Partly allowed

State of Kerala v. Anitha Thomas R.

Kerala HC14 Jun 2016WP(C)/636/2011

Case brief

AI extract

What is this about?

The Court examined whether a University Syndicate could grant exemptions from UGC-mandated qualifications (like NET) for re-appointed teachers and reckoning short-term service for promotion. The Court held that Universities lack the authority to dilute UGC regulations and issued directions declaring the university's relaxation orders without authority.

What did the court decide?

Approval for promotion/placement of the 1st respondent as Lecturer Senior Scale not disturbed; University's orders granting exemption from NET and reckoning short service declared without authority; G

State of Kerala Vs Anitha Thomas R. — Pension and Retirement Benefits | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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TUESDAY, THE 14TH DAY OF JUNE 2016/24TH JYAISHTA, 1938

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WP(C).No. 636 of 2011 (D)

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PETITIONER(S):

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1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM.

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3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOTTAYAM.

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BY GOVERNMENT PLEADER SRI. MANZOOR ALI

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RESPONDENT(S):

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1. ANITHA THOMAS, W/O.T.J.DANIAL, LECTURER SENIOR SCALE,

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DEPARTMENT OF MATHEMATICS, BISHOP ABRAHAM MEMORIAL COLLEGE, THRUTHIKKAD-689 597.

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2. THE MANAGER, BISHOP ABRAHAM MEMORIAL COLLEGE, THRUTHIKKAD-689 597.

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3. THE PRINCIPAL, BISHOP ABRAHAM MEMORIAL COLLEGE, THRUTHIKKAD-689 597.

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4. M.G.UNIVERSITY, REPRESENTED BY ITS REGISTRAR, KOTTAYAM. PIN-686 560

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2/-

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-2-

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WP(C).NO.636/2011

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5. THE UNIVERSITY GRANTS COMMISSION, REPRESENTED BY ITS SECRETARY BAHADURSHA,

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ZAFAR MARG, NEW DELHI-110 002.

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R1 BY SRI.K.K.CHANDRAN PILLAI,SENIOR ADVOCATE ADVS. SRI.A.S.SAJUSH PAUL SRI.THOMAS JAMES MUNDACKAL SRI.BOBBY THOMAS R4 BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY R5 BY ADV. SRI.S.KRISHNAMOORTHY, CGC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/05/2016, THE COURT ON 14-06-2016 DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.636/2011

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE APPOINTMENT ORDER DATED 02/12/1998 P2 COPY OF THE APPROVAL ORDER DATED 15/11/2000 P3 COPY OF THE LETTER NO.23139/D1/99/H.EDN DATED 20/03/2001 P4 COPY OF THE M.PHIL DEGREE CERTIFICATE P5 COPY OF THE PROVISIONAL ORDER OF APPROVAL DATED 30/06/2005 P6 COPY OF THE GOVERNMENT ORDER DATED 21/12/1999. P7 COPY OF THE G.O(RT) NO.1725/94/H.EDN DATED 16/11/94. P8 COPY OF THE LETTER NO.AC.B.V.(4) 356/05 DATED 14/02/2006 P9 COPY OF THE JUDGMENT IN WP(C).NO.26646/06

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P10 COPY OF THE JUDGMENT IN W.A.NO.2649/09 DATED 24/11/2009

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RESPONDENT'S EXHIBITS:

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R1(A) COPY OF THE WRIT PETITION NO.26646/06 WITH EXHIBITS R1(B) COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3R RESPONDENT IN WP(C). NO.26646/06

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R1(C) COPY OF THE REPLY AFFIDAVIT FILED BY THE PETITIONER IN WP(C). NO.26646/06

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R4(A) COPY OF THE ORDER NO.AC.B.V-1-798/05 DATED 19/12/2005 R5(A) COPY OF THE LETTER NO.1-1/2002(PS) PT. FILE.III DATED 27/08/2009 R5(B) COPY OF THE LETTER NO.8/7-2010-UI(A) DATED 3/11/2010

/TRUE COPY/

P.S.TO JUDGE

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“C.R”

P.V.ASHA, J.

