Kerala High Court
The University Grants Commission vs Rajkumar K.K on 22 May, 2019
Bench: K.Vinod Chandran, V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 22ND DAY OF MAY 2019 / 1ST JYAISHTA, 1941
W.A.No.1855 of 2015
AGAINST THE JUDGMENT IN WP(C).NO.496/2015 DATED 13-03-2015
OF HIGH COURT OF KERALA
APPELLANT/3RD RESPONDENT:
THE UNIVERSITY GRANTS COMMISSION,
REPRESENTED BY THE SECRETARY,
UNIVERSITY GRANTS COMMISSION,
BAHADUR SHAH ZAFER MARG, NEW DELHI - 110 001.
BY STANDING COUNSEL SRI.S.KRISHNAMOORTHY.
RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2 IN WP:
1 RAJKUMAR K.K., AGED 43 YEARS, S/O.K.K.RARAN, RESIDING
AT "DEVANKANAM", MADAPPALLY COLLEGE P.O., VADAKARA,
KOZHIKODE.
2 KANNUR UNIVERSITY,
MANGATTUPARAMBA, KANNUR UNIVERSITY CAMPUS P.O.,
KANNUR - 670 567, REP. BY ITS REGISTRAR.
3 THE VICE CHANCELLOR/CHARIMAN-SYNDICATE
OF THE KANNUR UNIVERSITY, MANGATTUPARAMBA,
KANNUR UNIVERSITY CAMPUS P.O., KANNUR - 670 567.
R1 BY ADVS.
SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
SMT.A.A.SHIBI
R2 & R3 BY SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY.
SRI.V.A.MUHAMMED, SC, KANNUR UNIVERSITY
SRI.VIJU THOMAS, SC, KANNUR UNIVERSITY
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2019, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
W.A.No.1855 of 2015 - 2 -
JUDGMENT
Vinod Chandran, J.
The University Grants Commission ["UGC" for brevity"] is the appellant, aggrieved with the judgment of the learned Single Judge. The judgment, in the writ petition filed by the 1st respondent, directed the Kannur University to consider the writ petitioner (1 st respondent) for promotion as Lecturer Senior Scale or Selection Grade without any delay. The UGC submits that the said direction is in violation of the UGC (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 ["Regulations of 2010" for brevity].
2. The brief facts to be noticed are that the 1st respondent was working as Lecturer in Computer Science in N.A.M.College, Kallikandy, affiliated to the Kannur University, which appointment was approved by order dated 12.09.2002. Later, when a vacant post was notified in the Department of Information Science of Kannur University, the 1st respondent applied for the post. Since there were no eligible NET qualified candidates, the 1st respondent, who stood first in the selection, was appointed and his W.A.No.1855 of 2015 - 3 - appointment approved with effect from 28.02.2003. At that time, the Regulations as applicable contained a provision by which there was a relaxation provided to the prescribed qualification in a subject in which NET is not conducted or enough number of candiates with NET qualification are not available. The University is said to have sought the concurrence of the UGC for enabling such relaxation especially in the circumstance of no candidate with NET qualification having appeared for the selection. It is averred that the same was followed up with various reminders; but nothing is produced to substantiate the same. In any event, the 1st respondent continued and what is evident is a communication at Exhibit P4 dated 06.05.2010, again seeking for a relaxation in the minimum qualification prescribed. The earlier communication or the later one was not responded to by the UGC. The 1st respondent continued and in the year 2012, sought for consideration under the Career Advancement Scheme ["CAS" for brevity], a scheme under the Regulations of the UGC. The Syndicate is said to have approved the same as is seen from Exhibit P5 and the Selection Committee also recommended the 1st respondent to be promoted as Lecturer (Senior Scale). Later, the Syndicate by Exhibit P7 resolved to decline the CAS W.A.No.1855 of 2015 - 4 - promotion and directed re-submission of the application after acquiring NET/Ph.D qualification. This is in accordance with the Regulations of the UGC.
3. The learned Single Judge found that a NET qualification is mandatory as per the UGC Regulations; but the writ petitioner-1st respondent was appointed in the year 2003 when there was an Exemption Committee which considered and granted exemption. However, the Exemption Committees were dismantled and at the time of consideration of the writ petition, there was no committee in existence. Hence, there was no scope to direct consideration of the exemption/relaxation as sought for by the University. However, taking into account the fact that the 1 st respondent is an appointee of the year 2003, the learned Single Judge found that he should be given exemption from NET qualification. Exhibit P10 issued by the Government of Kerala was also noticed, which indicated the relaxation being ordered by the State Government in public interest and also in the teeth of dearth of qualified NET hands. It was in this circumstance that the direction was issued to the University for considering the promotion of the 1st respondent.
