Dismissed

Rekha U Menon v. Vice-Chancellor,Kerala Veterinary Animal Science University

Kerala HC19 Dec 2018WP(C)/12622/2015

Case brief

AI extract

What is this about?

The petitioner, a contract employee with an MBA and NET qualification, challenged university statutes requiring a basic degree in Dairy Science/Technology for Assistant Professor posts. The Court dismissed the writ petition, holding that appointments under pre-statute notifications are not圆满บาร์られた by subsequent statutes, and courts should not interfere with academic qualifications prescribed by e

What did the court decide?

The writ petition praying for quashing of statutes and continuation of services is dismissed.

Rekha U Menon Vs Vice-Chancellor,Kerala Veterinary… — Service and Employment | Kerala HC (2018)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE SMT. JUSTICE P.V.ASHA

¶4

WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 28TH AGRAHAYANA, 1940

¶5

WP(C).No. 12622 of 2015-S

¶6

PETITIONER/S:

¶7

REKHA U MENON, AGED 36 YEARS W/O.PRAMOD.M,162,NEELAMBARI,7A STREET,HARINAGAR,PUNKUNNAM,THRISSUR-2.

¶8

BY ADV. SRI.GEORGE JOHNSON

¶9

RESPONDENT/S:

¶10

1 VICE-CHANCELLOR, KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY,POOKODE WAYANAD-670645.

¶11

2 THE REGISTRAR KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY,POOKODE,WAYANAD-670645.

¶12

3 THE PRINCIPAL COLLEGE OF DIARY SCIENCES AND TECHNOLOGY,MANNUTHY,THRISSUR DISTRICT-680301.

¶13

4 JAYADEVAN.G.R ASSISTANT PROFESSOR,DAIRY BUSINESS MANAGEMENT,COLLEGE OF DIARY SCIENCES AND TECHNOLOGY,MANNUTHY,THRISSUR DISTRICT-680301.

¶14

*** ADDL.R5 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPRUAM**

¶15

IS IMPLEADED AS ADDL.R5 AS PER ORDER DT.24.6.15 IN IA NO.8431/15

¶16

BY ADVS.

¶17

SRI.MILLU DANDAPANI,SC,K.V & A.S. UTY SMT.AYSHA YOUSEFF SC KERALA VETERINARY AND ANIMAL SCIENCES

¶18

OTHER PRESENT:

¶19

SRI.SUNIL KURIAKOSE,GOVT.PLEADER

¶20

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2018, THE COURT ON 19.12.18 DELIVERED THE FOLLOWING:

¶21

P.V.ASHA, J. CR

¶22

W.P.(C) No.12622 of 2015

¶23

Dated this the 19^th day of December, 2018

¶24

JUDGMENT

¶25

The petitioner who had been working on contract basis is challenging the first Statute relating to the qualification for the post of Assistant Professors in the faculty of Dairy Sciences and Technology, in the Kerala Veterinary and Animal Sciences University (`University' for short).

¶26

2. Petitioner had been working as Asst. Professor in the faculty of Dairy Sciences and Technology in the College of Dairy Sciences and Technology at Mannuthy, Her qualifications are B.Sc in Computer Science, Master's Degree in Business Administration, pass in National Eligibility Test etc. The University had as per notification dated 18.04.2013 invited applications for appointment to the post of Asst. Professors in Veterinary Science/Dairy Science and Technology on contract basis for a period of one academic year. Pursuant to the notification Ext.P1 the petitioner submitted application and after conducting an

¶27

W.P.(C) No.12622/15

¶28

:3:

¶29

interview, she was appointed as per Ext.P3 order dated 17.01.2014 in the post of Asst. Professor in Dairy Business Management in the faculty of Dairy Sciences and Technology. While so the University first Statutes

¶30

came into force on 20.05.2014 and thereafter the University issued Ext.P4 notification dated 12.6.2014 inviting applications for appointment to various disciplines. Petitioner submitted application for

¶31

appointment as Asst. Professor in Dairy Business Management and she submitted a representation

¶32

requesting to allow her to participate in the selection. The petitioner filed this writ petition thereafter complaining that she was not called for interview. The 4^th respondent was appointed on regular basis pursuant to Ext.P4 notification.