W.P(C) No.636 of 2011-D

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Dated this the 14^th day of June, 2016

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JUDGMENT

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The Government of Kerala has filed this Writ Petition challenging Ext.P5 order passed by the Mahatma Gandhi University by which the Syndicate Sub Committee on affiliation resolved to approve the promotion of the 1^st respondent as Lecturer Senior Scale w.e.f 2.5.2003 fixing her pay in the scale of Rs.10000-325-15200, under the provisions of the UGC scheme. The petitioners seek for a declaration that the University has no authority to grant relaxation/exemption to the qualification prescribed by the University Grants Commission (`UGC' for short) and that appointments/promotions/placements given by the management in the UGC scale to those who do not have the qualification prescribed by the UGC and the approval of such appointments by the University are not binding on the Government or the departmental authorities. The petitioners also challenge the letter of the University-Ext.P7 as well as the decision of the Syndicate Sub-committee held on 25.8.2004,

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which is referred to in Ext.P7.

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The 1^st respondent was initially appointed as Lecturer in Mathematics in Bishop Abraham Memorial College, Thruthikkad, (BAM College) which is an aided college and she worked there for the period from 27.8.1990 to 26.3.1991. She was thereafter re-appointed as Lecturer in Mathematics in the State scale of Rs.2060-3025, as per Ext.P1 with effect from 2.12.1998, against a vacancy which arose on account of increase in work load. That appointment was approved by the University w.e.f 2.12.1998 as per Ext.P2 order dated 15.11.2000. Thereafter, on the basis of request from the 1^st respondent and after being convinced of the sufficiency of workload, Government accorded concurrence for creation of one post of Lecturer in Mathematics, as per Ext.P3 letter dated 20.03.2001. The 1^st respondent had acquired M.Phil degree in December, 1994. Reckoning her M.Phil Degree, the 2^nd respondent Manager placed her in Senior Scale on completion of 5 years of service. Immediately on such placement by the Manager w.e.f 2.5.2003, the same was forwarded for approval to the University and the University approved her placement w.e.f 2.5.2003 as per Ext.P5 order. For the purpose of granting her placement, the Manager

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had taken into account her temporary service also, rendered for the period from 27.8.1990 to 26.3.1991, towards these 5 years.

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The contention of the Government was that UGC

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scheme was introduced and implemented in the case of Teachers of Colleges with effect from 1.1.1986, as per Government order dated 13.3.1990. A pass in National Eligibility Test (`NET' for short) along with other academic qualifications are compulsory for appointment as teachers in colleges, after 13.3.1990, the date from which the UGC Scheme was introduced in the State. The 1^st respondent, though was appointed initially for the period from 27.8.1990 to 26.3.1991, has not passed NET. Therefore, it is the case of the petitioners/Government that the 1^st respondent is not qualified for appointment as Lecturer or for placement in the Senior Scale. According to the petitioners, the University does not have any power to dilute the qualifications fixed by the UGC. Similarly temporary service rendered for a period not less than one year is not liable to be reckoned for placement in Senior Scale under the UGC Scheme. The petitioners therefore submit that, grant of Senior Scale reckoning the unqualified service rendered by the 1^st respondent is contrary to law and violative of the provisions contained in the regulations of the UGC. Seeing

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these irregularities, the educational authorities approached the University pointing out that the approval granted for the placement/promotion of the 1^st respondent as Lecturer Senior Scale as as well as the reckoning of the temporary service rendered by her, with a duration of only less than one year, for her placement/promotion as Senior Scale are illegal and in violation of the provisions contained in the UGC Scheme.