W.A.No.1855 of 2015 - 5 -
4. The learned Standing Counsel for the UGC Sri.S. Krishnamoorthy specifically referred to P.Suseela v. University Grants Commission [(2015) 8 SCC 129]. The Regulations of 2010 specifically mandated NET qualification for recruitment and appointment of Lecturers/Associate Professors. The relaxation granted by the UGC in its Regulations insofar as the candidates who had acquired Ph.D qualifications beyond a cut off date was said to be improper in view of the specific directions issued by the Central Government under Section 20 of the University Grants Commission Act, 1956 ["UGC Act" for brevity]. The learned Standing Counsel would contend that after 2010 the Exemption Committees were dismantled and there was no scope for considering any exemption. It is also urged that the 1 st respondent did not obtain any exemption; nor did he pursue the application filed by the University before the UGC. Only when the promotion as per the CAS came up for consideration, the 1st respondent woke up from his slumber to get his exemption considered, by which time there were no Committees for consideration of exemption. It is alleged that the 1st respondent's initial appointment itself would be a cause of concern for it being carried out and continued without the exemption being obtained W.A.No.1855 of 2015 - 6 - from the UGC.
5. Sri.P.K.Ibrahim, learned Counsel appearing for the 1st respondent would, however, point out the orders issued by the UGC at Exhibit P1 series, where three Lecturers in different Colleges were granted exemption from NET qualification under different Universities. The appointment of the 1st respondent was as per Exhibit P2, which provided that it is subject to the concurrence of UGC regarding exemption from qualifying NET. The University is said to have made an application for exemption, which the appointee is precluded from pursuing for reason of the UGC not entertaining any individual applications; even as per the existing Regulations. The University had also reminded the UGC about the exemption by Exhibit P4, which was also not responded to. Later, the Syndicate of the University, on the recommendations of a Sub Committee, as per the Minutes at Exhibit P5, directed consideration of the CAS in the case of the 1st respondent especially finding such consideration having been made in the case of another Lecturer in the Mahatma Gandhi University. Later, the Selection Committee also recommended his promotion to the post of Lecturer (Senior Scale). In derogation of all these, the Syndicate of the University which met on W.A.No.1855 of 2015 - 7 - 09.07.2014 declined the CAS promotion and directed him to acquire the NET/Ph.D qualification. It is argued that Exhibit P10 is a clear exemption granted from NET qualification for appointment of teaching staff in the Computer Science Department in various colleges throughout the State. Based on the exemption, the 1 st respondent has a vested right to be continued in the post to which he is appointed and considered for promotions on the due dates as per the CAS. Sri.Ibrahim also refers to a Division Bench decision of this Court in University Grants Commission v. Rajesh R. [2008 (3) KHC 779].
6. We have to notice that the 1 st respondent was appointed in 2003 with a specific condition of exemption being obtained from UGC, which has not been received till date. At the outset we find that Exhibit P10 issued by the Government of Kerala has no bearng and cannot lead to any regulations of the UGC being watered down. The UGC Regulations are statutory in nature and the State Government has no power to exempt the minimum qualifications prescribed therein. The Exemption Committees, admittedly, were in place at the time of appointment of the 1st respondent, as concurred by the UGC and as seen from Exhibit P1 series of exemptions granted W.A.No.1855 of 2015 - 8 - by the UGC itself in the case of three different individuals. We notice that the only communication produced to evidence the application for exemption is Exhibit P4 dated 06.05.2010. Exhibit P4 refers to an Office letter dated 29.11.2003. Hence, definitely exemption was sought for by the University in 2003 itself. But no such order of relaxation was issued; nor was there a consideration of the same. Here we have to notice the Regulations regarding qualification as available in the Regulations of 2000:
"2. Qualification.-- No person shall be appointed to a teaching post in University or in any of institutions including constituent or affiliated colleges recognized under clause (f) of S.2 of the University Grants Commission Act, 1956 or in an institution deemed to be University under S.3 of the said Act in a subject if he/she does not fulfill the requirements as to the qualifications for the subjects as provided in the Annexure".
Provided that any relaxation in the prescribed qualifications can only be made by the University Grants Commission in a subject in which NET is not being conducted or enough number of candidates are not available with NET qualifications for a specified period only. (This relaxation, if allowed, would be given based on sound justification and would apply to affected Universities for that particular subject for the W.A.No.1855 of 2015 - 9 - specified period. No individual applications would be entertained".
