Dr.Rajumon.T.Mavunkal vs Mahatma Gandhi University
2021 Latest Caselaw 4258 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

                   THE HONOURABLE MR. JUSTICE AMIT RAWAL

           FRIDAY, THE 5TH DAY OF FEBRUARY 2021 / 16TH MAGHA, 1942

                         WP(C).No.11223 OF 2020(C)

PETITIONER:

                DR.RAJUMON.T.MAVUNKAL,
                PRINCIPAL, ST.XAVIER'S COLLEGE VAIKOM,
                KOTHAVARA P.O., KOTTAYAM-686607.

                BY ADVS.
                SRI.BABY ISSAC ILLICKAL
                SRI.ISAAC KURUVILLA ILLIKAL

RESPONDENTS:

       1        MAHATMA GANDHI UNIVERSITY,
                REPRESENTED BY ITS REGISTRAR,
                PRIYADARSINI HILLS P.O., KOTTAYAM-686560.

       2        VICE CHANCELLOR,
                MAHATMA GANDHI UNIVERSITY,
                PRIYADARSINI HILLS P.O., KOTTAYAM-686560.

       3        STATE OF KERALA,
                REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
                GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

       4        DR.PADMAKUMAR P.K.,
                SYNDICATE MEMBER, MAHATMA GANDHI UNIVERSITY,
                PRIYADARSINI HILLS P.O., KOTTAYAM-686560.

       5        DR.C.T.ARAVINDAKUMAR,
                PRO-VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY,
                PRIYADARSINI HILLS P.O., KOTTAYAM-686560.

       6        DR.PRAKASH KUMAR.B.,
                REGISTRAR, MAHATMA GANDHI UNIVERSITY,
                PRIYADARSINI HILLS P.O., KOTTAYAM-686560.

       7        MANAGER,ST.XAVIER'S COLLEGE VAIKOM,
                KOTHAVARA P.O., KOTTAYAM-686607.

                BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY
                BY SRI.B.HARISH KUMAR, GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-01-2021,
THE COURT ON 05-02-2021 DELIVERED THE FOLLOWING:
 WP(C).No.11223 OF 2020                 -2-




                                   JUDGMENT

Dated this the 5th day of February 2021

Challenge in the present writ petition has been laid

to the order, dated 03.03.2020 Ext.P8 passed by the

Registrar of the 1st respondent Mahatma Gandhi

University, rejecting the approval of the appointment of

the petitioner to continue as Principal with effect from

01.05.2018.

2. Petitioner was appointed as Lecturer of

Physics in the St.Xavier's College, Vaikom (hereinafter

referred to as 'the College' for short) an Aided Minority

Educational Institution affiliated to the 1 st respondent,

Mahatma Gandhi University (hereinafter referred to as

'MGU Act' for short) on 27.01.1994. Vide Order dated

30.04.2015 Ext.P2, petitioner was appointed as

Principal for a period of three years with effect from

30.04.2015 A.N. to 30.04.2018. Vide order dated

25.11.2015 Ext.P3, the 2nd respondent accepted the

recommendation of the Standing Committee of the

Syndicate on Affiliation (Approval and Promotion) to

grant approval for the appointment of the petitioner for

the period aforementioned.

3. Learned counsel appearing on behalf of the

petitioner submits that the appointment of the petitioner

was in a substantive post thus acquired a lien as evident

from the relevant pages of Service Book Ext.P4. During

his tenure as the Head of the Institution, was responsible

for bringing in several accolades and achievements to

the college. The College was accredited with 'B' by the

NAAC and presently with 'B+'. On expiry of the three

year period, the 7th respondent, i.e., Manager of the

College, passed an order dated 24.04.2018 Ext.P5

extended the appointment as Principal for a further

period of four years i.e., from 01.05.2018 to 31.05.2022

(till his retirement).