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The Government had issued Ext.P6 order-G.O(P) No.171/99/H.Edn dated 21.12.1999 implementing the revised UGC scheme for revision of pay scale and career advancement of teachers in Universities, affiliated colleges, etc. with effect from 1.1.1996. As per clause 6.3 therein, it was provided that the minimum requirement of a good academic record, 55% of the marks at the master's level and qualifying in the NET or any accredited test, shall remain for appointment of Lecturers. As per the provisions contained therein, temporary service rendered for a period less than one year is not liable to be reckoned for granting Senior scale or selection grade. Pass in NET was insisted for appointment of college teachers as per UGC (Qualifications Required of a Person to be Appointed to the Teaching Staff of a University and Institutions Affiliated to it)

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Regulations, 1991 ('91 Regulations for short) notified on 19.09.1991. Ext.P6 Scheme was introduced in tune with 1998 UGC Scheme which provides for placement of teachers under prescribing the conditions for the same. Similarly, the Government had, by Ext.P7 order - G.O(Rt) No.1725/94/H.Edn dated 16.11.1994, ordered that teachers who were appointed or re-appointed after 13.3.1990 but before 14.5.1992, would be exempted from passing the NET and the academic qualifications prescribed by the UGC. Relying on Ext.P7 order dated 16.11.1994, it is the case of the Government that exemption from NET is available only to those appointments/re-appointments made between 13.3.1990 and 14.5.1992. Despite all these Government Orders and provisions contained in the UGC Scheme Ext.P6, the syndicate sub committee of the M.G University resolved that teachers who were appointed till 14.5.1992 and re-appointed thereafter would be exempted from the NET and other academic qualifications. The Registrar of the University, in Ext.P8 letter dated 14.2.2006 to the Deputy Director, justified the approval saying that as per Government order Ext.P7, exemption from NET is available to appointments/re-appointments upto 14.5.1992; the 1991

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regulations provide that the regulations are not applicable to appointments made on the basis of selection made by a duly constituted selection committee. It is further stated that, the Syndicate Sub Committee in the meeting convened on 25.8.2004 vide item no.2398 resolved that teachers appointed till 14.5.1992 and re-appointed thereafter are exempted from NET and other academic qualifications, and accordingly it approved the senior scale promotion of the 1^st respondent and another. It is the case of the petitioners that this decision of the Syndicate Sub Committee taken in the meeting convened on 25.8.2004 is without authority and contrary to the Government Order issued on 16.11.1994 and the qualifications prescribed in the UGC Regulations.

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The 1^st respondent had approached this Court in W.P (c) No.26646 of 2006 when the benefits based on her promotion to Senior Scale were not granted despite the approval granted by the University. Relying on the judgments in Cherian Mathew v. Principal S.B.College, Changanasserry. [1998(2) KLT 144] and Shalini Rachel v. Manager, Christian College [2007(3) KLT 355], the 1^st respondent sought for orders for payment of salary.

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In the aforesaid decisions, this Court held that once the University, which is the competent authority, grants approval to an appointment of a teacher in an aided college, it was incumbent on the educational authorities to pay the salary attached to the post in which the teacher was appointed. It was held therein that, the only remedy available to the educational authorities was to refer the matter to the University in case the educational authorities have a case that approval was contrary to law. In the case of the 1^st respondent, this Court found that, her initial appointment as per order dated 27.08.1990 was approved by the University as per its proceedings dated 23.01.1991. Though the re-appointment was by order dated 2.12.1998, after the qualifications prescribed by the UGC were made applicable, both the appointments were approved by the University. Apart from that, her placement in Senior scale taking into account her M.Phil. Degree, was also approved w.e.f 2.5.2003. This Court found that she was entitled to payment of salary once the University approved her appointment. In that Writ Petition, the educational authorities had filed counter affidavits pointing out that, the 1^st respondent, who acquired M.Phil only in 1994 had to acquire NET, as she acquired M.Phil subsequent to 31^st

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December, 1993 only. The stand of the petitioners is that, for a valid re-appointment, the 1^st respondent ought to have acquired NET qualification.

