012 by which the Junior Lecturers who could not obtain NET qualification were permitted to continue in service in the State scale of pay, and it was also provided that they shall be given the benefits of UGC scale as and when they acquire NET/Ph.D qualifications. Thus, the requirement that the candidates should obtain NET qualification on or before 30.06.2013 was done away with by permitting them to continue in service on the State scale of pay till they acquire the qualifications. Thus, the petitioner continued in service, and eventually, she obtained a Ph.D WP(C) Nos.31067 & 40045 OF 2018 9 qualification, which is an alternate qualification for NET, on 01.09.2016..
7. In the light of Ext.P9 and also in view of the fact that the petitioner acquired Ph.D qualification on 01.09.2016, she made a claim for appointment of her as Assistant Professor. It is to be noted in this regard, in the meantime, two vacancies of Assistant Professors in Economics have occurred in the college, consequent to the retirement of one Kuttiachan and one Prakash Joseph, on 31.03.2016 and 31.05.2016, respectively. As on the date the petitioner became qualified by acquiring a Ph.D, the said posts remained vacant.
8. Accordingly, the 2nd respondent, the Principal of the College, issued Ext.P11 letter to the 6 th respondent seeking concurrence of the University for appointing the petitioner as the Assistant Professor in the light of Ext.P9 Government Order. Acting upon the same, the 6th respondent University sought clarification from the Government with respect to the same, which resulted in Ext.P13 communication issued by the Principal Secretary to the Government, wherein, it was found that the petitioner is eligible for the benefits stipulated in Ext.P9 Government Order and requested the Director of Collegiate Education, Thiruvananthapuram to absorb WP(C) Nos.31067 & 40045 OF 2018 10 her in the UGC scale with effect from the date of acquiring of UGC qualification. Consequently, Ext.P14 was issued by the University directing the Principal to absorb the petitioner to UGC scale with effect from the date of acquiring the UGC qualification. The said communication is produced as Ext.P15. Exhibit P16 is the workload for the Department of Economics in the college determined was 40 hours per week, and hence, two Assistant Professors could be accommodated in the Department of Economics.
9. In the meantime, the 1st petitioner initiated proceedings to fill up one of the retirement vacancies in the college. As part of the same, Ext.P17 notification was published by the 1 st respondent in Mathrubhumi daily dated 22.04.2017, wherein only one post was notified to be filled up against the vacancy of Assistant Professor in Economics. A Select Committee with a Government nominee was also constituted to carry out the selection process for filling the vacancy of Sri.Prakash Joseph, who retired on 31.05.2016. Accordingly, the selection process was conducted in which, among other candidates, 7th and 8th respondents participated. As against the vacancy notified in Ext.P17, the 7 th respondent was appointed as Assistant Professor in the College, and he joined duty on 01.06.2017.
WP(C) Nos.31067 & 40045 OF 2018 11
10. However, later, without conducting any separate selection process by any further notification, the 8 th respondent was given appointment as Assistant Professor in Economics against the vacancy of Sri.Kuttiachan, who retired on 31.03.2016. According to the petitioner, the said appointment could not have been made for more than one reason; firstly, the petitioner was entitled to be appointed as Assistant Professor in that vacancy. Secondly, the appointment of the 8th respondent in the second vacancy was made not by following the procedure prescribed in this regard, as there was no notification for the said vacancy, which is a mandatory requirement as per Calicut University (Condition of Services of Teachers and Members of Non Teaching Staff) First Statutes, 1979 (hereinafter referred to as 'First Statutes, 1979'). W.P. (C)31067/2018 was submitted in such circumstances seeking the following reliefs:
"i) Call for the records leading to Ext.P18 appointment order of the 8th respondent and quash the same.
ii) To declare that in view of Ext.P9,P10,P13 and P14 petitioner is entitled for placement in UGC scale and to get a posting as Assistant Professor Economics in first respondent college.
iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 3 to 6 not to WP(C) Nos.31067 & 40045 OF 2018 12 grant approval and concurence to the appointment of 8 th respondent overlooking the claim of the petitioner;
iv) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 1 st respondent to give placement to the petitioner in the UGC scale of pay and posting as Assistant Professor of Economics in the college from the date on which the petitioner acquired Ph.D ie. from 1.9.2016 taking note of the Government Orders with immediate effect."
