IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1796 of 2007()
1. UNIVERSITY GRANTS COMMISSION,
... Petitioner
Vs
1. RAJESH.R., LECTURER, DEPARTMENT OF
... Respondent
2. M.S.SREEKANT, LECTURER, DEPARTMENT OF
3. A.T.ANSU, LECTURER, DEPARTMENT OF
4. THE KERALA UNIVERSITY REP. BY ITS
5. THE MANAGER, S.N.COLLEGE, CHERTHALA.
For Petitioner :SRI.S.KRISHNAMOORTHY, CGC
For Respondent :SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY.
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :21/07/2008
O R D E R
CR
J.B.Koshy & P.N.Ravindran, JJ.
=====================
W.A.No.1796 of 2007
=====================
Dated this the 21st day of July, 2008.
JUDGMENT
Ravindran,J.
The University Grants Commission, the first respondent in W.P.
(C) No.6157 of 2005, is the appellant in this Writ Appeal. For the sake
of convenience, the parties are referred to as they are arrayed in the
Writ Petition. The brief facts of the case are as follows:
2. By a notification dated 29.7.1999 published in the Kerala
Kaumudi, Mathrubhoomi, Indian Express and the Hindu Dailies, the
Manager, Sree Narayana Colleges invited applications from eligible
candidates for appointment to the post of Lecturer in Computer
Science. The number of vacancies notified was 5. Though the
notification is not produced by any of the parties, the newspapers in
which the notification was published are available in File No.Acf
III/1/006197/2000 produced by the Kerala University. The notification
states that the qualifications are as per University Grants
Commission/University norms. The qualifications in detail, were
WA 1796/07 -: 2 :-
however not set out. The files disclose that the Academic Council of
the Kerala University had at its meeting held on 19.11.1996 prescribed
the qualifications for appointment of teachers in Computer
Science/Electronics in the affiliated colleges offering B.Sc. Computer
Science/Electronics courses. The Kerala University thereupon issued
order No.Acad. A IV/2/2812/95 dated 21.12.1996, the relevant portion
of which reads as follows:
“The Academic Council at its meeting held on
19.11.96 considered along with the recommendations of
the Standing Committee and approved the following
qualifications for appointment of teachers in Computer
Science/Electronics courses in affiliated colleges offering
B.Sc. Computer Science/Electronics courses.
1. Lecturers in Computer Science
(a) First Class B.E./B.Tech. in Computer
Science/Computer Engineering.
OR
(b) First Class B.E./B.Tech. in Electronics/ Electrical
and Electronics Engineering with one year teaching/R&D
Experience in Computer Science/ Computer
Engineering/Computer Application in Universities/
Colleges/ Govt./ Public Sector Organisations.
OR
(c) M.Sc. (Computer Science)/MCA Computer
Science with minimum 55% marks.
NOTE
WA 1796/07 -: 3 :-
(i) Candidates under category (a) & (b) will be
governed by AICTE norms & will be eligible for promotion
only after acquiring Masters degree.
(ii) Candidates under category (c) should have passed NET/SET
in their relevant subject of specialization.
3. The petitioners, who possess MCA degree, applied for
appointment as Lecturer in Computer Science. They were selected by
the selection committee constituted for the purpose and appointed
along with one Smt.Nimi Thilak as Lecturer in Computer Science in
S.N. College, Cherthala as per Ext.P1 proceedings dated 24.12.1999
issued by the Manager, Sree Narayana Colleges. The proposals to
approve the appointment of the petitioners and Smt. Nimi Thilak were
forwarded to the Kerala University by the Principal, Sree Narayana
College, Cherthala to the Registrar of the Kerala University along with
his letter dated 17.2.2000. By Ext.P2 order dated 15.1.2002, the
Kerala University, hereinafter referred to as the “University” for short,
approved their appointment subject to the condition that they should
pass the National Eligibility Test (NET) within two years as stipulated in
letter dated 15.6.1998 sent by the Joint Secretary, University Grants
Commission, New Delhi to the Commissioner and Secretary to
Government, Higher Education Department, Government of Kerala.