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In these circumstances, the petitioners filed W.A No.2649 of 2009, against the judgment dated 30.09.2009 in W.P (c) No.26646 of 2006 by which payment of salary to the 1^st respondent was directed. By Ext.P10 judgment W.A No.2649 of 2009 was dismissed, again relying on the cases of Cherian Mathew and Shalini Rachel (supra). However while directing payment of salary, the Division Bench observed that, if the appellants find that the decision of the University was not correct, they have to work out the remedy against it and move the same in appropriate proceedings. Ext.P10 judgment was rendered on 24.11.2009. It was thereafter that, the Government filed this Writ Petition challenging the orders granting approval to the promotion of the 1^st respondent and seeking directions with respect to the authority of the University to take decisions contrary to the provisions prescribed by the UGC.

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The 1^st respondent has filed an elaborate counter affidavit and disputed the very maintainability of the Writ Petition, apart from the contentions with respect to the delay

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involved in the matter. It was also stated that, all the Lecturers except the 1^st respondent have received the benefits of Senior Scale and Selection Grade on the basis of the directions from this Court and it is for the first time that the Government comes up with a case that, the action of the University is unsustainable. It was also pointed out that, contentions of the petitioners were already considered by this Court in Exts.P9 and P10 judgments in the Writ Petition filed by her and the Writ Appeal filed by the petitioners and hence the petitioners cannot be heard to raise any contention as against the findings rendered therein, since the matter is already concluded.

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The UGC has filed a counter affidavit in which it is stated that the qualifications prescribed by it are mandatory for appointment to any teaching post in Colleges ever since the UGC regulations were issued in 1991. Explaining the establishment of UGC as well as its statutory duties to determine, maintain and improve the standard of teaching in Universities, it was stated that the Regulations are issued in exercise of its powers, which the Universities as well as the colleges affiliated to it have to follow. University or any other authority is incompetent to pass orders diluting the

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qualifications prescribed by the UGC. If at all the University wanted to grant any relaxation of qualifications, the University ought to have addressed the UGC, in which event, the UGC would have considered the same.

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The University has filed a counter affidavit stating that, it has not granted any exemption to the 1^st respondent from acquiring NET. The first appointment of the 1^st respondent was on 27.8.1990, when UGC Regulations of 1991 were not in force. As per the order of the Government itself, in the case of teachers who were appointed prior to 1991 Regulations and who were appointed by selection by a duly constituted selection committee, the regulations could not be made applicable and hence NET was not compulsory in the case of 1^st respondent. Regarding the broken service less than one year, it was stated that syndicate has resolved in its meeting held on 2.12.2005, that all broken spells of service prior to 1.1.1996 and approved by the Universities concerned and the Deputy Directors of Collegiate Education shall be reckoned as qualifying service for career advancement. On 25.8.2004, the syndicate sub committee resolved that all teachers appointed till 14.5.1992 and reappointed thereafter are exempted from NET and other

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academic qualifications. University further stated that, placement is granted in accordance with the UGC norms such as length of service and refresher course.

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I heard Sri. Manzoor Ali, the learned Government Pleader appearing for the petitioner, Sri. Chandran Pillai, the learned Senior Counsel appearing for the 1^st respondent, Sri. Krishnamoorthy, the learned Standing Counsel for the UGC and the learned Standing Counsel for the M.G University.

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On consideration of the contentions raised by either side, it is seen that the main issue raised in this case is regarding the authority of the University or the Syndicate to dilute the qualifications prescribed by the UGC for appointment as well as re-appointments of teachers and its authority to issue orders for reckoning qualifying service for placement in Senior Scale/career advancement contrary to the UGC scheme; the other issues are with respect to the qualification of the 1^st respondent where there are two objections- (i) requirement of pass in NET; (2) reckoning of temporary service for a period less than one year for placement in Senior Scale.

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Since the party affected is the 1^st respondent, I will deal with the objections as against her placement. As far as the

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pass in NET is concerned, it is further necessary to examine whether exemption from NET is available in the case of appointments after 13.3.1990 and whether that exemption will enure to those who happened to be reappointed even in 1998 after the UGC (Qualifications Required of a Person to be Appointed to the Teaching Staff of a University and Institutions Affiliated to it) Regulations, 1991 (91 Regulations) as well as Ext.P7 Government order were issued.

