Dismissed

Linda Pious John v. State of Kerala

Kerala HC7 Mar 2019WP(C)/29034/2018

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition filed by a lecturer challenging the University's refusal to approve her appointment from her initial date due to lack of NET qualification. The Court held that her challenge was barred by res judicata as it sought to re-open concluded judgments and relied on a past Supreme Court order that was expressly overruled for retrospective effect by a subsequent Sup

What did the court decide?

The Writ Petition is dismissed. No direction to govern to reconsider exemption. No arrears granted.

Linda Pious John Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2019)

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WP(C).No. 29034 of 2018 1

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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THURSDAY, THE 07TH DAY OF MARCH 2019 / 16TH PHALGUNA, 1940

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WP(C).No. 29034 of 2018

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PETITIONER:

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LINDA PIOUS JOHN AGED 33 YEARS D/O PIOUS JOHN, ASSISTANT PROFESSOR IN FRENCH, FATIMA MATHA NATIONAL COLLEGE, KOLLAM, RESIDING AT PLIN ROSA, DIVYA NAGAR 49, PATTATHANAM P.O. KOLLAM691021

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BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SMT.DEEPTHI S.MENON K.SURESH

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY , DEPARTMENT OF HIGHER EDUCATION, SECRETRIAT, THIRUVANANTHAPURAM-695001

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2 DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE OF COLLEGIATE EDUCATION, 6TH FLOOR, VIKAS BHAVAN, VIKAS BHAVAN, P.O, THIRUVANANTHAPURAM-695033.

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3 THE UNIVERSITY OF KERALA, REP.BY ITS REGISTRAR, UNIVERSITY OF KEARALA, THIRUVANANTHAPURAM-695001

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4 THE MANAGER, FATIMA MATA NATIONAL COLLEGE, KOLLAM-691001

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5 THE UNIVERSITY GRANTS COMMISSION,

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REP.BY ITS SECRETARY, BAHADUR SHAH SAFAR MARG, NEW DELHI-110001.

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BY ADVS. SRI.NOBEL RAJU SRI.S.KRISHNAMOORTHY, CGC SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA

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WP(C).No. 29034 of 2018 2

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SRI.C.R.JAYAKUMAR GOVT.PLEADER.SMT.RAJIT BHASKAR SR.G.P.SRI.ARAVINDA KUMAR BABU.T.K.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.1.2019, THE COURT ON 7.3.2019 DELIVERED THE FOLLOWING:

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WP(C).No. 29034 of 2018 3

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JUDGMENT

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The petitioner was appointed as Lecturer in French, in the Fathima Matha National College, Kollam on 17.1.2008. At the time of her appointment the petitioner did not have the requisite qualification of pass in National Eligibility Test (NET) in French. The 4^th respondent Manager had, as per letter dated 24.4.2008, submitted a proposal before the University, for approval of the petitioner's appointment with effect from 17.1.2008. Since the petitioner did not have the requisite qualification for being appointed as Lecturer/Assistant Professor, the University addressed the UGC, seeking its concurrence for granting exemption to the petitioner and approving her appointment. In the meanwhile, the petitioner acquired NET qualification on 30.11.2011. Thereafter, the petitioner approached this Court by filing WP(C) No.7882 of 2013, aggrieved by the delay on the part of the University in approving her appointment. That Writ Petition was disposed of under Ext P3 judgment, directing the UGC to take appropriate decision on the proposal made by the University, in the matter of relaxation of NET qualification and approval of the petitioner's appointment with effect from 17.1.2008. By order

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dated 1.10.2013, the UGC informed the University that there is no scope for relaxation/ condonation/exemption in minimum qualification for appointment to the post of Lecturer/Assistant Professor. It was informed that the petitioner's service can be regularised from the date she cleared the NET and on satisfying the other conditions laid down in UGC (Minimum Qualification for Appointment of Teachers and other Academic

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Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2010. In the light of the definite stand taken by the UGC, the Syndicate directed the Management to submit a revised proposal seeking approval of the petitioner's appointment from the date she acquired NET qualification. Accordingly, a revised proposal was submitted by the Management and sanction was accorded for approval of the petitioner's appointment as Assistant Professor in French w.e.f 30.11.2011 F.N only and not from the date of her initial appointment. This order of the University, (Ext P5), is under challenge in the Writ Petition.

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The learned counsel for the petitioner contended that the proviso to Regulation 3.3.3 of UGC (Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of

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Standards in Higher Education) Regulations, 2010 empower the University to grant exemption from acquiring NET qualification, with the concurrence of the State Government. It is contended that though the University had addressed the Government on the question of grant of exemption to the petitioner, no reply was received till date and therefore, the Government may be directed to consider the issue. That, the

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University may be directed to grant approval for the petitioner's appointment, depending upon the decision taken by the Government. It is contended that as on the date of appointment of the petitioner, no amendment had been made to the University Statutes, based on the UGC Regulations and that this court in the decision reported in S.N.College v N.Raveendran (2001 (3) KLT 938) had declared that unless and until amendments are effected in the University Statutes, the qualification prescribed by the UGC would not be applicable to Private Colleges and that the Management of Private Colleges were not bound to follow the UGC Regulations. It is pointed out that though, a Full Bench of this Court in the decision in Radhakrishna Pillai v Travancore Devaswom Board (2016(2) KLT 245), had overruled the decision in S.N.College v N.Raveendran (2001 (3) KLT

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938) , the Hon'ble Supreme Court had, vide Ext P7 order dated 17.7.2018, declared that the judgment in Radhakrishna Pillai' s case would be applicable only from the date of judgment i.e, 23.2.2016. It is therefore contended that in the light of the order of the Hon'ble Supreme Court, the University is bound to consider the petitioner's case afresh and to approve the petitioner's appointment from 17.1.2008 onwards.