4. By Ext.P2, the appointment of Smt. Nimi Thilak was approved
WA 1796/07 -: 4 :-
with effect from 29.12.1999. The appointment of the petitioners was
approved with effect from 29.12.1999, 31.12.1999 and 30.12.1999
retrospectively. The petitioners and Smt. Nimi Thilak did not pass the
NET within the period of two years stipulated in Ext.P2. They along
with Smt.Nimi Thilak submitted a representation dated 28.1.2002 to
the Vice Chancellor of the University requesting that they may be
exempted from passing the NET. In the said representation, they
referred to and relied on Ext.P7 order dated 19.8.2000 issued by the
University exempting three Lecturers in Computer Science appointed
on 1.6.1998 in Sree Ayyappa College, Eramallikara from passing the
NET and approving their appointment with effect from 1.6.1998. They
also brought to the notice of the Vice Chancellor of the University that
the Mahatma Gandhi University has by Ext.P8 order dated 14.3.2001
exempted Lecturers in Computer Science appointed during the period
1997-99 from passing the NET. The request of the petitioners and
Smt.Nimi Thilak was forwarded by the Principal, Sree Narayana
College, Cherthala to the Registrar of the University who in turn
forwarded it to the University Grants Commission along with his letter
dated 4.6.2002. The University Grants Commission in Ext.P13 letter
dated 4.9.2002 called for certain clarifications. The Registrar of the
University thereupon sent a letter dated 20.11.2002 furnishing the
WA 1796/07 -: 5 :-
details sought in Ext.P13. This was followed by yet another letter
dated 26.7.2003 addressed to the Secretary, University Grants
Commission wherein the University Grants Commission was requested
to consider the request earlier made. A set of documents sent along
with the letter dated 20.11.2002 was once again forwarded. The
University Grants Commission thereupon sent Ext.P14 letter dated
2.9.2004 to the University stating that the minimum qualification
prescribed by the University for the post of Lecturer in Computer
Science is not as per the regulations of the University Grants
Commission, which stipulated a pass in the NET as one of the
qualifications. It was also stated that the University Grants
Commission Regulations are mandatory and every University is bound
to follow them and that the matter needs clarification.
5. Aggrieved by the delay in the disposal of their representation
seeking exemption, the petitioners filed W.P.(C) No.7675 of 2004. By
Ext.P15 judgment delivered on 4.3.2004, this Court disposed of the
said Writ Petition, recording the submission made by the Central
Government Standing Counsel appearing on behalf of the University
Grants Commission that a decision will be taken in the matter within
three months from the date of receipt of a copy of the judgment. The
University Grants Commission thereafter sent Ext.P16 letter (wrongly
WA 1796/07 -: 6 :-
addressed to the Registrar, University of Calicut) stating that at its
meeting held on 24.12.2004 exemption has been granted to the
petitioners and Smt.Nimi Thilak from passing the NET, subject to the
condition that they should clear the NET in the relevant subject within
two years from the date of the communication, failing which they will
not be eligible for any exemption thereafter. The petitioners thereupon
filed W.P.(C)No.6157 of 2005 challenging Ext.P16 and seeking the
following reliefs:
“(a) issue a writ of certiorari or other appropriate
writ, order of direction calling for the records leading to
Ext.P16 and quashing the same to the extent it
incorporates the condition that the petitioners should be
acquired NET within two years from the date of
communication of Ext.P16.
(b) issue a writ of mandamus or other appropriate
writ, order or direction declaring that in accordance with
Ext.P12 regulations the petitioners are entitled to be
exempted from NET without any condition since there
was no candidates possessing NET at the time of
appointment of the petitioners as Lecturers in Computer
Science in S.N. College, Cherthala.
(c) issue a writ of mandamus or other appropriate
writ, order or direction declaring that Ext.P16 order to the
extent it incorporates the condition that the petitioners
should acquire NET within two years from the date of
communication of the order is ultravires and void.