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The appointment of the 1^st respondent was made in the year 1998; it was approved and she was being paid salary. All these were done at a time when the 1991 Regulations as well as Ext.P7 order dated 16.11.1994, insisting NET for all appointments/re-appointments made after 14.5.1992, were in force. The petitioners did not have any objection against the same till her placement. According to the petitioners, her appointment was in State scale and the qualification was insisted only when the benefit of the Scheme was extended to her and she was placed in the senior scale. At any rate, objection is raised when the University approved her promotion as Senior Scale Lecturer on completion of 5 years service. But in the revised UGC Scheme Ext.P6, which came into force from

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1.1.1996, no provision is seen which insists that a Lecturer who was in State scale has to acquire qualification prescribed by the UGC or that they are not entitled to placement under the career advancement. On the other hand, as per para 3.4 of the Scheme, all the teachers are brought under the scheme. The scheme does not insist that the teachers who were in service should acquire additional qualification before they are placed in senior scale. In fact, it was the initial appointment of the 1^st respondent which should have been objected. The revised UGC Scheme Ext.P6 as well as the 1990 scheme only provide for placement in senior scale and selection scale, on completion of prescribed number of years of service. In these peculiar circumstances, she cannot be denied the benefit of placement.

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Moreover, as far as the 1^st respondent is concerned, she has acquired M.Phil. in 1994 though subsequent to the cut off date of 1993 and she has since been awarded Ph.D. She has been continuing as Lecturer since her appointment in 1998. The 1^st respondent has a case that the 1991 Regulations do not apply once the appointment is made by a selection committee in accordance with the provisions contained in the Statute as provided in the Regulations itself. In fact the regulations protect

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only those appointments made before 19.9.1991, the date on which the regulations came into force. No exemption was available for her re-appointment in 1998, after the 1991 Regulations came into force. As per Ext.P7 order, the qualifications prescribed by UGC including pass in NET was mandatory for any appointment including re-appointment made after 11.5.1992.

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Yet another objection is with reference to reckoning of her previous spell of service with less than one year duration as qualifying service for placement. Here also the syndicate took a decision that whichever service is approved by them would be treated as qualifying service for career advancement. The authority of the University to take decisions with respect to qualification and Career advancement are being dealt with separately. Therefore, I shall consider the entitlement of the petitioner for placement, without going into that question.

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In this context it is necessary to note that, the 1^st respondent has along with the counter affidavit produced several judgments of this Court, in W. P.(C) No. 17103 of 2003, W. P. © No. 21655 of 2004, in which directions were given to reckon broken spells of service as qualifying service for career

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advancement. In the light of those judgments, the placement of the 1^st respondent in Senior scale reckoning the temporary service of less than one year cannot be said to be illegal. She is entitled to get the placement as already granted and the benefits attached to the same also.

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But the eligibility or entitlement of the 1^st respondent will not validate the action of the University. It is the Syndicate of the University that took the decision that, pass in the NET and other academic qualifications need not be insisted in the case of teachers appointed before 14.5.1992, irrespective of the date of their re-appointment. As per the Government Order, in order to avail the benefit of exemption from the qualifications prescribed by the UGC, the appointments as well as re-appointments should be before 14.5.1992. At the same time, what the syndicate decided was to exempt all those who got initial appointment before 14.5.1992, irrespective of the date of earlier appointment or the applicability of the newly introduced qualification at the relevant time. On a reading of Ext.P7 Government Order issued on 18.5.1994, it is clear that pass in the NET is mandatory for all appointments as well as re-appointments made upto 14.05.1992 only. As per the counter affidavit filed by the UGC the pass in