As has been found by the Division Bench, the relaxation contemplated is in respect of the University concerned, for a particular subject, for the period specified in the order granting relaxation. It is also provided that no individual applications would be entertained. However, that is not to say that an individual whose appointment has been made subject to a relaxation being considered by the UGC, cannot pursue his remedies to get the consideration expedited. We cannot but observe that though the 1st respondent was appointed in 2003 and an application for exemption said to have been forwarded, it was not pursued properly either by the University or the 1st respondent. Though the 1st respondent could not have made an application by himself, nothing prevented him from approaching this Court for an expeditious consideration. We see such a measure having been adopted by the individual teachers in Rajesh R. Despite our finding that the 1st respondent had not pursued his remedies, we also have to notice that the UGC has not considered the application submitted by the University. As on the date of submission of the application, there were Exemption Committees in place and we also see from Exhibit W.A.No.1855 of 2015 - 10 - P1 series that there have been orders of exemption granted. The UGC, in the statement filed, does not dispute or deny the receipt of an application for exemption. The Exemption Committees admittedly were dismantled only after the Regulations of 2010 came into force. Hence, we do not find any reason to interfere with the appointment made of the 1 st respondent in the College, which also stand approved by the University. The UGC was also guilty of laches insofar as the non-consideration of the application for exemption. The 1st respondent has continued for 15 long years after the initial appointment, which we do not think is liable to be interfered at this stage.
7. The question then arises as to whether the 1st respondent is entitled to CAS, which also is a part of the UGC Regulations. The learned Counsel for the 1st respondent had placed reliance on Rajesh R. Rajesh R was a case in which appointments were made of candidates without NET qualification based on a letter dated 15.06.1998 sent by the Joint Secretary, UGC, New Delhi to the Commissioner and Secretary to Government, Higher Education Department, Government of Kerala. The said communication permitted appointment of persons without NET qualification on condition of their acquiring it within two years. The W.A.No.1855 of 2015 - 11 - appointees could not acquire the said qualification and approached the University for exemption, which request was forwarded to the UGC. The UGC however, replied, pointing out the mandatory requirement of a pass in the NET, without consideration on the aspect of relaxation. The appointees then filed a writ petition aggrieved with the delay in consideration of the relaxation by the UGC and pursuant to a direction issued by this Court, the UGC considered the request for exemption and granted it on condition that they should clear the NET in the relevant subject within two years from the date of communication. The Division Bench found that there was a wrong exercise of power by the UGC insofar as the conditions stipulated being beyond the scope of the power to grant relaxation. When relaxation is granted, it cannot be conditional going by the proviso to the Rule which is extracted herein above, was the specific finding of the Division Bench. What distinguishes the instant case from the cited decision is that the 1 st respondent (writ petitioner) had not obtained any order of relaxation.
8. Be that as it may, we have already found that the University having applied for relaxation at the time of appointment, there cannot be any interference with the W.A.No.1855 of 2015 - 12 - initial appointment especially since the UGC failed to consider the application for relaxation within a reasonable time and the 1st respondent had been continuing all these years under the University. It is also admitted that there were committees constituted to consider the claims submitted for relaxation and such relaxations were granted, as is evident from Exhibit P1 series of documents. The learned Standing Counsel for the UGC submits that there was a specific criteria for such consideration which included the candidates having obtained Ph.D or M.Phil. We are unable to accept such a contention raised by the Standing Counsel especially since no criteria is placed before us as having been drawn up by the appropriate authority. Further, the relaxations as seen from Exhibit P1 is not based on any particular criteria and has been granted for the asking. Hence, there can be no doubt that the appointment of the 1 st respondent has to be upheld and a relaxation also deemed insofar as at present there are no committees constituted to consider relaxation.
9. The learned Counsel for the 1 st respondent has a contention that the 1st respondent having been first appointed in an affiliated college and then appointed in the University itself as a Lecturer, his career advancement W.A.No.1855 of 2015 - 13 - has to be considered from the date of his initial appointment in an affiliated college. We do not see any averment or documentary substantiation; except a casual statement having been made by the first respondent as to the first appointment in an affiliated college. Even if his claim for career advancement arose within six years of such appointment, he ought to have agitated the denial at the appropriate time. From the records we see that the consideration made by the Syndicate on the recommendation of the Sub Committee appointed, is in the year 2012 as is evident from Exhibit P5. Hence, the consideration for career advancement arise in the case of the 1 st respondent only in 2012. He is not seen to have made a request for such career advancement or taken up appropriate remedies against such delayed consideration before any Court of law. Hence, the consideration in the present writ petition can only relate back to the year 2012, by which time the UGC Regulations of 2010 had come into force. UGC Regulations of 2010, according to the learned Standing Counsel for the UGC, required a NET qualification insofar as the initial appointment and any promotions made.