WA 1796/07 -: 7 :-
(d) issue a writ of mandamus or other appropriate
writ, order or direction directing the 2nd respondent to
approve the appointment of the petitioners as Lecturer in
Computer Science treating them as exempted from
possessing NET ignoring the condition incorporated in
Ext.P16 that the petitioners should acquire NET within
two years from the date of communication of Ext.P16
order.”
6. The petitioners challenged the conditional grant of exemption
on the ground that it is arbitrary and discriminatory. They pointed out
that by Exts.P3 to P6 and Exts.P9 to P11, the University Grants
Commission has exempted Lecturers appointed in various colleges
affiliated to the University of Calicut from passing the NET without
prescribing any time limit, while in the case of the petitioners, the
University Grants Commission has granted exemption, limiting it for a
period of two years from the date of Ext.P16 communication. The
petitioners also relied on Ext.P7 order dated 19.8.2000 issued by the
University according approval for the appointment of three Lecturers in
Computer Science in Sree Ayyappa College, Eramallikara without
insisting on passing the NET. Reliance was also placed on Ext.P8 order
dated 14.3.2001 issued by the Mahatma Gandhi University exempting
Lecturers in Computer Science appointed during the period 1997-1999
from passing the NET. The petitioners also challenged Ext.P16 on the
WA 1796/07 -: 8 :-
ground that it is not in tune with the regulations governing the field.
It was contended that the provision in the regulations enabling the
University Grants Commission to grant exemption does not
contemplate the prescription of any condition. Though under the
regulations, exemption can be limited to a specified period in respect
of the University for which it is granted, it cannot be interpreted as an
exemption in respect of the candidates and limited in duration of time
rendering the appointee liable to be thrown out after the said period, it
was contended. The petitioners contended that when the University
Grants Commission grants exemption to a University for a specified
period, candidates who have not passed the NET can be appointed in
colleges affiliated to that University during the period specified in the
order of exemption and that the said appointments would be perfectly
in order and cannot be revoked on the ground that the candidates who
were appointed have not passed the NET within the period of
exemption. In other words, the contention of the petitioners was that
during the period of exemption, a candidate who has not passed the
NET, but is otherwise eligible can be validly appointed and that his
appointment is liable to be approved unconditionally if it is made
during the said period of exemption. It was also contended that
candidates appointed during the period of exemption cannot be
WA 1796/07 -: 9 :-
compelled to pass the NET during the period the exemption is in force.
7. The University Grants Commission resisted the Writ Petition
contending inter alia that exemption from passing the NET is granted
where (a) no NET examination is held in the subject or (b)NET/SLET
qualified/exempted candidates were not available when the selection
was held. It was further contended that the University Grants
Commission had at its meeting held on 13.8.2004 laid down the
general criteria to be followed by the Exemption Committee while
granting exemption and that individual cases were considered based
on the said criteria. It was further contended that it was in the light of
the norms thus evolved by the University Grants Commission on
13.8.2004 (Ext.R3) that Ext.P16 order of exemption was passed and
that it is open to the University Grants Commission to limit the period
of exemption and to insist that those who are granted exemption
should pass the NET during the period of exemption.
8. By the judgment under challenge, the learned Single Judge
held that the stipulation in Ext.P16 that the petitioners should pass the
NET during the period of exemption is not in tune with Ext.P12
regulations and is therefore arbitrary. The University Grants
Commission has in this appeal canvassed the correctness of the said
decision.
WA 1796/07 -: 10 :-
9. We have heard Sri.S.Krishnamoorthy, the learned counsel
appearing for the appellant, Sri.K.R.B.Kaimal, the learned Senior
Counsel appearing for respondents 1 to 3, Sri.M.Ragagopalan Nair, the
learned Standing Counsel appearing for the fourth respondent
University and Sri.A.N.Rajan Babu, the learned counsel appearing for
the fifth respondent – Manager. The learned counsel appearing on
either side reiterated the contentions advanced before the learned
Single Judge, set out in detail in paragraphs 6 and 7 above.