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In the counter statement filed on behalf of the University, it is stated that as per the UGC Regulations any relaxation in the prescribed qualification can be made by the University only with the prior approval of the UGC. Therefore, a letter was sent to the UGC seeking clarification as to whether the petitioner could be given a suitable period of time for clearing the NET in French. That, no reply was received from the UGC. It is further stated that the Government, when addressed in the matter, had only sought remarks of the University with regard to paragraph 3.3.3 of the UGC Regulations and as to the stand of the UGC in its reply, if any, to the University. It is stated that the petitioner qualified the UGC NET on 30.11.2011 and thereupon, the UGC was again addressed, seeking clarification regarding the eligible date of appointment of the petitioner. That, a reply was received from

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WP(C).No. 29034 of 2018 7

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the UGC wherein it was stated as follows:-

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“After coming into force of the UGC (Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2010, there is no provision for granting relaxation or exemption from the requirement of NET. There is only two situations contemplated under the Regulations, when NET may not be insisted as an essential requirement. First, if the candidate has obtained Ph.D. Degree which is in accordance with the UGC Regulations. Second, if no NET is conducted in the relevant discipline. Moreover, NET is conducted in the subject of French”.

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4. It is stated that though the petitioner was directed to

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produce a certificate from the UGC stating that NET exam was not conducted for French at the time of the petitioner's appointment, she expressed her inability to obtain such a certificate. It is stated that after the petitioner acquired NET qualification, she had requested for approving her appointment w.e.f 30.11.2011, the date on which she acquired the qualification. Finally it is submitted that in the light of the order of the UGC dated 1^st October, 2013, explicitly stating that exemption from educational qualification cannot be granted to the petitioner, it was impermissible for the University to take any other decision. The learned counsel for the University contended that Ext P5 order having been issued based on the

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WP(C).No. 29034 of 2018 8

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direction contained in Ext P4 judgment in WP(C) No.16964 of 2014 filed by the petitioner herself, it is not open for the petitioner to challenge Ext P5 order, that too after a period of four years.

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Heard Sri.Gopalakrishna Kurup, the learned senior counsel for the petitioner, Sri.Krishna Moorthy, the learned Standing Counsel for the 5^th respondent and Sri.Aravinda Kumar Babu.T.K, the learned senior Government Pleader.

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It is an undisputed fact that the petitioner did not have the requisite NET qualification as on 17.1.2008, the date of her initial appointment. Regulation 3.3.3 of the UGC (Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education) Regulations, 2010 empower the UGC to grant exemption from NET qualification in a particular subject in which NET/SLET/SET is not conducted. By its first letter itself, the UGC had refused to grant exemption to the petitioner pointing out that NET in French is being conducted. A reading of Ext P5 order would show that the petitioner had, vide letter dated 3.1.2013 forwarded through the Principal of her College , requested the University to approve her appointment from 30.11.2011 and

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the former half of her appointment to be considered later, on getting exemption from the UGC. Subsequently, after the petitioner acquired NET qualification, the issue was again considered by the UGC and vide its order dated 1^st October, 2013, the UGC reiterated that there is no scope for relaxation/condonation/exemption in minimum qualification and that the petitioner's service can be regularised only with effect from the date she cleared the National Eligibility Test. Thereafter, the Syndicate of the University directed the Management to submit a revised proposal, seeking approval of the petitioner's appointment w.e.f 30.11.2011 and such revised proposal was submitted by the Management. While so, the petitioner approached this court by filing WP(C) No.16964 of 2014 seeking the following reliefs:-

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a) To issue a writ of mandamus or any other appropriate directions compelling and commanding the second respondent and third respondent to approve the appointment of the petitioner in accordance with the decision of the University Grands Commission reflected in Ext P7, expeditiously and within a time frame that this Hon'ble Court may consider reasonable.

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b) To issue a writ of mandamus or any other appropriate directions compelling and commanding the first respondent and fifth respondent to disburse the arrears of salary and approval of appointment of the petitioner, expeditiously and within a time frame that

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this Hon'ble Court may consider reasonable.

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c) Issue such other Writ, Order or Direction that this Hon'ble Court may deem fit and proper in the nature and circumstances of the case.