¶33

3. The contention of the petitioner is that

¶34

qualification prescribed for appointment as Asst. Professor in the faculty of Dairy Sciences and Technology is vague and unspecific and it was made with a malafide intention to give appointment to certain

¶35

persons and to exclude qualified hands. Petitioner

¶36

W.P.(C) No.12622/15

¶37

:4:

¶38

points out that in the faculty of Dairy Science and Technology there are various disciplines like Dairy Technology, Dairy Engineering, Dairy chemistry, Dairy Microbiology, Dairy Business Management, Dairy Husbandry and Dairy Extension. The qualification fixed in Statute 140(iv)(b) is basic degree in Dairy Science/Technology or related Engineering as essential qualification. It further provides that in disciplines like Biochemistry, Biotechnology, Bio-Statistics, Dairy Husbandry and Computer Application persons without basic Degree in Dairy Science and Technology or related Engineering can be considered only in the absence of B.Tech., Dairy Science Degree holders and that basic Degree in Dairy Science and Technology shall not be insisted for the teachers who are serving in various Departments of the faculty of Dairy Science as on 31.03.2011. The petitioner points out that there are no disciplines for Biochemistry, Biotechnology or Biostatistics and therefore the Statute is ambiguous and therefore it is liable to be struck off as violative of UGC Regulations. According to the

¶39

W.P.(C) No.12622/15

¶40

:5:

¶41

petitioner the discipline of Dairy Business Management is a management subject and there is no basis for prescribing a basic degree in Dairy Science and Technology. Petitioner has pointed out the syllabus to be taught for the discipline Dairy Business Management asserting that the basic degree required in the statute is totally irrelevant. Petitioner has also pointed out the hardship that would be faced by her in the event of her replacement by a candidate appointed pursuant to Ext.P4 notification.

¶42

4. Respondents 1 and 2 have filed a counter affidavit. It is stated that petitioner's appointment was purely on contract basis made on the basis of notification issued before framing of the First Statute. 335 posts in various faculties were transferred from Kerala Agricultural University on the formation of the respondent University. Notification was issued for selection and appointment to the posts of Asst.Professors in various subjects by issuing Ext.P4 notification. In the meanwhile the University

¶43

had taken steps to fill up the vacancies on contract

¶44

W.P.(C) No.12622/15

¶45

:6:

¶46

basis and the petitioner was accordingly appointed for a period of one year and thereafter it was extended for a further period of 6 years or till the permanent hand is posted. It is stated that statute 140(iv)(a) provides for a contingency when persons without basic degree in Dairy Science and Technology are absent. However the University had in its 29^th board meeting held on 02.06.2014 decided to issue notification for appointments to various categories. Petitioner does not have the prescribed qualification for the post as she does not have a degree in Dairy Business Management and she is challenging the statute only because she is MBA holder with NET without basic qualification in Dairy Science and Technology. It is stated that statutes are framed keeping in view of the requirements for imparting education to the students. There is no basis for the contention that the prescription of qualification is to exclude qualified hands like petitioner. Pursuant to Ext.P4 notification persons with qualification prescribed under the Statute have

¶47

submitted applications and after conducting the

¶48

W.P.(C) No.12622/15

¶49

:7:

¶50

selection, appointments were made. There is only one sanctioned post. But petitioner does not have the requisite qualification.

¶51

5. Having heard the contentions on either side, it

¶52

is necessary to examine the relevant provisions contained in the Act and Statutes. The appointment of teachers in the University is governed by Chapter X of

¶53

the University Act. Section 57 reads as follows:

¶54

57.Appointment of teachers, officers and staff.

¶55

1. Subject to the provisions of this Act, Statutes and Ordinances, the members of the teaching staff of the University shall be appointed by the Board of management.

¶56

2. Except in cases otherwise provided for in this Act and Statutes, every salaried officer and teacher of the University shall be appointed under a written contract.