10. It is clear from the University order dated 21.12.1996 which
we have quoted above that candidates who seek appointment as
Lecturer in Computer Science should have passed M.Sc. degree in
Computer Science or MCA degree in Computer Science and NET/SLET
in the relevant subject. The qualification prescribed by the University
for the post of Lecturer in Computer Science is in tune with the
regulations issued by the University Grants Commission. Regulation 2
of the University Grants Commission (Minimum Qualifications required
for the Appointment and Career Advancement of Teachers in
Universities and Institutions affiliated to it) Regulations, 2000,
hereinafter referred to as the “Regulations” for short, reads thus:
“2. Qualification: No person shall be appointed to a
teaching post in University or in any of institutions
including constituent or affiliated colleges recognised
WA 1796/07 -: 11 :-
under clause (f) of section 2 of the University Grants
Commission Act, 1956 or in an institution deemed to be a
University under section 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 specified
period. No individual applications would be entertained:)
Provided further that these regulations shall not be
applicable to such cases where selections of the
candidates having had the then requisite minimum
qualification as were existing at the time through duly
constituted Selection Committees for making
appointments to the teaching posts have been made prior
to the enforcement of these regulations.” (Emphasis
supplied).
In the Annexure to the Regulations, the qualifications prescribed for
appointment to the post of Lecturer are as follows:
“1.3.3 Lecturer
Good academic record with at least 55% of the
WA 1796/07 -: 12 :-
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, in the relevant subject from an Indian University,
or, an equivalent degree from a foreign University.
Besides fulfilling the above qualifications, candidates
shoulid have cleared the eligibility test (NET) for Lecturers
conducted by UGC, CSIR or similar test accredited by the
UGC.”
(Note omitted as it is not relevant in the case on hand)
11. In our opinion, the real question that arises is, what is the
scope of the relaxation contemplated under the first proviso to
Regulation 2 extracted above and whether Ext.P16 is in tune with the
said proviso. Regulation 2 stipulates that no person shall be appointed
to a post in a University or in any of its affiliated colleges unless he/she
possesses the qualifications prescribed in the Annexure to the
Regulations. A pass in the NET in the subject concerned is one among
the prescribed qualifications. However, the first proviso to Regulation
2 empowers the University Grants Commission to grant relaxation
from the prescribed qualifications, if NET is not being conducted in a
subject or enough number of candidates with a pass in the NET were
not available. The relaxation contemplated is in respect of the
University concerned for that particular subject, for the period
specified in the order granting relaxation. The first proviso to
WA 1796/07 -: 13 :-
Regulation 2 also makes it clear that no individual application for
relaxation of the prescribed qualifications will be entertained. In the
instant case, the selection and appointment of the petitioners is not
under challenge. There is no pleading or proof to the effect that the
petitioners were selected overlooking qualified hands with a pass in the
NET. It is evident from Ext.P16 that the University Grants Commission
has chosen to exempt the petitioners from passing the NET for the
reason that no NET qualified hand was available at the time when they
were interviewed for selection to the post of Lecturer in Computer
Science. On the terms of the first proviso to Regulation 2 quoted
above, non-availability of qualified hands with a pass in the NET is one
ground for granting exemption. Therefore, in the case on hand, the
petitioners have been rightly found eligible for the grant of exemption.
Then the only question is whether the stipulation in Ext.P16 that the
petitioners have to pass the NET within the period of exemption is
sustainable in the light of the first proviso to Regulation 2 extracted
above.
12. While Sri.S.Krishnamoorthy, the learned counsel for the
appellant would contend that it is open to the University Grants
Commission to insist that those who are granted exemption should
pass the NET during the period of exemption, Sri.K.R.B. Kaimal, the
WA 1796/07 -: 14 :-
learned senior counsel appearing for respondents 1 to 3 would contend
that on the terms of the first proviso to Regulation 2, the University
Grants Commission cannot impose such a condition. It was contended
that the University Grants Commission has no common standard or
yardstick and that in Exts.P3 to P6 and Ext.P9 to P11 it had adopted
different approach when exemption from passing the NET was granted
in the years 2002 and 2003 in respect of teachers appointed in
colleges affiliated to the University of Calicut in the subject, Computer
Science. We have given our anxious consideration to the submissions
made at Bar by the learned counsel appearing on either side.
