Dr.Sajan D vs Cochin University Of Science And ...
2021 Latest Caselaw 3697 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE AMIT RAWAL

     TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                       WP(C).No.13918 OF 2020(L)


PETITIONER/S:

                DR.SAJAN D.,
                AGED 47 YEARS
                S/O.DAVIDSON, THUSHARA, KAMARAJ NAGAR, PERINGAMALA
                KALLIYOOR P.O., THIRUVANANTHAPURAM - 695 042.

                BY ADVS.
                SHRI.C.S.AJITH PRAKASH
                SMT.T.N.SREEKALA
                SHRI.BABU M.
                SMT.ANCY THANKACHAN

RESPONDENT/S:

      1         COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY
                COCHIN UNIVERSITY P.O., COCHIN - 682022, REPRESENTED
                BY ITS REGISTRAR.

      2         REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND
                TECHNOLOGY
                COCHIN UNIVERSITY P.O., COCHIN - 682022.

      3         STATE OF KERALA
                REPRESENTED BY PRINCIPAL SECRETARY TO THE GOVERNMENT
                OF KERALA, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT
                SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

                R1-2 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.02.2021, ALONG WITH WP(C).13985/2020(W), THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 WP(C).No.13918 & 13985OF 2020(L)


            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE AMIT RAWAL

    TUESDAY, THE 02ND DAY OF FEBRUARY 2021 / 13TH MAGHA,1942

                      WP(C).No.13985 OF 2020(W)


PETITIONER/S:

                NAJMATHU LAIL P.,
                AGED 30 YEARS
                D/O.MAYIN C.H., PARAPPURATH HOUSE, NEAR CITY JUMA
                MASJID, KANNUR, PIN-670003.

                BY ADVS.
                SHRI.C.S.AJITH PRAKASH
                SHRI.T.K.DEVARAJAN
                SMT.T.N.SREEKALA
                SRI.FRANKLIN ARACKAL
                SHRI.BABU M.
                SMT.ANCY THANKACHAN

RESPONDENT/S:

      1         COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY
                COCHIN UNIVERSITY P.O., COCHIN-682022, REPRESENTED
                BY ITS REGISTRAR.

      2         REGISTRAR,
                COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN
                UNIVERSITY P.O., COCHIN-682022.

      3         STATE OF KERALA,
                REPRESENTED BY PRINCIPAL SECRETARY TO THE
                GOVERNMENT OF KERALA, DEPARTMENT OF HIGHER
                EDUCATION, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM-695001.

                R1-2 BY SRI.VIPIN D.G., SC, COCHIN UNIVERSITY OF
                SCIENCE AND TECHNOLOGY

OTHER PRESENT:
             GP SRI B HARISH KUMAR

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.02.2021, ALONG WITH WP(C).13918/2020(L), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.13918 & 13985OF 2020(L)




                                JUDGMENT

[ WP(C).13918/2020, WP(C).13985/2020 ]

Dated this the 2nd day of February 2021

The captioned writ petitions are in respect of denial of

opportunity to apply to the post of Asst. Professor, Department of

Physics/Legal Studies, Cochin University of Science and Technology,

thus, involves same question of facts and law, therefore, are decided

together through this common judgment.

2. The petitioner in W.P.(C)No.13985/2020 (hereinafter

referred to as 'first writ petition') is holder of Degree of Master of

Laws (LL.M) in the first class and also NET by UGC. He belongs to the

Muslim community. While so, petitioner came across a notification

published by the 2nd respondent dated 22.10.2019 for filling up the

post of Assistant Professor in the Department of Legal Studies. The

vacancies in question notified in Department of Legal Studies were at

Serial Nos.20 & and 21 i.e. for the subjects, "Human Rights/Criminal

Law" and "Constitutional Law/Maritime Law", and are earmarked for

open category candidates and SC Category, respectively. The

petitioner in W.P.(C)No.13918/2020 (hereinafter referred to as the

second writ petition) belongs to the OBC (SICU Nadar) community

and possess qualifications of Msc., B.Ed, M Phil, Ph.D in Physics, WP(C).No.13918 & 13985OF 2020(L)

working as Assistant Professor, Bishop Moore College Mavelikkara,

since 2.6.2009. In the year 1998 acquired the Master's Degree in

Physics from Bharathidasan University, Thiruchirappalli and also in

the year 2003, Degree of Master of Philosophy in Physics from Cochin

University of Science and Technology. Being aspirants to the above

mentioned posts, did not apply for the post before the last date of

submission of application, which expired on 9.12.2019. Petitioner in

the first writ petition submits that the Degree of Master of Laws

(LL.M) awarded by the 2nd respondent University to the petitioner is

never subject-wise, thus, notification inviting applications subject-

wise is arbitrary and discriminatory.