¶57

3. The contract shall be lodged with the Vice-Chancellor and a copy thereof shall be furnished to the officer or teacher concerned.

¶58

4. The contract shall not be inconsistent with the provisions of the Act and Statutes, Ordinances in relations to conditions of service.

¶59

5. The procedure for selection of officers, teachers and other employees of the University shall unless otherwise provided for in this Act be such as may be prescribed.

¶60

6. The normal retirement age of the Deans, Registrar, Directors, Professor, Associate Professor, Assistant Professor shall be sixty years.

¶61

7. The normal retirement age of officers of the University other than those specified in sub-section (6) shall be fifty six years.

¶62

Any dispute between any officer or teacher of the University and the University shall on the request of the University or the aggrieved person shall be referred to the Appellate Tribunal.

¶63

W.P.(C) No.12622/15

¶64

:8:

¶65

6. Chapter III of the Statute deals with teachers

¶66

of the University. The qualification for the post of Assistant Professors in the University is provided in Statute 140 of the First Statute, which reads as

¶67

follows:

¶68

APPOINTMENT BY DIRECT RECRUITMENT ASSISTANT PROFESSOR

¶69

140.Qualifications.— No person shall be qualified to be appointed as Assistant Professor unless he possesses the following qualifications, namely:

¶70

(i) Good academic record as defined by the concerned University with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Masters Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign University.

¶71

(a) A relaxation of 5% may be provided at the graduate and master’s level for the Scheduled Caste/Scheduled Tribe/Differently abled (Physically and Visually differently-abled) categories for the purpose of eligibility and for assessing good academic record during direct recruitment to teaching positions. The eligibility marks of 55% marks (or an equivalent grade in a point scale wherever grading system is followed) and the relaxation of 5% to the categories mentioned above are permissible, based on only the qualifying marks without including any grace mark procedures;

¶72

(b) A relaxation of 5% may be provided, from 55% to 50% of the marks, to the Ph.D. Degree holders, who have obtained their Master’s Degree prior to 19 September, 1991; and

¶73

ii) (a) the candidate must have cleared the National Eligibility Test (NETT) conducted by the UGC, CSIR or similar test accredited

¶74

by the UGC like SLET/SET; or (b) candidates, who are, or have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for award of Ph.D.

¶75

W.P.(C) No.12622/15

¶76

:9:

¶77

Degree) Regulations, 2009, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions; Note;—Subsequent amendments issued by the UGC shall be applicable in the University for appointment of Assistant Professors;

¶78

iii) NET/SLET/SET shall also not be required for such Masters Programmes in disciplines for which NET/SLET/SET is not conducted. No candidate shall be eligible for the post, if he/she attains the age of 40 years on the last date of application for the post. For candidates from SC/ST category, a relaxation of five years shall be given in the upper age limit; iv) (a) In the Faculty of Veterinary and Animal Sciences, for all the teachers, viz. Assistant Professor, basic Veterinary Degree recognized by the Veterinary Council of, India (VCI) and listed in the schedule of Indian Veterinary Council Act (Central Act 52 of 1984) is essential. ‘However, in disciplines like Biotechnology, Biostatistics persons without basic Veterinary Degree can be considered only in the absence of Bachelor of Veterinary Science and Animal Husbandry Degree holders. (b) In the faculty of Dairy Science and Technology, for all the teachers, viz.. Assistant Professor, basic Degree in Dairy Science/Technology or related Engineering is essential. However, in disciplines like Biochemistry, Biotechnology, Biostatistics, Dairy Husbandry and Computer Application, persons without basic Degree, in Dairy Science and Technology or related Engineering can be considered only in the absence of B.Tech., Dairy Science Degree holders. The requirement of basic Degree in Dairy Science and Technology shall not be insisted for the teachers who are serving in various departments of the Faculty of Dairy Sciences as on 31st March, 2011.