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NET is compulsory for any appointment since the issuance of 1991 Regulations. The University also admits that the qualification is necessary after these regulations are issued. But according to the decision of the syndicate any teacher appointed before 14.5.1992 but re-appointed at any time does not require NET. Neither the counter affidavit nor the resolution or the letter Ext.P8 explains the authority for taking such a decision, but states that the University has not granted any exemption. Thus the University themselves admit that they do not have any authority to grant exemption from qualification. It is one thing to say that, appointments made prior to the coming into force of 1991 Regulations do not require the qualifications prescribed therein and it is entirely different to say that all the reappointments made after 14.5.1992 also do not require the qualifications, once the appointments were prior to 14.5.1992. There cannot be any exemption for the claim holders also, from these mandatory qualifications. Any claim holder can be reappointed only if he is having the qualification as on the date of re-appointment. Ext.P7 order does not protect the reappointments made subsequent to 14.05.1992 just because the initial appointment happened to be in the year 1990 or prior to

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that. It is pertinent to note that the standard of education in the institutions of higher education is a matter coming within the purview of the Central Government.

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Similar is the case with Ext.R4(a), which shows that the syndicate decided to treat any broken service as qualifying service for career advancement, provided it is approved. In the counter affidavit the University admits that, career advancement is in accordance with the UGC norms. The placements to senior scale and selection grade are all governed by the UGC Scheme which in turn is issued in terms of the Regulations of the UGC and the orders issued by Government of India and Government of Kerala. Counting of past service for the purpose of placement is separately provided in the scheme in para 7.1 to 7.7. The interference of University, which does not have any role in payment either on appointment or on placements by way of career advancement, is nowhere contemplated so that it can effect modifications to those conditions. It is by virtue of the UGC scheme, that the teachers became eligible for career advancement on completion of requisite period of service. The nature of such period of service is provided in that scheme and it is specific that temporary appointments with duration of less

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than one year would not be reckoned as qualifying service for placement under the career advancement introduced by the UGC. In terms of the UGC regulations, the State Government has adopted the same and implemented it without effecting any material alterations. But the syndicate of the University would interfere with that also and take decisions on any matter touching the teachers without seeking any clarification or concurrence or opinion of either the UGC or the State Government, which alone is making the payment. In effect the Syndicate effects modifications to the regulation of UGC and the orders of Government, assuming a superior role over both, without any authority. It is not the duty of the University to decide what should not be or what should be the nature of the qualifying service for career advancement. Therefore, the decision as seen from Ext.R5(a) of the Sub committee on Syndicate is without authority. In this context it is also necessary to have a look at the provisions which empower the UGC to issue regulations.

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The University Grants Commission (UGC) is established under the UGC Act, 1956, for the coordination and determination of standards in Universities. Section 26 of the

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UGC Act empowers the UGC to make regulations consistent with the Act and Rules, by notification in the Official Gazette, on various aspects. Clause (e) of Subsection 1 of Section 26 enables the UGC to notify regulations defining the qualifications that should ordinarily be required for any person to be appointed to the teaching staff of the University, having regard to the branch of education in which he is expected to give instruction while regulations under clause (g) can regulate the maintenance of standards and the coordination of work or facilities in Universities. The UGC (Qualifications Required of a Person to be Appointed to the Teaching Staff of a University and Institutions Affiliated to it) Regulations, 1991 (91 Regulations) made in exercise of the powers conferred by Section 26(1)(e) were notified on 19-9-1991. These regulations apply to a University established under a State Act as well as all institutions and affiliated colleges recognised by the UGC in consultation with the University concerned under clause (f) of Section 2 of the UGC Act. Therefore the 1991 regulations apply to the Mahatma Gandhi University. The UGC has issued the regulations prescribing the qualifications for appointment in the institutions of higher education in order to see that there is improvement in