4. Petitioner was shocked to receive the

communication dated 19.09.2018 Ext.P6 issued by the

Registrar of the 1st respondent University raising

objections on the approval of the extension. The first

objection was that the Academic Performance Indicator

(hereinafter referred to as 'API' for short) score sheet of

the petitioner was not recommended by a Committee as

stipulated under the University Grant Commission

Regulations, 2010 (on Minimum Qualifications for

appointment of Teachers and Other Academic Staff in

Universities and Colleges and Other Measures for the

Maintenance of Standards in Higher Education) 2010

(hereinafter referred to as 'UGC Regulations, 2010' for

short). The second objection raised, was, that the

petitioner had included the scores of his UG Project

Guidance, which could not be considered for the

appointment of Principal and the last objection was that

the Regulation 4.2.0(iii) of the UGC Regulations, 2010

stipulates Research Guidance which was wanting.

5. Aggrieved of the same the petitioner preferred

W.P.(C) No.21804 of 2019 and this Court vide judgment

dated 26.08.2019, directed the 1st respondent to place

the appointment proposal before the Syndicate for

approval. Syndicate was also directed to take note of the

order dated 25.11.2015 (Ext.P3 herein) and take a call

within a period of two months from the date of receipt of

a copy of the judgment. Syndicate of the University on

the basis of the report of the three member Committee

consisting of respondent Nos.4 to 6, rejected the

approval to the appointment of the petitioner vide

impugned order dated 03.03.2020 Ext.P8. It was

submitted that the order is not sustainable and

untenable inter alia on the following grounds:

(i) The impugned order is arbitrary, illegal and

unreasonable as it was passed without considering

any objections made by the petitioner. No opportunity

of hearing has been afforded. In support thereof, the

judgment of this Court in W.A.No.1311 of 2019 dated

14.06.2019 (Dr.Thara K.Simon V. Mahatma Gandhi

University) had been relied.

(ii) The Syndicate of the 1st respondent did not

furnish the complete report of the Committee

consisting of respondent Nos.4 to 6, nor any

explanation as sought by the petitioner.

(iii) The fact that the UGC Regulations, 2010 would

be applicable only from 23.02.2016 as per Ext.P9

judgment, clearly specified that there would be no

retrospective effect to the UGC Regulations, 2010.

Thus, for all intents and purposes, unconditional

approval granted to the petitioner could not have

been modified by relying upon Regulations, 2010.

(iv) Petitioner was mostly engaged in the

administrative duties associated to the post of

Principal and therefore, there was a considerable

decline in his teaching and research activities.

(v) The appointment of the petitioner as Principal was

unconditional and in a permanent post, acquired a

lien on the basis of Rule 16 of the Kerala Service

Rules which cannot be terminated in the manner as

has been done.

(vi) The fixation of three years period in Ext.P2 has

no basis in view of the Full Bench decision of this

Court in M.G.University V. John Kuriakose (Dr.)

(2015(1) KHC 236). It was held that there is no

provision in the M.G.University Law for fixing the

tenure of appointment of Principals as are deemed to

be permanent nature. UGC Regulations, 2010 is

applicable to appointment of Principals by direct

recruitment and not through promotion.

(vii) Ext.P8 is highly discriminatory and violative of

Article 14 of the Constitution of India as similarly

situated persons have been granted approval to

continue as Principal. The subsequent order was only

an extension as initial appointment was of permanent

nature.