3. As per the UGC Regulation, 2018 the minimum

qualification prescribed for the post of Assistant Professor for the

discipline of Arts, Commerce and Commerce, Humanities, Education,

Law Social Science, Sciences, Languages, Library Science, Physical

Education and Journalism & Mass Communication is Masters degree

with 55% marks (or an equivalent grade in a point-scale) wherever

the grading system is followed) from an Indian University. No other

Universities in Kerala is notifying vacancies sub-categorizing the

departments, or subject wise. Even the vacancies of Assistant

Professor in a particular department subject wise excludes eligible

candidates having the qualification as per the UGC norms to the post

in a particular Department. Rule 15 (d) of KS & SSR specify that WP(C).No.13918 & 13985OF 2020(L)

reservation to a category of posts shall not exceed 50% of the total

number of vacancies for which selection is resorted to in a selection

year. Altogether 52 vacancies were notified and 32 were earmarked

for reserved categories including PwD candidates, exceeded 50%

ceiling limit.

4. On the other hand Sri.Vipin. D.G., learned Counsel

representing respondents 1 and 2, submits that both the writ

petitions are not maintainable as the writ petitions are filed belatedly

after six months from the last date of the application. The intention of

the petitioners is to delay the process initiated by the University and

in case they were aggrieved by the conditions and qualifications

prescribed, they could have challenged immediately after the date of

notification, but not after the expiry of its validity. Both the petitioners

could not apply in time for the above post. It was also submitted that

the University has not committed any wrong while issuing Ext.P4

notification. As per Section 31 (11) of the Cochin University of

Science and Technology Act, 1986, communal rotation is to be

followed category-wise treating all the Departments as one unit and

the appointments in the University were made, in tune with said

provision by maintaining roster. The reservation for the posts is fixed

as per the roster following the provisions of KS & SSR. The validity of

Section 31 (11) of the Cochin University of Science and Technology

Act has already been upheld by this Court in Jose Vs. Cochin WP(C).No.13918 & 13985OF 2020(L)

University [1993 (2) KLT 347]. Notification cannot be said to be in

violation of UGC norms. Subsequent to the aforementioned

judgment, the Ministry of Law and Justice, Government of India vide

notification dated 7.3.2019 issued an Ordinance viz., Central

Educational Institutions (Reservation Teacher's Cadre) Ordinance

2019, prescribing reservation of the posts of a Central Educational

Institutions to be one unit. The University Grants Commission vide

letter dated 8.3.2019 also clarified that for the purpose of reservation

of posts for direct recruitment in Teachers Cadre, the

University/College/Institution shall be regarded as one unit. The post

of Assistant Professors as per the notification Ext.P4

(WP(C).13985/20) was notified after considerable research in the

School of Legal Studies as the person, who possess such qualification

are always in demand.

5. In the case of teaching staff, the University maintains three

different rosters, one each for appointment to the post of Assistant

Professor, Associate Professor and Professor. Challange raised by the

petitioners is not tenable and unsustainable, and urged this Court for

dismissal of the writ petition.

6. I have heard learned Counsel for the parties and appraised

the paper books. This Court while admitting the writ petition ordered

that any appointment made to the post of Assistant Professor in Legal

Studies and in Physics would be subject to the result of these writ WP(C).No.13918 & 13985OF 2020(L)

petitions. It is a matter of record that both the petitioners failed to

submit their application before the last date of submission of

application. The reasoning assigned during the course of argument is,

they could not fill up the application in time but acquired the

knowledge later on.