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the standard and quality of education. NET was a qualification prescribed under the 1991 Regulations for appointment of Lecturer. It also provided that any relaxation from the prescribed qualification can be made by a University only with prior approval of the Commission. In this case, the University has not obtained any prior approval or at least post approval from the UGC. In this context the judgment of the Apex Court in University of Delhi v. Raj Singh [1994 Supp (3) SCC 516], is relevant, where a candidate who applied for the post of Lecturer in Colleges affiliated to the University of Delhi challenged the selection in those college without insisting the NET as prescribed by the Regulation of the UGC notified on 19.9.1991. The High Court held that the qualifications prescribed in the 1991 Regulations are valid and mandatory and the Delhi University was bound to make selection and appointment strictly in terms of those Regulations, and appoint candidates having the qualification prescribed therein. After an elaborate consideration of the powers and duties of the UGC as well as that of University and the circumstances under which a national level test was prescribed and the regulations were notified, the Apex Court held that the autonomy of the University was not entrenched by

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the regulations. While dismissing the appeal, observed as follows in para 24:

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“ 24. It is now appropriate to clarify the direction that the Delhi High Court issued in allowing the writ petition. It held that the notification dated 19-9-1991, by which the said Regulations were published, was valid and mandatory and the Delhi University was obliged under law to comply therewith. The Delhi University was directed to select lecturers for itself and its affiliated and subordinate colleges strictly in accordance with the notification. Put shortly, the Delhi University is mandated to comply with the said Regulations. As analysed above, therefore, the Delhi University may appoint as a lecturer in itself and its affiliated colleges one who has cleared the test prescribed by the said Regulations; or it may seek prior approval for the relaxation of this requirement in a specific case; or it may appoint as lecturer one who does not meet this requirement without having first obtained the UGC’s approval, in which event it would, if it failed to show cause for its failure to abide by the said Regulations to the satisfaction of the UGC, forfeit its grant from the UGC. If, however, it did show cause to the satisfaction of the UGC, it not only would not forfeit its grant but the appointment made without obtaining the UGC’s prior approval would stand regularised.”

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The UGC subsequently issued revised regulations in 2000, 2010, etc. As per clause 3.3.1 of 2010 Regulations the NET is made the minimum eligibility condition even for Ph.D and M.Phil holders, for appointment as Assistant Professors. Exemption is available only to those who are awarded Ph.D degree in accordance with the UGC (Minimum Standards and Procedure for Award of PhD Degree) Regulations, 2009. The constitutional validity of 2010 Regulations of the UGC was upheld in P. Suseela v. University Grants Commission

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[(2015) 8 SCC 129] . In para 18 it was held as follows: :

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“ It is clear that the object of the directions of the Central Government read with the UGC Regulations of 2009/2010 are to maintain excellence in standards of higher education. Keeping this object in mind, a minimum eligibility condition of passing the national eligibility test is laid down. True, there may have been exemptions laid down by UGC in the past, but the Central Government now as a matter of policy feels that any exemption would compromise the excellence of teaching standards in universities/colleges/institutions governed by the UGC. Obviously, there is nothing arbitrary or discriminatory in this — in fact it is a core function of UGC to see that such standards do not get diluted.”

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In Kalyani Mathivanan v. K.V. Jeyaraj [(2015) 6 SCC 363], the issue considered by the Apex Court was with respect to the qualifications prescribed in 2010 Regulations as against those in the University Statutes. There the appointment of Vice Chancellor was under challenge on the ground that she did not have the minimum eligibility criteria provided in the 2010 regulations. It was held therein in para 62.2 that, the UGC Regulations being passed by both the Houses of Parliament, a subordinate legislation has binding effect on the universities to which it applies. It was also held that to the extent the State legislation is in conflict with the Central legislation including subordinate legislation made by the Central legislation under Entry 25 of the Concurrent List, it shall be repugnant to the Central legislation and would be inoperative. However since the

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Government of Tamil Nadu had not adopted those regulations with respect to the appointment of Vice Chancellor, the Apex Court held that the Regulations were not applicable to the Universities in that State.