6. Per Contra, Mr.Asok M. Cherian, learned

Standing Counsel appearing on behalf of the MG

University opposed the aforementioned submissions by

submitting that Clause 4.2.2 of UGC Regulations, 2010

do not deal with only the direct recruitment but also

promotions which mandates the minimum score as

stipulated in API. The appointment order was not till

the date of retirement but for three years and its

approval by the University could not be construed as

unconditional. Since the appointment vide Ext.P2 was

prior to the issuance of Ext.P10 whereby MG University

placed the material before the Syndicate Committee. It

was decided to apply UGC Regulations, 2010 for direct

recruitment of Principals from 23.02.2016 onwards. For

appointment through promotion, it was decided to make

applicable seniority-cum-fitness principle envisaged

under the MGU law, for, only basic eligibility is required

as per UGC Regulations 4.2.0. The aforementioned

decisions were taken in meeting held on 18.01.2017

and circulated on 01.02.2017. It was on that

background API score of the petitioner was not

processed before issuing Ext.P3. The appointment of the

petitioner by 7th respondent with effect from 01.05.2018

to 31.05.2022 vide Ext.P5 was not in conformity with the

regulations prescribed by UGC, as adopted by Ext.P10

order. The Division Bench of this Court in Writ Appeal

No.1311 of 2019 dated 14.06.2019 held that the

Government of Kerala had taken decision to approve and

implement the UGC Regulations and that the

Regulations would come into force with effect from

18.09.2010 and all the Universities in the State were

directed to incorporate the UGC Regulations in their

Statutes and Regulations, within a period of one month.

The argument of non applicability of UGC Regulations,

2010 with MG University was rejected. Even this Court

in the judgment dated 26.08.2019 in W.P(C) No.21804 of

2019 held that there was no dispute about the

qualifications provided in clause 4.2.0 of UGC

Regulations. Regulation 5.1.VII(d) of UGC Regulations,

2010, as per the judgment of the Supreme Court was

made applicable with effect from 23.02.2016. Argument

of the petitioner qua retrospective application of

aforementioned Regulations have no legs to stand. Full

Bench judgment regarding the appointment of the

Principals till the age of superannuation, would not be

applicable in this case owing to applicability of UGC

Regulations particularly 4.2.0. envisaging certain

conditions for holding such posts.

9. I have heard learned counsel for the parties.

10. On perusal of Ext.P2 there is no dispute on the

fact that the appointment of the petitioner as Principal

on promotion was for three years from 30.04.2015 A.N.

to 30.04.2018. This Court while disposing of W.P.(C)

No.21804 of 2019 in the order dated 26.08.2019 noted

that the proposal for appointment of the petitioner was

not forwarded to Syndicate. Relevant portion of the

judgment reads as under:

"5. Ext.P10 order issued by the University provides that the appointments by promotions would be made on seniority-cum-fitness basis from among those who are having the qualifications under clause 4.2.0 of the UGC Regulations, 2010. The petitioner claims that he is having all the qualifications and that he is the senior most and the question requires consideration by the Syndicate. However it can not be disputed that the qualifications are required as provided in the clauses 4.2.0 of the UGC Regulations.

Therefore the writ petition is disposed of directing the 1st respondent to see that the proposal for appointment of the 1st petitioner in Ext.P5 is placed before the Syndicate for approval. Syndicate shall also take note of the fact that approval in Ext.P4 was granted without providing for any time limit for the appointment and also the fact that the petitioner has been continuing as Principal from 01.05.2015 onwards. Orders shall be passed within a period of two months from the date of receipt of a copy of this judgment."

11. It is clear that applicability of UGC

Regulations, 2010 i.e., 4.2.0. was not in dispute. UGC

Regulations, 2010 became applicable by the Syndicate

Committee vide Ext.P10, the same reads thus:

Mahatma Gandhi University, Kerala

Summary

Private Aided Colleges- Guidelines for the appointments & approvals of Principal and Assistant Professors- Modification- Approved- Orders Issued.

Academic B1 Section U.O.No.614/B 1/Academic/2017 P.D.Hills, 01.02.2017 _________________________________________________________

References:-

1. Judgment of the Hon'ble High Court in W.P.(C) No.29253/2012 and connected cases dt.23.02.2016

2. Minutes of the decisions taken by the Syndicate Standing Committee of Affiliation & Approval dt.18.01.2017

Order The Hon'ble High Court of Kerala as per Ref(1) Judgment had specifically ordered that the guidelines UGC Regulations 2010 are bound to be followed by the University and the colleges of the State in matters regarding the appointments & approvals in Private Aided Colleges.

