Dr. M.N. Muhammed Unni @ Mustaffa vs Dr.M.V.Sudhakaran on 25 July, 2014

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Kerala High Court

Dr. M.N. Muhammed Unni @ Mustaffa vs Dr.M.V.Sudhakaran on 25 July, 2014

1.This appeal is filed against the judgment of the learned single Judge allowing W.P(C).No.1050/13 filed by the first respondent. The main prayers in the writ petition were to declare that the appellant is not eligible or qualified to be selected and appointed as 'Reader' in the Academic Staff College of the Calicut University and also to quash Ext.P8, the score sheet of the candidates who had attended the interview held on 27.10.2010. By the judgment under appeal, learned single Judge held that for dearth of the prescribed experience, the appellant was ineligible for the post in question and on that basis, allowed the writ petition. It is this judgment which is under challenge in the writ appeal.

2.We heard the learned counsel for the appellant, learned counsel for the first respondent and the standing counsel for respondents 2, 3 and 4. WA.1126/14 2

3.The University issued Ext.P1 notification, inviting applications to various posts, including that of a temporary post of Reader in the Academic Staff College. The qualification and experience prescribed for the post of Reader are as follows:

"(i) Good academic record with a Doctoral degree or equivalent published work in the concerned subject of this University or an equivalent degree from an Indian/Foreign University recognized as equivalent thereto with a doctoral degree or an equivalent published work. In addition to these, candidates who join from outside the University system shall also possess at least 55% of the marks (without grace or rounding off) or an equivalent grade of B in 7 point scale with letter grades of O,A,B,C,D,E and F at the Master's degree level.

(ii) Five years of teaching and/or research excluding the period spent for obtaining the research degree and has made some mar in the areas of scholarship as evidenced by quality of publications, contribution to educational innovation, design of new courses and curricula."

4.There were four eligible applicants and they were called for an interview held on 3.3.2012. The interview was attended only by the appellant and the first respondent, the writ petitioner. WA.1126/14 3

5.Ext.R1(a), minutes of the selection committee, shows that the committee consisted of, apart from the Registrar-in-charge as the Secretary, the Vice Chancellor (Chairman); Dr.D.S.Rathore, Ex-vice Chancellor of Kannur University; Dr.Michael Tharakan, Vice Chancellor, Kannur University; Dr.C.Balan, Director, Academic Staff College (ASC) Kannur University; Dr.Meena.R.Chanda Warker, Director, ASC, Karnataka University, Dharward and Dr.K.X.Joseph, Director, ASC, Calicut University. In the interview, the appellant was awarded 47.5 marks and the first respondent was awarded 38.16 marks. As per Ext.R1(a) minutes of the committee, on the basis of the assessment made by it, the selection committee unanimously recommended the appellant for appointment as Reader in the Academic Staff College.

6.Thereafter, Ext.P7 memo dated 23.3.2012 was issued, informing the appellant that he has been selected for appointment as Reader against a temporary vacancy and directing him to report for duty within 15 days. Accordingly, he joined the post. It is in this background, the writ petition was filed by the first WA.1126/14 4 respondent, mainly contending that the appellant was ineligible for the post of Reader as he was not qualified for the same. His contention was that the appellant did not have the prescribed 5 years teaching experience after obtaining Ph.D. degree.

7.On facts, it is seen that the appellant obtained Ph.D. degree from Calicut University only with effect from 15.9.2007 vide Ext.P13 notification. The last date for receipt of applications notified in Ext.P1 was 28.1.2011. On this basis, it was contended that as on that date, the appellant had only 3 years 4 months and 14 days teaching experience, which fell short of 5 years teaching experience prescribed by the University. The fact that the appellant did not have 5 years experience after obtaining Ph.D was not disputed by the appellant or the University. It was in such circumstances that the learned single Judge accepted the contention that the experience prescribed should be acquired after the acquisition of educational qualification and that since the appellant did not have the prescribed experience, he was ineligible for the post in question and that WA.1126/14 5 therefore, his selection and appointment were illegal.