11. WP(C)No.40045/2018 was submitted by the 8 th respondent in WP(C)No.31067/2018, who was appointed in the vacancy which arose consequent to the retirement of Kuttiachan, which is under challenge in WP(C)No.31067/2018 and the grievance of the petitioner in WP(C)No.40045/2018 (8 th respondent in WP(C)No.31067/2018) is against the denial of approval of appointment of the said petitioner and also the orders issued by the Government and the University, directing the absorption of the petitioner in WP(C)No.31067/2018, as Assistant Professor by granting UGC scale. According to the petitioner in WP(C)No.40045/2018, the petitioner in WP(C)No.31067/2018 is not eligible to be given appointment as Assistant Professor as she does not have the qualification of Master's degree with 50% marks which is the minimum requirement as per the UGC regulations. Besides, it WP(C) Nos.31067 & 40045 OF 2018 13 was also pointed out that, the said person did not have the qualification of Ph.D as on the date of occurrence of vacancies, as she could acquire the Ph.D qualification only on 01.09.2016. WP(C)No.40045/2018 was submitted by the petitioner seeking the following reliefs:
"i) call for the entire records that lead to the passing of Exhibits P10,P11,P12 and quash the same by the issuance of a writ of certiorari or by any other appropriate writ, direction or order;
ii) to declare that the 8 th respondent is ineligible and unqualified to be appointed as Assistant Professor(Economics)in the U.G.C. cadre and the petitioner is fully eligible and qualified for that post as per UGC Regulations 2010 and University Statutes and regulations;
iii) to issue a writ of mandamus commanding the respondents to approve the appointment of the petitioner as Assistant Professor(Economics) w.e.f. 3.1.2018 with all consequential service benefits;
iv) to pass any orders this Hon'ble Court deems fit and proper in the facts and circumstances of the case."
12. In WP(C)No.31067/2018, a counter affidavit has been submitted by the 1st respondent-Manager opposing the reliefs sought in the writ petition and justifying the selection process which led to the appointment of the 8 th respondent. It was contended that the petitioner was not duly qualified and, therefore, not entitled to the benefits of the UGC scale. The 8 th respondent, the petitioner in WP(C) Nos.31067 & 40045 OF 2018 14 WP(C)No.40045/2018, also filed a counter affidavit re-iterating the contentions she raised in WP(C)No.40045/2018. A counter affidavit has been filed by the 6th respondent-University in WP(C)No.31067/2018, wherein it was averred that, as per the workload in the department, it is 40 hours per week. The workload of the petitioner in WP(C)No.31067/2018 and the 7 th respondent is 16 hours each per week, and as far as the 8th respondent is concerned, it is only 8 hours per week. According to the University, as per the workload assessed as above, only two posts of Assistant Professors can be sanctioned and, therefore, the 8 th respondent could not have been given appointment as the Assistant Professor. It was in those circumstances, the approval of appointment of the 8th respondent was declined. Necessary documents regarding the assessment of workload and other documents were produced by the said respondent. It is in these factual backgrounds these writ petitions are being considered.
13. Heard Sri. V. Varghese, the learned counsel for the petitioner in WP(C)No.31067/2018, who is the 8 th respondent in WP(C)No.40045/2018, Sri.George Poonthottam, the learned Senior Counsel appearing for the petitioner in WP(C)No.40045/2018, the 8th respondent in WP(C)No. 31067/2018, Sri.P.C.Sasidharan, the WP(C) Nos.31067 & 40045 OF 2018 15 learned Standing Counsel for the Calicut University, Sri.S.Krishnamoorthy, the learned counsel appearing for the University Grants Commission and Sri.Dinesh R. Shenoy, the learned counsel appearing for the Pazhassiraja College.