7. Such contumacious approach of the petitioners cannot be

entertained by writ court under Article 226 of the Constitution of

India as there would be a plethora of litigation. The Selection process

once initiated would be stalled for a considerable time depending

upon fate of the case. It is settled law that any condition or

notification, if in accordance with statute or UGC scheme had a

binding force, required to be challenged much before the expiry so

that process once initiated is not stalled. Even there has not been any

diligence in approaching the court with promptitude as writ petitions,

admittedly, have been filed six months after the last date of

submission of application. As far as fixing of roster is concerned, it

was strictly in accordance with the University Rules as revealed from

the counter affidavit of the respondents, its follow up has been upheld

by this Court in the judgment cited above. It was also held that the

classification of posts would not be violative. The vacancies notified

had arisen earlier, which could not be filled up owing to the lack of

availability of qualified candidates, even the interview process on the

basis of the notification had taken place. The University had been WP(C).No.13918 & 13985OF 2020(L)

applying Rules of reservation to effectively implement the mandate of

Article 46 of Constitution of India and provisions of CUSATA 1986.

There is no illegality in the stand of University in maintaining three

different rosters one each for Assistant Professor, Associate Professor

and Professor. The post of Assistant Professor in the School of Legal

Studies arose on 22.4.2016 and 27.1.2017 owing to the retirement of

one N.S.Soman and direct recruitment of Seema P.S. as Associate

Professor. In such circumstances, it cannot be contended that the

University resolved to 100% reservation or exceeded 50%.

For the reasoning aforementioned, I am of the view that there is

no force in the submission of the learned Counsel for the petitioners.

The writ petitions are accordingly dismissed.

Sd/-

AMIT RAWAL

JUDGE

Jm/ WP(C).No.13918 & 13985OF 2020(L)

APPENDIX OF WP(C) 13918/2020 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE DEGREE OF DOCTOR OF PHILOSOPHY IN PHYSICS ISSUED BY THE UNIVERSITY OF KERALA UNDER REG.NO.3713, DATED 24/04/2009.

EXHIBIT P2 A TRUE COPY OF THE NOTIFICATION BEARING NO.AD.D2/136/NOTIF/2018(3) DATED 22/10/2019, ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P3 A TRUE COPY OF THE NOTIFICATION BEARING NO.AD.D2/136/NOTIF/2018(2) DATED 26/12/2019, ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P4 A TRUE COPY OF THE GOVERNMENT OF INDIA OFFICE MEMORANDUM BEARING NO.36035/02/2017- ESTT (RES) DATED 15/01/2018 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING.

EXHIBIT P5 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO.9784 OF 2015 AND CONNECTED CASES DATED 03/02/2016, DOWNLOADED FROM THE WEBSITE OF THE HIGH COURT OF KERALA.

EXHIBIT P6 A TRUE COPY OF THE NOTIFICATION BEARING FILE NO.GA-II/C1/156687/2019/ADMN, DATED 31/12/2019, DOWNLOADED FROM THE WEBSITE OF THE UNIVERSITY OF CALICUT.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF THE CORRIGENDUM NO.AD.D2/136/NOTIF/2018 (VOL.II) DATED 30.11.2019.

EXHIBIT R1(B) TRUE COPY OF THE LETTER NO.F.1-5/2006(SCT) DATED 08.03.2019.

EXHIBIT R1(C) TRUE COPY OF THE LETTER NO.F.1-5/2006(SCT) DATED 03.06.2019.

EXHIBIT R1(D) TRUE COPY OF GAZETTE NOTIFICATION DATED 09.07.2019.

EXHIBIT R1(E) TRUE COPY OF THE UNIVERSITY ORDER NO.AD.D3/144/PH/09 DATED 08.04.2013.

EXHIBIT R1(F) TRUE COPY OF THE FIRST PAGE AND OTHER WP(C).No.13918 & 13985OF 2020(L)

RELEVANT PAGES OF THE ROSTER REGISTER.

EXHIBIT R1(G) TRUE COPY OF THE NOTIFICATION NO.AD.H/49584/2018/2019/ASST.PROF.IMK DATED 25.06.2019 OF UNIVERSITY OF KERALA.

EXHIBIT R1(H) TRUE COPY OF THE NOTIFICATION NO.AD.A II(1)5038/2017/ADMN (4) DATED 28.04.2018 OF M.G.UNIVERSITY.

EXHIBIT R1(I) TRUE COPY OF THE NOTIFICATION NO.AD.D/686/SSUS/2019 DATED 26.08.2019 OF SREESANKARACHARYA UNIVERSITY OF SANSKRIT.