¶79

7. The UGC Regulations as well as Statute 140 provides that the qualification for appointment to the

¶80

post of Asst. Professor should be good academic record

¶81

W.P.(C) No.12622/15

¶82

:10:

¶83

with at least 55% marks at the Masters Degree level in a relevant subject from an Indian University or equivalent degree from an accredited foreign university with pass in NET. The discipline in question is Dairy Business Management. Admittedly petitioner does not have any qualification which has any relevancy in Dairy. It is evident that she has raised such claims under threat of termination from service knowing fully well that she is not having the requisite qualification for regular appointment.

¶84

8. Petitioner is mainly aggrieved by the

¶85

provisions contained in Sub clause (b) of clause (iv) of Statute 140 which insists the basic degree in Dairy Science/Technology or related Engineering. Exemption is

¶86

granted only in disciplines like Biochemistry, Biotechnology, Biostatistics, Dairy Husbandry and Computer Application in the event of nonavailability of persons with basic Degree in Dairy Science and Technology or related Engineering. It further provides that requirement of basic Degree in Dairy Science and Technology shall not be insisted for the teachers who

¶87

W.P.(C) No.12622/15

¶88

:11:

¶89

are serving in various departments of the Faculty of Dairy Sciences as on 31^st March, 2011.

¶90

9. Apparently petitioner is not having basic Degree in diary Science and Technology and she was not on the rolls of the University as on 31.03.2011. The provisions contained in the Statute insists the basic qualification in Dairy Science and Technology or related Engineering. Exemption from having that basic degree is permissible only in the absence of persons with basic degree that too only with respect to the disciplines mentioned therein. Apart from that exemption is provided in the case of those who have been functioning in the faculty of Dairy Science as on 31.03.2011.Petitioner was not serving in the University as on 31.03.2011. However there is no specific challenge to the said exemption on the basis of out of date.

¶91

10. As per the UGC regulations, the qualification should be PG Degreein a relevant subject. The discipline is Asst. Professor in Dairy Business Management. The challenge against the provisions in the

¶92

W.P.(C) No.12622/15

¶93

:12:

¶94

Statute on the ground of vagueness is raised when petitioner does not have any Degree in any subject which is relevant. Petitioner is having the Degree in MBA and does not have any qualification in PG Degree in any discipline relating to Dairy cannot be considered to have the requisite qualification just because of his Degree in Business Management. Therefore if at all there is vagueness the petitioner does not have any right to challenge it. The petitioner who does not have any basic degree in Dairy Science and Technology cannot be heard to raise any such contention. It is for the Government to prescribe the First Statute and Government has prescribed it by virtue of the powers conferred on it under the provisions contained in the Act. The qualifications are prescribed with respect to the academic requirement with the help of experts in the field. Therefore this Court is not supposed to interfere with such matters which are already dealt with by competent persons who are having sufficient expertise in the field. It is settled law that the Court under Article 226 have to keep away from such

¶95

W.P.(C) No.12622/15

¶96

:13:

¶97

academic matters, in the light of judgment of the apex court in Basavaiah (Dr.) vs. Dr.H.L.Ramesh and others :

¶98

(2010) 8 SCC 372, Madras Institute of Development Studies & another V K. Subramanian & another: (2016)1

¶99

SCC 454, etc .

¶100

11. In this context I find it appropriate to have

¶101

a look at the reliefs sought in this writ petition,

¶102

which read as follows:

¶103

a . Call for entire records leading to the issue of Exhibit P-5 University Statutes.

¶104

b . Issue a writ of certiorari or any other appropriate writ order or direction quashing Exhibit P-5 Statutes to the extend it prescribes qualifications for Assistant Professors in the Faculty of Dairy Science and Technology;

¶105

c . Issue a writ of certiorari or any other appropriate writ order or direction quashing the entire selection process pursuant to Exhibit P-4 notification in so far as the appointment to the post of Assistant Professor in the discipline Dairy Business Management in the faculty of Dairy Science and Technology is concerned;

¶106

d . Issue a writ of mandamus or any other appropriate writ order or direction directing the 2 nd respondent not the terminate the services of the petitioner and allow her to continue in the post.