14. The main question in both these writ petitions pertains to the appointment of the 8th respondent as Assistant Professor. The learned counsel for the petitioner specifically contends that the said appointment is not legally sustainable as the same is not in tune with the statutory procedure contemplated under section 57(5) of the Calicut University Act, r/w. statute 3 of the First Statutes, 1979). The learned Senior Counsel appearing for the 8 th respondent, the petitioner in WP(C)No.40045/2018, contends that, the petitioner does not have the locus standi to challenge the appointment of the 8th respondent, as the petitioner does not have the eligibility to be considered for appointment as Assistant Professor. This contention is raised by the learned Senior counsel mainly on the reason that the petitioner does not satisfy the criteria of minimum marks for the Master's degree, which is 55%,(as per the UGC norms) as the petitioner has only 52% marks for the post- graduation. As per the UGC regulations, the persons having Ph.D degree can be granted relaxation of 5% marks, provided they WP(C) Nos.31067 & 40045 OF 2018 16 acquired the post graduation prior to 19.05.1991, whereas, the petitioner had acquired the said qualification only in 1992. Therefore, she is not eligible for the exemption. Besides, it was also contended that, the petitioner was not having the NET qualification/Ph.D qualification as prescribed by the UGC regulation as on the date of occurrence of vacancy i.e., on 31.03.2016, as the petitioner had acquired Ph.D qualification only on 1.9.2016.
15. It was pointed out by the learned Senior Counsel that since the petitioner does not have the eligibility to be considered for appointment of Assistant Professor, the challenge raised at her instance cannot be considered for want of locus standi.
16. I have carefully considered all the contentions and perused the records. As far as the locus standi of the petitioner to challenge the appointment of the 8th respondent is concerned, the contention raised by the learned Senior Counsel cannot be accepted. This is particularly because this is not a case in which the challenge is confined to the appointment of the 8th respondent, which was otherwise approved by the University. On the other hand, the University had already rejected the approval of the appointment of the 8th respondent by issuing an order in this regard and a separate writ petition was submitted by the 8 th respondent WP(C) Nos.31067 & 40045 OF 2018 17 challenging the said decision. Therefore, to establish her rights, there is a burden upon the 8 th respondent to show that she is the person duly appointed by the authorities concerned after following the procedure established by law. The contentions raised by the petitioner, as well as the 8th respondent, have to be considered in that perspective.
17. Thus, when coming to the said question, one crucial aspect to be noticed in this regard is that, when these writ petitions came up for consideration before this Court on 26.04.2024, an interim order was passed by this Court, directing the college to produce the notifications issued by the college for two vacancies of Assistant Professors, consequent to which, the appointment of the 7th and 8th respondents were made. In response to the aforesaid order, the college has submitted a statement in WP(C)No.40045/2018 along with the documents pertaining to the selection process. Conspicuously, despite the specific order passed by this Court to produce the notifications, showing that there were two vacancies of Assistant Professor at the relevant time, no such notification has been produced. On the other hand, in WP(C)No.31067/2018, the petitioner therein had produced an Ext.P17 notification, which would show that only one post of WP(C) Nos.31067 & 40045 OF 2018 18 Assistant Professor (Economics) was notified for direct recruitment, and the said post was filled up by appointing the 7 th respondent. Moreover, in the statement filed by the college, it is also not specifically averred that, the notification was made for two vacancies, but when reading the contents of the averments in the said statement as a whole, it leads to the conclusion that, only one vacancy was notified, as contended by the petitioner in WP(C)No.31067/2018 and as reflected in Ext.P17 notification. Moreover, Annexure R6(a), produced along with the statement submitted in WP(C)No.40045/2018, is the order of the Principal Secretary to the Government, wherein, the Government representative was nominated for the selection process pursuant to Ext.P17. In Annexure R6(a), it has been specifically mentioned that, the nomination of Government representative to staff selection committee is for filling up of one vacancy in Economics. In the said order, it is specifically mentioned that, it should be ensured that the selection is made to the above vacancy only. Annexure R6(c) is the minutes of the selection committee and there also, it is specifically mentioned that there is only one vacancy in the department and a select list of four persons was prepared, wherein the 7th respondent was the serial No.1 and the 8th respondent was WP(C) Nos.31067 & 40045 OF 2018 19 second. Based on the decision taken by the selection committee, the 7th respondent was appointed against the notified vacancy who joined duty on 1.6.2017. Later, the 8th respondent, who was ranked second in the select list, was given an appointment without any separate selection process, and she joined duty on 1.1.2018. Thus, it is evident from the records that, the appointment of the 8 th respondent was on the basis of select list prepared by the Committee constituted as per Annexure R6(a) which was intended for only one vacancy.