10. We have looked at the Regulations of 2010. We see from Clause 3.3.1 that "NET/SLET/SET is the minimum W.A.No.1855 of 2015 - 14 - eligibility condition for recruitment and appointment of Assistant Professors in Universities/Colleges/Institutions"
(sic). The proviso is also to be noticed, which exempted such requirement in case of candidates who have been awarded a Ph.D degree in accordance with the UGC Regulations of 2009. It is this proviso which was found to be against the directions of the Central Government issued under Section 20 of the UGC Act by the Hon'ble Supreme Court in P.Suseela. P.Suseela considered the prayer for exemption of the candidates who had obtained Ph.D as per the Regulations of 2009. The Hon'ble Supreme Court found that merely because the Regulations of 2009 provided for an exemption with respect to candidates having Ph.D from obtaining NET/SLET/SET, it cannot be said that after the Regulations of 2010 came into force the exemption would apply to all those persons who obtained Ph.D as per the UGC Regulations of 2009. This was found to be clearly in violation of the directions by the Central Government under Section 20. However this finding applies only to those fresh candidates who seek appointment as Lecturers/ Assistant Professors. Here we are called upon to decide the career advancement of a person appointed long before the NET qualification was made mandatory in 2010. W.A.No.1855 of 2015 - 15 -
11. We also noticed that though NET qualification was required even prior to that and also at the time of the 1st respondent's appointment, then there was a provision for relaxation. In such circumstances, it cannot be held that when a relaxation has been granted, then the Lecturer/ Assistant Professor would be required to obtain the NET qualification for further career advancement. In so finding, we are further fortified by the prescription for Associate Professor as per the UGC Regulations of 2010. Here we have to observe that the earlier designation of Lecturer Senior Grade, Selection Grade, etc. have now been re-designated as Assistant Professor, Associate Professor, Professor, Principal, etc. The requirement for appointment as an Associate Professor is seen from Clause 4.3.0 thus:
"i. Good academic record with a Ph.D. Degree in the concerned/allied/relevant disciplines. ii. A Master's Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed).
iii. A minimum of eight years of experience of teaching and/or research in an academic/research position equivalent to that of Assistant Professor in a University, College or Accredited Research Institution/industry excluding the period of Ph.D. research with evidence of W.A.No.1855 of 2015 - 16 - published work and a minimum of 5 publications as books and/or research/policy papers.
iv. Contribution to educational innovation, design of new curricula and courses, and technology - mediated teaching learning processwith evidence of having guideed, doctoral candidates and research students.
v. A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), set out in this Regulation in Appendix III".
The above requirement does not include a qualification in NET/SLET/SET.
12. The 1st respondent herein is said to have obtained his Ph.D on 17.10.2014, as is evident from Exhibit P9. Hence, at least from that date the 1 st respondent is entitled to be considered for promotion under the CAS. The same would have to be considered in accordance with the procedure as stipulated in the existing Regulations of the UGC as on 2014. We also notice that Exhibit P7 though declined CAS promotion on 09.07.2014, directed re-submission of the application after acquiring NET/Ph.D qualification. We have already found that a person in service prior to the Regulations of 2010 need not necessarily possess NET for the purpose of career advancement. Hence, we do not think that the 1st respondent W.A.No.1855 of 2015 - 17 - has to possess a NET qualification to be considered for career advancement after he obtained the Ph.D degree; after the Regulations of 2010.
13. We, hence, modify the judgment of the learned Single Judge in the following terms:
(i) We find that the reliance placed on Exhibit P10 issued by the State Government of Kerala granting exemption from NET qualification would not regulate the affairs of the Universities having UGC recognition. The State Government has absolutely no say in the prescription of minimum qualifications and there cannot be any exemption granted by the State Government as against the statutory regulations framed by the UGC.
(ii) In the context of our other findings, we are of the opinion that there can be no consideration of the promotion of the 1st respondent on career advancement in accordance with the UGC Regulations prior to acquiring of the minimum qualifications for such career advancement. We have already extracted the minimum qualifications required herein above for the purpose of considering promotion from the post of Lecturer/Assistant Proffesor and in such circumstance, we direct the consideration of promotion of the 1st respondent to be made from the post of Lecturer as W.A.No.1855 of 2015 - 18 - on 17.10.2014, the date of acquisition of the Ph.D qualification. The University shall expeditiously, within a period of three months, constitute a committee in accordance with the procedures stipulated in the UGC Regulations of 2010 and consider the career advancement of the 1st respondent in accordance with the Regulations and if found eligible to be promoted, shall be promoted with all attendant benefits from the date on which he has acquired the Ph.D qualification.
The Writ Appeal is partly allowed; but, however, granting partial relief to the 1st respondent-writ petitioner. The impugned judgment stands set aside to the limited extent. Parties are left to suffer their respective costs.
Sd/-
K.VINOD CHANDRAN JUDGE Sd/-
V.G.ARUN JUDGE Vku/-
[ true copy ]