¶107

12. Even after the judgment of apex court in

¶108

Prabodh Verma v. State of U.P., (1984) 4 SCC 251 as

¶109

early as in 1984 which considered a similar issue,

¶110

such prayers are being sought in several writ petitions. It is therefore necessary that those who

¶111

draft Writ Petitions, keep in mind the following

¶112

W.P.(C) No.12622/15

¶113

:14:

¶114

observations in the judgment in Prabodh Verma's case

¶115

(supra),

¶116

29. xxx

¶117

While there can be no fault found with the second prayer, it is somewhat astonishing to find a prayer asking for “a writ in the nature of certiorari calling for the records of the case and quashing the U.P. Ordinance 22 of 1978”. The claiming of such a relief shows a lack of understanding of the true nature of the writ of certiorari.

¶118

30. This is not the first occasion on which we have found a similar prayer when the relief claimed was on the basis that a particular legislative measure was unconstitutional and void. It will not, therefore, be out of place if for the sake of future draftsmen of writ petitions, we were to draw attention to the true nature of the writ of certiorari.

¶119

31. A writ of certiorari can never be issued to call for the record or papers and proceedings of an Act or Ordinance and for quashing such Act or Ordinance. The writ of certiorari and the writs of habeas corpus, mandamus, prohibition and quo warranto were known in English common law as “prerogative writs”. “Prerogative writs” are to be distinguished from “writs of right” also known as “writs of course”. Writs issued as part of the public administration of justice are called “writs of right” or “writs of course” because the Crown is bound by Magna Carta of 1215 to issue them, as for instance, a writ to commence an action at common law. Prerogative writs are (or rather, were) so called because they are issued by virtue of the Crown’s prerogative, not as a matter of right but only on some probable cause being shown to the satisfaction of the court why the extraordinary power of the Crown should be invoked to render assistance to the party. The common law regards the Sovereign as the source or fountain of justice, and certain ancient remedial processes of an extraordinary nature, known as prerogative writs, have from the earliest times issued from the Court of King’s Bench in which the Sovereign was always present in contemplation of law. (See Jowitt’s Dictionary of Law, Vol. 2, p. 1885, and Halsbury’s Laws of England, Fourth Edn., Vol. 11, para 1451, f.n. 3).

W.P.(C) No.12622/15

:15:

1. xxxx

1. The fact that the High Courts and a fortiori this Court have power to mould the reliefs to meet the requirements of each case does not mean that the draftsman of a writ petition should not apply his mind to the proper relief which should be asked for and throw the entire burden of it upon the Court. An advocate owes a duty to his client as well as to the court — a duty to his client to give of his best to the case which he has undertaken to conduct for his client and a duty to assist the court to the utmost of his skill and ability in the proper and satisfactory administration of justice. In our system of administration of justice the courts have a right to receive assistance from the Bar and it is the duty of the advocate who drafts a writ petition or any other pleading to ask for appropriate reliefs. Xxxxx

¶124

38. A writ in the nature of certiorari is thus a wholly inappropriate relief to ask for when the constitutional validity of a legislative measure is challenged and it is surprising to find that in spite of repeated pronouncements of this Court as to the true nature of this writ it should have been asked for in the Sangh’s petition. As pointed out in Dwarkanath case⁶ under Article 226 the High Courts have the power to issue directions, orders and writs, including prerogative writs. This power includes the giving of declarations as also consequential reliefs including relief by way of injunction. The proper relief for the petitioners in the Sangh’s petition to have asked was a declaration that U.P. Ordinance 22 of 1978 was unconstitutional and void and, if a consequential relief was thought necessary, a writ of mandamus or writ in the nature of mandamus or a direction, order or injunction restraining the State and its officers from enforcing or giving effect to the provisions of that Ordinance. The High Court granted the proper relief by declaring that Ordinance to be void but it should have, before proceeding to hear the writ petition, insisted that the petitioners should set their house in order by amending the petition and praying for proper reliefs. The High Court was too indulgent in this matter. After all, it was not a petition from a prisoner languishing in jail or from a bonded labourer or a party in person or by a public-spirited citizen seeking to bring a