18. As per section 57(5) of the Calicut University Act, 1975, for making appointment by direct recruitment, the post shall be notified as prescribed in the Statutes. The Calicut University formulated the First Statutes, 1979, containing the provisions regarding the conditions of service of teaching and members of the non-teaching staff. Chapter 2 of the First Statutes,1979 deals with the conditions of service of teachers in private colleges, and statute 3 thereof provides as follows:
"3. Appointment of teachers by direct recruitment: For making appointment to the posts of teachers by direct recruitment, the posts shall be advertised in two English and two Malayalam daily newspapers approved by the University WP(C) Nos.31067 & 40045 OF 2018 20 giving a minimum period of thirty days for the aspirants to apply"
19. Thus, it is evident that, the notification of the post and inviting applications for the same, is a mandatory requirement for making appointments. As far as the appointment of the 8 th respondent is concerned, the same was made not on the basis of a notification in this regard and therefore, it cannot be treated as a selection process duly conducted as prescribed by law. In the counter affidavit and the statement submitted by the college, they attempted to justify the appointment of the 8th respondent, mainly placing reliance upon the Statute 10(5) of the First Statutes, 1979, wherein, it is mentioned that, a select list prepared by the Selection Committee shall remain in force only for a period of one year or till a fresh select list is drawn up, whichever is later. Therefore, it was contended that, the appointment is valid as the 8 th respondent was included in the select list and serial No 2. However, the said contention cannot be accepted. This is particularly because, as per section 57(5) of the Calicut University Act, the notification is a mandatory requirement, and the same cannot be done away with under any circumstances. The learned Senior Counsel relies on a decision rendered by this Court in Reema R. v. Guruvayur WP(C) Nos.31067 & 40045 OF 2018 21 Devaswom and Ors. [2021(4)KLT 417] wherein it is observed that the rule that, the vacancies in excess of those notified to the public for selection cannot be filled except through a separate selection procedure initiated through a different notification, is not an absolute rule and can be deviated from in exceptional circumstances where the exigencies of the service mandate a different procedure.
20. However, after carefully going through the said decision, I am of the view that, the observations made by this Court therein cannot be made applicable to this case, as the statutory provision under section 57(5) of the Calicut University Act specifically contemplates for a notification for filling up of the post. The factual position in the said decision was different and in the said case, there was no relevance of the statutory provision like section 57 (5). Moreover, the exemption contemplated in the aforesaid decision is only under exceptional circumstances, wherein the exigencies of service mandate a different procedure. In this case, neither in the writ petition nor in the counter affidavit/statement submitted by the college, no explanation is forthcoming warranting the adoption of a different procedure due to exigencies of exceptional circumstances or otherwise. On the other hand, the WP(C) Nos.31067 & 40045 OF 2018 22 documents would indicate a clear attempt to suppress the fact that only one vacancy was notified for appointment, whereas, two vacancies were filled up. Therefore, under any circumstances, the principles laid down by this Court in Reema's case (supra) cannot be applied to the facts and circumstances of this case.
21. Besides, yet another aspect to be noticed is that, as rightly pointed out by the University, there is no sufficient workload to accommodate the 8th respondent in the college. It is a fact that, even though the petitioner has not been given an appointment as an Assistant Professor, she is continuing in college in the post of Junior Lecturer. The University had taken into account the workload of the petitioner as well as the 7th respondent with 16 hours each, and the balance workload was only 8 hours, which is not sufficient to sanction a 3rd post of Assistant Professor. Therefore, the appointment of the 8th respondent could not have been granted by the University or the Government, and thus, the said finding of the University cannot be interfered with.