8.The contention raised by the learned senior counsel for the appellant is that the notification did not specifically prescribe that the experience should be one acquired after the qualification and that therefore, the experience acquired prior to the acquisition of Ph.D could also be reckoned. This finds support in the case of the University also. However, we are unable to accept this contention for the reason that in the context of selection and appointment to the teaching posts in the Calicut University itself, where the prescription of experience was similar in all respects, in the judgments in Vijayachandran Pillai B.(Dr.) v. University of Calicut rep. By its Registrar and Others [2009(2) KHC 925] and Vasundhara G. v. Dr.Sallas Benjamin and Others [2010(1) KHC 514], this Court has already held that the experience prescribed is teaching experience gained after acquiring the educational qualifications. These judgments have become final and therefore, the principles laid down WA.1126/14 6 by this Court in these two judgments being binding on it, should have been followed by the University. However, the University has, for reasons which are not disclosed, chosen to deviate from these principles and selected and appointed the appellant. Therefore, the selection of the appellant who did not have the prescribed experience was illegal and the learned single Judge was fully justified in his conclusions.

9.The manner in which the experience should be reckoned was the precise issue in the aforesaid two judgments. In the case of Vasundhara (supra), the contention raised before this Court was that in the absence of a prescription in the notification that the experience should be gained after qualification, there was no reason to insist on the same. In that case, an additional affidavit was filed by the University itself and referring to the said affidavit, this Court held in paragraph 8 of the judgment thus;

"the learned standing counsel for the University (sic) further pointed out that in the additional counter affidavit filed, it was specifically WA.1126/14 7 pointed out that the teaching experience must be that of a regular teacher and the experience must be one gained after the acquisition of the Ph.D qualification".

The post involved in that case was Reader in Life Science and the experience prescribed was also in similar terms. Therefore, when Vasundhara's case (supra) was considered by this Court, the Calicut University had sworn to an affidavit before this Court that teaching experience prescribed for the post of Reader must be one gained after acquisition of Ph.D qualification. It is in spite of it, that in this case, the University has chosen to state in its statement dated 5.6.2014 that "the selection has been made on the basis of notification which does not state anywhere that the mandatory experience of five years should be after qualifying Ph.D."

It is further stated that "if a candidate had regular and approved teaching experience before obtaining Ph.D, the same also could be considered as eligible experience and if he had five years of such WA.1126/14 8 experience before or after obtaining research degree, he is eligible to apply to the post".

10.In our view, this contention raised in the statement filed is not only against the University's own stand before this Court in Vasundhara's case (supra) but also against at least two judgments of this Court referred to earlier. We not only reject this contention of the University but also disapprove this conduct on its part.

11.There is a disturbing aspect of this matter. This Court had occasion to consider several writ petitions concerning appointments in Calicut University and in many cases, orders have been passed interfering with the appointments made. In spite of all this, the University apparently is bent upon repeating the illegalities.

12.We are satisfied that those who are responsible for such repeated illegal selections made in violation of the Rules and binding judgments of this Court cannot go scot free and they should be identified, proceeded WA.1126/14 9 against and suitably penalised. The Vice Chancellor shall take appropriate action in this regard.

13.At one stage, counsel for the appellant contended that several appointments were made by the University taking into account experience acquired before becoming qualified, despite similar prescriptions for the posts. According to him, all these persons are continuing in service. Clearly, if any such appointment has been made as contended, it is illegal and this is a matter to be examined. Therefore, we direct that the Vice Chancellor of the Calicut University will examine whether any appointment has been made in the University after 18.1.2010 when Vasundhara's case (supra) was decided by this Court, in deviation of the principles laid down therein that teaching experience prescribed for the post of Reader is the experience gained after acquiring Ph.D. If any such appointments are found to have been made, the Vice Chancellor shall take appropriate action to set right the illegality committed, in accordance with law and in compliance with the principles of natural justice.

WA.1126/14 10 We dismiss the appeal and direct that the Registry will forward a copy of this judgment to the Chief Secretary to the Government of Kerala for information and appropriate action in the matter.

Sd/-

ANTONY DOMINIC, Judge.

Sd/-

P.D.RAJAN, Judge.

kkb.

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