In our opinion, the relaxation contemplated under the first proviso
to Regulation 2 is not an exemption granted to the candidates
who have been chosen by the affiliated colleges or the University to
which they are affiliated, from passing the NET in the concerned
subject. The relaxation is for the University which has sought
relaxation. Such relaxation can be granted only if the NET is not being
conducted in a particular subject or if enough number of candidates
with a pass in the NET were not available at the time of selection. The
first proviso to Regulation 2 does not contemplate a situation where
the candidate appointed during the period when the relaxation is in
force, either in the University itself or in any of its affiliated colleges,
WA 1796/07 -: 15 :-
would have to pass the NET or face retrenchment if he or she does not
pass the NET during the period the relaxation is in force. The
contention of the University Grants Commission that Ext.R3 (which is
the same as Annexure A3 produced along with the Writ Appeal)
empowers it to prescribe such a condition is in our opinion, plainly
untenable and is not contemplated by the Regulations. Annexure A3
proceeds on the erroneous assumption that individual requests for
grant of exemption from passing the NET can be entertained. This is
clearly prohibited by the first proviso to Regulation 2. The first proviso
to Regulation 2 does not contemplate the grant of an exemption. It
contemplates only a relaxation in the prescribed qualifications. That
relaxation if granted is for the University concerned for the period
specified in the order granting relaxation. If during the period the
relaxation is in force, a teacher is appointed either in the University in
respect of which relaxation is granted or in any of its affiliated or
constituent colleges, it would enable the University/constituent
colleges/affiliated colleges to appoint a candidate who has not passed
the NET in the concerned subject during the period the relaxation is in
force. The relaxation contemplated in the first proviso to Regulation 2
is not a relaxation from possessing the basic educational qualifications,
but only from passing the NET. The first proviso to Regulation 2 does
WA 1796/07 -: 16 :-
not contemplate an order of exemption in respect of a particular
candidate for a specified period and does not empower the University
Grants Commission or any of its committees to impose a condition
similar to the one stipulated in Ext.R3 that the candidate should pass
the NET during the period of exemption. Regulation 2 does not
stipulate that the University Grants Commission may subject to such
conditions as it may deem fit to impose, grant relaxation from passing
the NET. As the grounds on which relaxation can be granted are set
out in the first proviso to Regulation 2 itself, the Exemption
Committee and the University Grants Commission are not competent
to impose conditions for the grant of relaxation. Though the norms
evolved by the Exemption Committee as set out in paragraph 2 of
Ext.R3 are in tune with the first proviso to Regulation 2, the conditions
stipulated in paragraphs 1 and 3 thereof run counter to the first
proviso to Regulation 2. We therefore hold that an order of relaxation
issued by the University Grants Commission in exercise of the power
conferred on it under the first proviso to Regulation 2 to a particular
University would enable the said University or its constituent or
affiliated colleges to appoint candidates who have not passed the NET
in the concerned subject during the period when the relaxation is in
force and that persons appointed during the period when the
WA 1796/07 -: 17 :-
relaxation is in force, are not required to pass the NET during the said
period or thereafter and are not liable to be retrenched, if they do not
pass the NET on the cessation of the period of relaxation. It is evident
from Ext.P16 itself that no candidate with a pass in the NET/SLET was
available when the petitioners were interviewed, selected and
appointed as Lecturers in Computer in Science in Sree Narayana
College, Cherthala. Their eligibility for the grant of exemption is also
not in dispute. Further, they were appointed in the year 1999 and
more than 8 years have passed thereafter. In these circumstances,
we are not inclined to remit the matter to the University Grants
Commission for a denovo consideration.
13. As noticed by us earlier, under the first proviso to Regulation
2 of the Regulations, relaxation from passing the NET can be granted if
NET is not conducted in the concerned subject or if no candidate
having a pass in the NET was available when the selection was made.
The relaxation can be granted, if either of the two conditions exist.
Therefore even if during the relevant time, the NET was being held in
Computer Science, relaxation can be granted if no candidate
possessing the said qualification participated in the selection process.