22. The next question that arises is whether the petitioner can claim for appointment as Assistant Professor with UGC scale. The main contention raised by the learned counsel for the petitioner in this regard is by placing reliance upon the Government Orders WP(C) Nos.31067 & 40045 OF 2018 23 produced as Exts.P7, P9 and P13. Of course, it is true that the persons who were originally appointed as Junior Lecturers were granted time to secure the NET/Ph.D qualification as prescribed in the UGC regulations, up to 30.06.2013 vide Ext.P7. Later, they were permitted to continue in service as per Ext.P9, even in the absence of acquiring the said qualification, under the State scale. Exhibit P9 also provides for granting UGC benefits to those candidates as and when they acquire the NET/Ph.D qualification. The petitioner contends that she obtained her PhD qualification on 1.9.2016, and hence, she is entitled to the benefits of Ext.P9.
23. However, the crucial aspect is that Exts.P7 and P9 only deal with the qualification regarding NET/Ph.D. As far as the qualifications prescribed under the UGC regulations are concerned, the requirements are very clear. Exhibit R8(b) is the copy of the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards of Higher Education, 2010, in which, clause 4.4.1 deals with the qualification for Assistant Professor for Arts, Humanities, Sciences, Social Sciences, Commerce, Education, Languages, Law, Journalism and Mass WP(C) Nos.31067 & 40045 OF 2018 24 Communication. The qualifications prescribed in clause 4.4.1 are as follows:
"i)Good academic record as defined by the concerned university with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed at the Master's Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign university.
ii) Besides fulfilling the above qualifications, the candidate must have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC like SLET/SET.
iii) Notwithstanding anything contained in the sub-clauses(i)and
(ii) to this Clause 4.4.1, candidates, who are, or have been awarded a Ph.D Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of Ph.D Degree) Regulations,2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities /Colleges/Institutions.
iv. NET/SLET/SET shall also not be required for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted."
24. The learned counsel for the petitioner contends that, as far as the said clause is concerned, it applies to the direct recruitment alone, whereas the petitioner's appointment was not a direct recruitment. According to him, it was a special recruitment WP(C) Nos.31067 & 40045 OF 2018 25 considering the peculiar situation consequent to the delinking of the Pre-degree course, as per the various Government Orders issued in this regard. The learned counsel for the petitioner elaborately contended that the Government had taken a decision to give protection to the Junior Lecturers, who were appointed specifically to take classes in Pre-degree and those who were left without any placement consequent to delinking of Pre-degree. It was pointed out that the Government consciously took a decision to accommodate them in the colleges to enable them to continue in their service till retirement on superannuation. Therefore, it was contended that, the qualification prescribed for direct recruitment cannot be made applicable to the case of the petitioner.
25. However, the said contention as such cannot be accepted. Of course, it is true that, clause (4) of Ext.R8(b) deals with direct recruitment. However, clause 3.0.0. provides for the "Recruitment and Qualifications". Clause 3.3.0 thereof, specifically contemplates that the minimum requirements of a good academic record, 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the master's level and qualifying in the National Eligibility Test (NET), or an accredited test (State Level Eligibility Test-SLET/SET), shall remain for the appointment of WP(C) Nos.31067 & 40045 OF 2018 26 Assistant Professors. As far as clause 3.3.0 is concerned, the same is not confined in its application, to the direct recruitment alone, but on the other hand, it prescribes the basic qualification for appointment in the post of Assistant Professor as such. Therefore, the contention that, merely because the petitioner is seeking appointment as part of special recruitment, she is entitled to be given appointment as Assistant Professor, even in the absence of qualifications prescribed by the UGC, cannot be accepted. As far as the post of Assistant Professor is concerned, the same is as per the scheme formulated by the UGC and the very same UGC prescribed certain qualifications for availing the benefits thereof. Therefore, so long as UGC does not provide for any relaxation in the said criteria or qualification, no person can claim for the same, without the requisite qualifications. Of course, it is true that, the State Government has taken a decision to permit the Junior Lecturers to continue in the post even without satisfying the qualification criteria prescribed by the UGC. However, in those Government Orders, it has been specifically made clear that, they can continue in the State scale. Here, the petitioner is an aspirant for a post in the UGC scale and in the absence of necessary qualifications in this regard prescribed by the UGC, she cannot legally claim the same. WP(C) Nos.31067 & 40045 OF 2018 27 Admittedly, even though the petitioner possessed Ph.D qualification, she is lacking the qualification of minimum marks as prescribed by the UGC regulation which is 55%. No orders of the UGC, granting relaxation in the marks in the case of candidates like the petitioner were brought to the notice of this court. Therefore, the petitioner cannot be treated as a person satisfying the criteria prescribed by the UGC which enables her to claim UGC scale. In such circumstances, the contention raised by the petitioner seeking appointment to the post of Assistant Professor cannot be considered. The right of the petitioner is confined to continue in service as a Junior Lecturer as permitted by the State Government as per the various orders issued in this regard.