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Ext P7 mentioned in prayer 'a' above is true copy of the order dated 1^st October, 2013 issued by the UGC, by which it had directed the University to approve the appointment of the petitioner only w.e.f the date on which she acquired the requisite qualification i.e, 30.11.2011. This Court, by Ext P4 judgment, directed the University to consider and finalise the case of the petitioner for regularisation in the light of Ext P7 therein and pass appropriate orders. Ext P5 order was issued by the University, in terms of the directions contained in Ext P4 judgment, by taking into consideration the order dated 1^st October, 2013 (Ext P7) of the UGC. Accordingly, the petitioner's appointment was approved w.e.f 30.11.2011. Though Ext P5 order is dated 24.9.2014, the petitioner challenged that order by filing the instant Writ Petition only on 3.9.2018. The reason which prompted the petitioner to file this Writ Petition is the order of the Apex Court, by which the judgment in Radhakrishna Pillai 's case was made applicable only from 23.2.2016.

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WP(C).No. 29034 of 2018 11

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The sole question to be considered is as to whether, after having sought approval of her appointment in terms of the direction contained in the order dated 1^st October, 2013 of the UGC and the University having issued Ext P5, strictly in terms of such direction, the petitioner can challenge Ext P5, by relying upon Ext P7 order of the Hon'ble Supreme Court. The answer to this question can only be in the negative for more reasons than one. The question of approval of the petitioner's appointment stood concluded by Ext P4 which is a judgment inter partes . The petitioner has no case that Ext P5 was not issued in terms of the directions contained in Ext P4 judgment. On the other hand, the petitioner was fully satisfied with Ext P5 order, till the issuance of Ext P7 order by the Apex Court. Ext P7 order will not benefit the petitioner in any manner since the entitlement for approval of the petitioner's appointment, from a date prior to her acquiring the requisite qualification, has already been rejected and such rejection has attained finality. The petitioner's case in the previous rounds of litigation was that she was entitled for the exemption provided under Regulation 3.3.3 of the UGC (Minimum Qualification for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of

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Standards in Higher Education) Regulations, 2010. That being the position, the attempt being made by the petitioner, through this Writ Petition, can only be perceived as an attempt to get over Ext P4 judgment and its consequence. This is legally impermissible, not only for the reason that the present Writ Petition and the relief sought therein would be barred by the principles of res judicata , but also for the reason that what

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is being attempted is a collateral challenge against Ext P4 judgment and Ext P5 consequential order. Entertaining such a challenge would go against the settled theory regarding finality of judgments. In this context it would be appropriate to cite the decision of the Hon'ble Supreme Court in Union of India

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and others v Major S.P.Sharma and others ((2014)6 SCC

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351) , wherein the Apex Court held as follows:-

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“In a country governed by the rule of Law, finality of judgment is absolutely imperative and great sanctity is attached to the finality of the judgment and it is not permissible for the parties to re-open the concluded judgments of the court as it would not only tantamount to merely an abuse of the process of the court, but would have far reaching adverse effect on the administration of justice.”

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For the aforementioned reasons, the challenge against Ext P5 is liable to be rejected.

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The UGC having rejected the request for granting exemption to the petitioner from educational qualification, for the purpose of her appointment, there cannot be a direction to the first respondent to consider as to whether exemption can be granted to the petitioner in the matter of acquiring NET qualification. The UGC being the appropriate authority for granting exemption from educational qualification, no purpose will be served by directing the Government to consider the petitioner's request for exemption. As such, the prayer in the Writ Petition to direct the Government to consider the petitioner's request for exemption and the consequential prayer for disbursal of arrears of salary and other benefits are bound to be rejected. The outcome of the findings is that the petitioner is not entitled for any of the reliefs sought in the Writ Petition. Accordingly, the Writ Petition is dismissed.

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Sd/- V.G.ARUN, JUDGE

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WP(C).No. 29034 of 2018 14

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE HELD ON 14.9.2007. EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER DATED 17.1.2008 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 23.5.2013 IN WPC.NO.7882/2013. EXHIBIT P4 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 12.8.2014 IN WPC.NO,16964/2014. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 24.9.2014 ISSUED BY THE 3RD RESPONDENT UNIVERSITY. EXHIBIT P6 TRUE COPY OF THE RELEVANT EXTRACT OF UNIVERSITY GRANTS COMMISSION (MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF IN UNIVERSITIES AND COLLEGES AND MEASURES FOR THE MAINTENANCE OF STANDARD IN HIGHER EDUCATION) REGULATIONS, 2009 DATED 23.9.2009. EXHIBIT P7 TRUE COPY OF THE REPORT SUBMITTED BY THE REGISTRAR, KERALA UNIVERSITY ON A COMPLAINT FILED BY THE PETITIONER TO THE CHIEF MINISTER'S PUBLIC GRIEVANCE REDRESSAL CELL. EXHIBIT P8 TRUE COPY OF THE EPORT SUBMITTED BY THE REGISTRAR, KERALA UNIVERSITY ON A COMPLAINT FILED BY THE PETITIONER TO THE CHIEF MINISTER'S PUBLIC GRIEVANCE REDRESSAL CELL. EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 6.1.2018 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT. RESPONDENTS EXTS NIL

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/TRUE COPY/ P.S.TO JUDGE cms

Linda Pious John v. State of Kerala

Case brief

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Linda Pious John v. State of Kerala

Case brief

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