EXHIBIT R1(J) TRUE COPY OF THE NOTIFICATION NO.ACAD.B3/10808/2018 DATED 03.10.2019 OF KANNUR UNIVERSITY.

EXHIBIT R1(K) TRUE COPY OF THE PROVISI0NAL RANK LIST PUBLISHED AS NOTIFICATION NO.ADMIN/AD- B1/6306/2020 DATED 23.07.2020 OF KANNUR UNIVERSITY.

WP(C).No.13918 & 13985OF 2020(L)

APPENDIX OF WP(C) 13985/2020 PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE MASTER'S DEGREE IN LAW ISSUED BY THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY UNDER REGISTRATION NO.45001016 APR 2012 DATED 12.03.2013.

EXHIBIT P2 A TRUE COPY OF THE CERTIFICATE BEARING SERIAL NO.213413, DATED 13.07.2012, ISSUED BY THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, INDICATING THE CUMULATIVE GRADES AWARDED TO THE PETITIONER IN LL.M DEGREE EXAMINATION.

EXHIBIT P3 A TRUE COPY OF THE CERTIFICATE BEARING NO.111010985, DATED 03.01.2012, ISSUED BY THE UGC.

EXHIBIT P4 A TRUE COPY OF THE NOTIFICATION BEARING NO.AD.D2/136/NOTIF/2018(1) DATED 22.10.2019,ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P5 RELEVANT PAGES OF THE UNIVERSITY GRANTS COMMISSION (MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF IN UNIVERSITIES AND COLLEGES AND OTHER MEASURES FOR THE MAINTENANCE OF STANDARDS OF HIGHER EDUCATION) REGULATIONS, 2018 DATED 18.07.2018, DOWNLOADED FROM THE WEBSITE OF UNIVERSITY GRANTS COMMISSION.

EXHIBIT P6 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P(c)NO.9785 OF 2015 AND CONNECTED CASES, DATED 03.02.2016, DOWNLOADED FROM THE WEBSITE OF THE HIGH COURT OF KERALA.

EXHIBIT P7 A TRUE COPY OF THE NOTIFICATION BEARING FILE NO.GA-II/C1/156687/2019/ADMN. DATED 31.12.2019, DOWNLOADED FROM THE WEBSITE OF THE UNIVERSITY OF CALICUT.

EXHIBIT P8 A TRUE COPY OF THE GOVERNMENT OF INDIA OFFICE MEMORANDUM BEARING NO.36035/02/2017- ESTT(RES) DATED 15.01.2018 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING.

WP(C).No.13918 & 13985OF 2020(L)

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF CORRIGENDUM NO.AD.D2/136/NOTIF/2018 (VOLL.II) DATED 30.11.2019.

EXHIBIT R1(B) TRUE COPY OF THE LETTER NO.F.1-5/2006 (SCT) DATED 8.3.2019.

EXHIBIT R1(C) TRUE COPY OF THE LETTER NO.F.1-5/2006 (SCT) DATED 3.6.2019.

EXHIBIT R1(D) TRUE COPY OF THE GAZETTE NOTIFICATION DATED 9.7.2019.

EXHIBIT R1(E) TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS FOR THE ACADEMIC YEAR 2020-21 ISSUED BY THE UNIVERSITY.

EXHIBIT R1(F) TRUE COPY OF THE UNIVERSITY ORDER NO.AD.D3/144/PH/09 DATED 8.4.2013.

EXHIBIT R1(G) TRUE COPY OF THE FIRST PAGE AND OTHER RELEVANT PAGES OF THE ROSTER REGISTER OF ASSISTANT PROFESSOR.

EXHIBIT R1(H) TRUE COPY OF NOTIFICATION DATED 25.6.2019 OF THE UNIVERSITY OF KERALA.

EXHIBIT R1(I) TRUE COPY OF NOTIFICATION DATED 28.4.2018 OF MAHATMA GANDHI UNIVERSITY, KOTTAYAM.

EXHIBIT R1(J) TRUE COPY OF NOTIFICATION DATED 26.8.2019 OF SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY.

EXHIBIT R1(K) TRUE COPY OF NOTIFICATION DATED 3.10.2019 OF KANNUR UNIVERSITY.

EXHIBIT R1(L) TRUE COPY OF THE NOTIFICATION DATED 23.7.2020 OF THE KANNUR UNIVERSITY.