¶131

Recently a Full Bench of this Court, in Radhakrishnan Pillai v. T.D.B [2016 (2) KLT 245 (F.B); 200(2) KHC 119], while considering the applicability of UGC Regulation 2010 for promotion to the post of Principals, appointment as Professors, Lecturers etc. in a batch of cases, when Universities were yet to amend the Statutes and Ordinances discussing the law laid down in a number of cases, including Susheela 's case and Kalyani Mathivanan 's case (supra), this Court held as follows:

¶132

“17. Therefore, irrespective of whether the University Acts enacted under Entry 25 of list III or the Statutes framed thereunder are amended in line with the UGC Regulations or not, in view of its adoption by the State of Kerala with effect from 18/09/2010 as per Government Order dated 10/12/2010, the Universities and affiliated colleges in Kerala State are bound to comply with the UGC Regulations, 2010. Viewed in that manner, the natural consequence is that the principles laid down by this Court in Raveendran's case cannot be sustained and is overruled.”

¶133

This Court was considering those cases in the light of 2010 Regulations. In the present case the University does not have a contention that the UGC Regulations need not be followed. However from the resolutions of 2004 and 2005, as evident from Ext.P8 and Ext R4(a), it is clear that they just

¶134

¶135

W.P(C) No.636 of 2011-D

¶136

ignore the UGC Regulations as well as UGC scheme and grant exemption from NET to teachers re-appointed on any day subsequent to 14.5.1992 and provide for counting any spell of service as qualifying service for career advancement. In the light of the aforementioned judgments and the 1991 Regulations and the revised UGC scheme, prescribing qualifications, which the Government of Kerala accepted, the Universities cannot be said to have any authority to dilute the same so as to grant exemption from pass in NET or to decide the nature of qualifying service for placement/promotion under career advancement or in effecting any modifications over the standards prescribed in the UGC Regulations a well as the UGC scheme. In the event the University required any relaxation it was open to the University to approach the UGC, as stated in the counter affidavit and as held in the judgment of the Apex court in Delhi University v Raj Singh (supra). Therefore, the University exceeded its jurisdiction in prescribing qualifications and conditions of service, lower to those prescribed in the UGC Regulations as well as the UGC scheme.

¶137

University cannot transgress its limits and enter into the fields occupied by the UGC as well as the Government and

¶138

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W.P(C) No.636 of 2011-D

¶140

take decisions on whatever matter concerning teachers. May be they can insist qualifications higher to those prescribed by UGC, but cannot dilute. The action of the University in taking decisions contrary to what is provided by the UGC cannot be accepted. Any decision of the University diluting the provisions prescribing qualifications in respect of appointments/re-appointments can only be consistent with the regulations of the UGC. The colleges coming under the Universities are bound by the Regulations issued by the UGC.

¶141

In the light of the judgment of the Apex Court in P.Suseela' s case and the Full Bench judgment of this Court, there cannot be any dispute over the authority of the UGC to prescribe the qualifications and the liability of the Universities as well as the affiliated colleges under it and the educational agencies to follow the regulations prescribing the qualifications. The Universities in Kerala are also bound by the regulations of the UGC as well as the orders issued by the Government in terms of the provisions contained in the regulations and the UGC scheme. The Universities should strictly adhere to the conditions prescribed by UGC.

¶142

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W.P(C) No.636 of 2011-D

¶144

In the above circumstances, the Writ Petition is partly allowed issuing the following directions:

¶145

(i) the approval granted for promotion/placement of 1^st respondent as Lecturer Senior Scale shall not be disturbed;

¶146

(ii) the orders Ext.P8 and Ext.R4(a) issued by the Mahatma Gandhi University and the decision of the Sub committee on Syndicate referred to therein are without authority;

¶147

(iii) it is declared that the University/the Syndicate or its sub committee or any of the bodies under it does not have any authority to dilute the qualifications prescribed in the UGC Regulations as well as the UGC scheme and the Government orders issued in tune with the UGC Regulations in respect of appointment as well as the placement/promotion under career advancement of College teachers as done in Ext.P8 and Ext.R4(a) orders and to approve such appointments.

¶148

Sd/- (P.V.ASHA, JUDGE)

¶149

rtr/

State of Kerala v. Anitha Thomas R.

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State of Kerala v. Anitha Thomas R.

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