¶125

W.P.(C) No.12622/15

¶126

:16:

¶127

gross injustice to the notice of the court. Here, the High Court had before it as the main petitioner a union which had taken collective action to enforce its demands and had defied the Government by flouting its orders and an Ordinance promulgated by the Governor, namely, U.P. Ordinance 25 of 1977, and had by reason of its collective might ultimately made the Government come to terms with it. The petitioners were represented by well-known counsel, one of them practising in this Court. It is true that neither this Court nor any High Court should dismiss a writ petition on a mere technicality or just because a proper relief is not asked for; but from this it does not follow that it should condone every kind of laxity. We would not have dwelt upon this aspect of the case but for the fact that we find that laxity in drafting all types of pleadings is becoming the rule and a well-drafted pleading, an exception. An illdrafted pleading is an offspring of the union of carelessness with imprecise thinking and its brothers are slipshod preparation of the case and rambling and irrelevant arguments leading to waste of time which the courts can ill afford by reason of their overcrowded dockets.

¶128

Accordingly the writ petition fails and is

dismissed.

Sd/-

P.V.ASHA

JUDGE

rkc

W.P.(C) No.12622/15

:17:

APPENDIX OF WP(C) 12622/2015

¶137

PETITIONER'S/S EXHIBITS:

¶138

EXHIBIT P1 EXT.P1 TRUE COPY OF NOTIFICATION FOR APPOINTMENT ISSUED BY THE 2ND RESPONDENT 18/4/2013

¶139

EXHIBIT P2 EXT.P2 TRUE COPY OF THE INTERVIEW CALL LETTER ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT DT.24/07/2013

¶140

EXHIBIT P3 EXT.P3 TRUE COPY OF THE APPOINTMENT LETTER ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT DT.17/01/2014

¶141

EXHIBIT P4 EXT.P4 TRUE COPY OF THE NOTIFICATION DT.12/06/2014 CALLING FOR APPOINTMENT TO THE POST OF ASSISTANT PROFESSORS

¶142

EXHIBIT P5 EXT.P5 TRUE COPY OF THE CLAUSE 140 TO 142 OF THE KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY FIRST STATUTES PUBLISHED IN KERALA GAZETTE (EXTRAORDINARY)NOTIFICATION NO.1283 DT.20/05/2014.

¶143

EXHIBIT P6 EXT.P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE IST RESPONDENT VICE-CHANCELLOR

¶144

EXHIBIT P7 EXT.P7 TRUE COPY OF DETAILED SYLLABUS OF DISCIPLINE OF DAIRY BUSINESS MANAGEMENT

¶145

EXHIBIT P8 EXT.P8 TRUE COPY OF THE CERTIFICATE ISSUED BY THE GOVERNMENT MEDICAL COLLEGE HOSPITAL,THRISSUR CERTIFYING THAT THE SON OF THE PETITIONER IS DIAGNOSED WITH A CASE OF AUTISM WITH BORDERLINE INTELLIGENCE DT.25/09/2013.

¶146

RESPONDENTS' EXHIBTIS

¶147

W.P.(C) No.12622/15

¶148

:18:

¶149

EXTR1A PHOTOCOPY OF THE ORDER EXT.R1B PHOTOCOPY OF THE PROCEEDINGS NO.GA/C/520/2013 DT.2.2.215

Rekha U Menon v. Vice-Chancellor,Kerala Veterinary Animal Science University

Case brief

What is this about?

What did the court decide?

Rekha U Menon v. Vice-Chancellor,Kerala Veterinary Animal Science University

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Dr.Dayamon D Mathew Vs Kerala Veterinary & Animal Sciences

C.R. Subhash Chandra Bose Vs Kerala State Electricity Board Ltd.

K.Ashok Kumar Vs Kerala Stae Council for Science

Suraj S, Vs State of Kerala

Malabar Cancer Centre Society Vs Sivadas P.P

Lineesh.a.K Vs the Kerala Gramin Bank