In the case on hand, a stalemate has arisen due to the wrong exercise
of power of relaxation by the University Grants Commission without
WA 1796/07 -: 18 :-
properly understanding the scope of the power to grant relaxation.
Further, it is evident from Exts.P3 to P6 and P9 to P11 that the
University Grants Commission has granted exemption to a number of
teachers appointed in the colleges affiliated to the University of Calicut
from passing the NET without the stipulation that they shall pass the
NET within the specified period. Exts.P3, P4, P5 and P6 relate to
Lecturers in Computer Science appointed in colleges affiliated to the
University of Calicut. In those cases, no such condition as in Ext.P16
has been imposed. It is evident that while issuing Ext.P16, the
University Grants Commission has not taken note of the real purport of
the first proviso to Regulation 2.
14. In Principal, King George’s Medical College v. Dr.Vishan
Kumar Agarwal and another – (1984) 1 S.C.C. 416 the Apex Court
held that as the University has granted relaxation to two other
candidates for admission to the M.D. course, it would be unfair to treat
the respondent differently though he was similarly situated. In the
instant case, both the University Grants Commission and the University
have adopted a different yardstick in the case of the petitioners. The
University Grants Commission has treated the petitioners differently
from the Lecturers named in Exts.P3 and P6 in the matter of grant of
exemption from passing the NET. Exts.P3 to P6 relate to Lecturers in
WA 1796/07 -: 19 :-
Computer Science, appointed in the Colleges affiliated to the University
of Calicut. In those cases, the University Grants Commission did not
impose a condition similar to the one in Ext.P16 that they should clear
the NET during the period of exemption. Exts.P3 to P6 are in tune with
the interpretation which we have placed on the first proviso to
Regulation 2 of the Regulations. Likewise, the University has by Ext.P7
exempted three Lecturers in Computer Science appointed on 1.6.1998
in one of its affiliated Colleges (Sree Ayyappa College) from passing
the NET and approved their appointment with effect from 1.6.1998.
The University also has adopted a different yardstick in the case of the
petitioners. Therefore, it is crystal clear that though the petitioners
were found to be eligible for grant of relaxation in terms of the first
proviso to Regulation 2, the University Grants Commission and the
University have treated them differently by imposing a condition that
is not prescribed in the Regulations. The condition stipulated in Ext.P16
that the petitioners shall pass the NET during the period of exemption
is ultravires the Regulations. The said stipulation is therefore liable to
be declared invalid and unenforceable.
15. In the instant case, the appellants were appointed in
December, 1999 after a widely published selection process. They have
been discharging their duties for the past more than 8 years and have
WA 1796/07 -: 20 :-
gained experience as Lecturers in Computer Science. It would not
therefore be proper to send them out of service at this distance of
time. In Ajet Kumar and others v. K.V.Sunil Kumar and another
– ILR 1993(2) Kerala 765, a Division Bench of this Court following the
decision of the Apex Court in Munindra Kumar v. Rajiv Govil – A.I.R.
1991 S.C. 1607 held that though the selection of the appellants is
liable to be set aside, as they were working in the post for a long
number of years, the selection should not be disturbed. It was held
that their selection should not be annulled in the absence of plea or
proof of any malafides, after a long number of years.
16. For the reasons stated above, we hold that the exemption
granted to the petitioners by Ext.P16, from passing the NET in
Computer Science shall be treated as an order of relaxation issued
under the first proviso to Regulation 2 in respect of the University of
Kerala for appointment to the post of Lecturer in Computer Science
during the year 1999-2000 when the petitioners were selected and
appointed. We also declare that the stipulation in Ext.P16 that the
petitioners should pass the NET within two years from the date of
Ext.P16 is ultravires the Regulations and is unenforceable. We
accordingly direct the University of Kerala to approve the appointment
of the writ petitioners as Lecturers in Computer Science without
WA 1796/07 -: 21 :-
insisting on a pass in the NET, with effect from the dates mentioned in
Ext.P2. The writ petitioners would also be entitled to all consequential
benefits.
The Writ Appeal is disposed of as above. No costs.
J.B.Koshy,
Judge.
P.N.Ravindran,
Judge.
ess 27/6