In such circumstances, these Writ Petitions are disposed of, declaring that the petitioner in WP(C)No.31067/2018 is not entitled to be appointed as Assistant Professor with UGC scale, since she does not satisfy the minimum qualification criteria prescribed by the UGC in this regard. However, she shall be entitled to continue as a Junior Lecturer till her superannuation with all the benefits available to her as per the scale prescribed by the State Government. In the light of the above, Exhibits P13 and P14 orders are quashed to the extend those orders directed the absorption of the petitioner in UGC WP(C) Nos.31067 & 40045 OF 2018 28 scale. Similarly, it is held that the petitioner in WP(C)No.40045/2018 is not entitled to get approval of appointment in view of the fact that her selection was not made by following the statutory procedure contemplated under the Calicut University Act and Calicut University (Condition of Services of Teachers and Members of Non Teaching Staff) First Statutes, 1979.
Sd/-
ZIYAD RAHMAN A.A. JUDGE pkk WP(C) Nos.31067 & 40045 OF 2018 29 APPENDIX OF WP(C) 40045/2018 PETITIONER'S EXHIBITS EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF M.A. (APPLIED ECONOMICS) ISSUED BY THE PONDICHERRY UNIVERSITY.
EXHIBIT P2 A TRUE COPY OF THE CONSOLIDATE GRADE REPORT ISSUED BY THE PONDICHERRY UNIVERSITY OF M.A.APPLIED ECONOMICS DATED 3.12.2009.
EXHIBIT P3 A TRUE COPY OF THE CERTIFICATE OF AWARD DATED 2.4.2010.
EXHIBIT P4 A TRUE COPY OF THE CERTIFICATE OF DEGREE OF DOCTOR OF PHILOSOPHY DATED 4.10.2016.
EXHIBIT P5 TRUE COPY OF APPOINTMENT ORDER DATED 1.1.2018.
EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDER G.O.(MS) NO.30/96/H.EDN. DATED 12.2.1996.
EXHIBIT P7 TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.1315/2012/G.EDN. DATED 27.6.2012.
EXHIBIT P8 TRUE COPY OF GOVERNMENT ORDER G.O.(MS) NO.401/10/H.EDN. DATED 18.12.2010.
EXHIBIT P9 TRUE COPYOF THE RELEVANT PAGES OF THE U.G.C REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT TEACHERS AND OTHER ACADEMIC STAFF IN UNIVERSITIES AND COLLEGES AND MEASURES FOR THE MAINTENANCE OF STANDARDS IN HIGHER EDUCATION 2010.
EXHIBIT P10 A TRUE COPYOF THE LETTER NO.D2/139/2017/H.EDN. DATED 23.1.2018 OF THE IST RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE ORDER OF THE UNIVERSITY DTED 12.2.2018.
EXHIBIT P12 TRUE COPY OF THE ORDER OF THE UNIVERSITY DATED 31.10.2018.
Exhibit P13 TRUE COPY OF THE MARK LIST SIGNED BY ALL WP(C) Nos.31067 & 40045 OF 2018 30 MEMBERS OF THE INTERVIEW BOARD EXHIBIT P14 TRUE COPY OF THE LETTER WRITTEN BY THE 7TH RESPONDENT TO THE UNIVERSITY DATED 15/11/2018 EXHIBIT P15 TRUE COPY OF THE WORKLOAD STATEMENT FOR THE YEAR 2018-2019 OF THE DEPARTMENT OF ECONOMICS EXHIBIT P16 TRUE COPY OF ORDER NO. D1/2/2017/ H.EDN.
DATED 31/08/2019 RESPONDENTS' ANNEXURES ANNEXURE R6(A) TRUE PHOTOCOPY OF LETTER ISSUED BY THE UNDER SECRETARY, GOVERNMENT OF KERALA, HIGHER EDUCATION (D) DEPARTMENT DATED 8/3/2017.
ANNEXURE R6(B) TRUE PHOTOCOPY OF REAPPOINTMENT ORDER DATED 12/7/2012 TO SILVI T.S. ANNEXURE R6(C) TRUE PHOTOCOPY OF MINUTES OF STAFF SELECTION COMMISSION DATED 29/5/2017 WITH CONSOLIDATED STATEMENT ANNEXURE R6(E) TRUE PHOTOCOPY OF FORWARDING LETTER DATED 9/8/2018 BY 6TH RESPONDENT TO THE REGISTRAR, UNIVERSITY CALICUT DATED 16/2/2018 ANNEXURE R6(F) TRUE PHOTOCOPY OF LETTER DATED 31/10/2018 ISSUED TO THE REGISTRAR BY THE 6TH RESPONDENT.
ANNEXURE R6(G) TRUE PHOTOCOPY OF LETTER DATED 15/11/2018 ISSUED BY THE 6TH RESPONDENT TO THE DEPUTY REGISTRAR, CALICUT UNIVERSITY.
ANNEXURE R6(D) TRUE PHOTOCOPY OF APPOINTMENT ORDER DATED 1/1/2018, ISSUED TO MERIN S. THADATHIL.
EXHIBIT R8(A) TRUE COPY OF THE PAPER NOTIFICATION ISSUED BY THE 6TH RESPONDENT EXHIBIT R8(B) TRUE COPY OF THE ORDER OF THE 1st REPONDENT DATED 8.3.2017 WITH TYPED COPY EXHIBIT R8(C) TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT DATED 18.05.2017 EXHIBIT R8(D) TRUE COPY OF THE LETTER SENT BY THE 7TH RESPONDENT TO 4TH RESPONDENT DATED 25.01.2017 EXHIBIT R8(E) TRUE COPY OF THE COMMUNICATION ISSUED BY THE WP(C) Nos.31067 & 40045 OF 2018 31 4TH RESPONDENT DATED 27.07.2017 EXHIBIT R8(F) TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 23.01.2018 EXHIBIT R8(G) TRUE COPY OF THE LETTER ISSUED BY THE 4TH RESPONDENT DATED 12.02.2018.
EXHIBIT R8(H) TRUE COPY OF THE RELEVANT PORTION OF THE GO(P)nO.171/99 DATED 21.12.99 EXHIBIT R8(I) TRUE COPY OF THE GO(MS) NO.165/12/H.Edn DATED 1.6.2012 EXHIBIT R8(J) TRUE COPY OF THE REPLY RECEIVED BY THE PETITIONER UNDER THE R.T. ACT DATED 26.04.2011.
WP(C) Nos.31067 & 40045 OF 2018 32APPENDIX OF WP(C) 31067/2018 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF POST GRADUATE DEGREE.
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF BACHELOR OF EDUCATION.
EXHIBIT P3 TRUE COPY OF THE G.O.(MS)NO.30/96/H.EDN DATED 12.2.96.
EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER DATED 20.2.1997 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE G.O.(MS)75/2009/H.EDN.DATED 1.7.2009.
EXHIBIT P6 TRUE COPY OF THE G.O.(RT)NO.1315/2012/H.EDN DATED 27.6.2012.
EXHIBIT P7 TRUE COPY OF THE G.O.(MS)NO.401/10/H.EDN DATED 18.12.10.
EXHIBIT P8 TRUE COPY OF THE RE-APPOINTMENT ORDER DATED 12.7.2012 ISSUED BY 1ST RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE G.O.(MS)NO.165/12/H.EDN DATED 1.6.12.
EXHIBIT P10 TRUE COPY OF THE CERTIFICATE OF AWARD OF RESEARCH DEGREE IN ECONOMICS DATED 2.11.2016. EXHIBIT P11 TRUE COPY OF THE LETTER SENT BY THE 2ND RESPONDENT TO 6TH RESPONDENT DATED 25.1.2017.
EXHIBIT P12 TRUE COPY OF THE LETTER ISSUED BY 6TH
RESPONDENT TO THE 2ND RESPONDENT DATED
27.7.2017.
EXHIBIT P13 TRUE COPY OF THE LETTER ISSUED BY 3RD
RESPONDENT TO 4TH AND 6TH RESPONDENT DATED
23.1.2018.
EXHIBIT P14 TRUE COPY OF THE LETTER ISSUED BY THE 6TH
RESPONDENT TO THE 2ND RESPONDENT DATED
12.2.2018.
WP(C) Nos.31067 & 40045 OF 2018 33
EXHIBIT P15 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER TO THE 1ST RESPONDENT DATED
26.2.18.
EXHIBIT P16 TRUE COPY OF THE WORK LOAD OF 2016-17 IN
ECONOMICS DEPARTMENT.
EXHIBIT P17 TRUE COPY OF THE NOTIFICATION PUBLISHED IN
MATHRUBHUMI DAILY DATED 22.4.2017.
EXHIBIT P18 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO
8TH RESPONDENT DATED 1.1.2018.
EXHIBIT P19 TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE PETITIONER BEFORE THE 6TH RESPONDENT
DATED 15.2.2018.
EXHIBIT P20 TRUE COPY OF THE GOVERNMENT LETTER
NO.D2/467/2016/H.EDN DATED 08.03.2017.
EXHIBIT P21 TRUE COPY OF THE RELEVANT PORTION OF HAND
BOOK SHOWING PETITIONER AS THE HOD OF
ECONOMICS DEPARTMENT FOR THE YEARS 2016-17.
EXHIBIT P22 TRUE COPY OF THE RELEVANT PORTION OF HAND BOOK SHOWING PETITIONER AS THE HOD OF ECONOMIES DEPARTMENT FOR THE YEARS 2017-18.
EXHIBIT P23 TRUE COPY OF THE RELEVANT PORTION OF HAND BOOK SHOWING PETITIONER AS THE HOD OF ECONOMICS DEPARTMENT FOR THE YEARS 2018-19.
EXHIBIT P24 TRUE COPY OF THE ORDER G.O.(RT) NO.1070/08/H.EDN. DATED 18.07.2008.
EXHIBIT P25 TRUE COPY OF THE REPLY RECEIVED BY THE PETITIONER UNDER R.T.I. ACT.
RESPONDENTS' EXHIBITS EXHIBIT R-8(A) TRUE COPY OF THE LETTER DATED 09/08/2018 ISSUED BY THE 2ND RESPONDENT TO THE UNIVERSITY.
EXHIBIT R-8(B) TRUE COPY OF THE RELEVANT PAGES OF THE U.G.C REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC WP(C) Nos.31067 & 40045 OF 2018 34 STAFF IN UNIVERSITIES AND COLLEGES AND MEASURES FOR THE MAINTENANCE OF STANDARDS IN HIGHER EDUCATION 2010.
EXHIBIT R-8(C) TRUE COPY OF THE CONSOLIDATED GRADE REPORT ISSUED BY THE PONDICHERRY UNIVERSITY FOR M.A. ECONOMICS (SPECIALISED IN APPLIED ECONOMICS) DATED 03/12/2009.
EXHIBIT R-8(D) TRUE COPY OF THE CERTIFICATE OF M.A. DEGREE AND APPLIED ECONOMICS ISSUED BY THE PONDICHERRY UNIVERSITY DATED 02/04/2010.
EXHIBIT R-8(E) TRUE COPY OF PH.D CERTIFICATE DATED
04/10/2016 ISSUED BY THE UNIVERSITY OF
PONDICHERRY.
EXHIBIT R1 (A) A TRUE COPY OF UGC REGULATIONS 2010 RELEVANT
POSITION.
EXHIBIT R1 (B) A COPY OF THE LETTER FROM THE PRINCIPAL OF
PAZHASSIRAJA COLLEGE TO THE REGISTRAR OF
CALICUT UNIVERSITY DATED 09/08/2018.
//TRUE COPY//
SD/-
P.S. TO JUDGE