Syndicate Standing Committee of Affiliation & Approval convened on 18.01.2017 took the following decisions.

1. For the Direct Appointment of Principals it is decided to make the UGC Regulations 2010 applicable from 23.02.2016 onwards. For appointments through Promotions, it is decided to make applicable the seniority cum fitness principle envisaged in the Mahatma Gandhi University Law and only basic eligibility is required as per UGC Regulations (4.2.0)2010 is required.

2. It has been decided to continue the existing mode of constitution of Selection Committee for the selection of

Assistant Professors since the State Government had vide G.O.(P)No.398/2010/Edn.dt.17.12.2010 frozen the provisions relating to the constitution of a Selection Committee stipulated as per the UGC Regulations 2010 for the selection of Assistant Professors and also since the said order has not been challenged before the Court.

3. The above mentioned decisions have been approved by the Vice Chancellor by exercising the powers of the Syndicate as per Section 3, 10(17) of the Mahatma Gandhi University Act, 1985.

Order issued accordingly.

Sd/-

Komalavalli K Deputy Registrar 1(Academic) For Registrar

12. Clause 4.2.0. deals with the principles where

condition No.4, as per the stand of respondent was not

up to the mark or not considered for extension/approval

as Principal, the same reads thus:

"4.2.0.PRINCIPAL

i. A Master's Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) by a recognized University.

ii. A Ph.D.Degree in concerned/allied/relevant discipline(s) in the institution concerned with evidence of published work and research guidance.

iii. Associate Professor/Professor with a total experience of fifteen years of teaching/research/administration in Universities, Colleges and other institutions of higher education.

iv. A minimum score as stipulated in the Academic Performance Indicator (API) based Performance

Based Appraisal System (PBAS), as set out in this Regulation in Appendix III for direct recruitment of Professors in Colleges."

13. The judgment in W.A.No.1311 of 2019

(Dr.Thara K.Simon Vs. Mahatma Gandhi University and

others), in paragraph No.5, which is extracted herein

below, noticed that the UGC regulations came into being

with effect from 18.09.2010.

"5. At the first instance, we may deal with the applicability of the UGC Regulations to the colleges under the 1st respondent University. Learned Standing Counsel appearing for the 1st respondent had drawn our attention to Ext.P26 order passed by the University, dated 01.02.2017 (G.O No.614/B1/academic/2017). It is stated therein that, the University had decided to apply UGC Regulations with respect to the direct recruitment of Principals in all the affiliated colleges, from 23.02.2016. With respect to appointment by way of promotion, it is made clear that the criteria prescribed under the University Act, which is seniority-cum-fitness, is to be followed and Regulations 4.2.0 of the UGC Regulations with respect to basic qualifications, need to be followed. Evidently, Ext.P26 order was issued on the basis of the directions contained in a Full Bench decision of this Court reported in Radhakrishnan Pillai v. Travancore Devaswom Board [2016(2) KLT 245 (F.B)]. While deciding the issue, the Full Bench referred to an order passed by the State Government, G.O(P) No.392/2010/H.Edn.dated 10.12.2010. By the said order, the Government had taken decision to approve and to implement the UGC Regulations as such and it was decided that the Regulations will come into force with effect from 18.09.2010. All the Universities in the State was directed to incorporate the UGC Regulations in their Statutes and Regulations, within a

period of one month. In the Full Bench decision in Radhakrishnan Pillai's case (supra), the issue adjudicated was whether the affiliated colleges in the Universities within the State are bound to comply with the UGC Regulations, irrespective of whether the particular University had enacted any statute or regulations in consonance with the UGC Regulations. It was held that, in view of adoption made by the State Government with effect from 18.09.2010, as per the Government Order referred above, the Universities and affiliated colleges within the State are bound to comply with the UGC Regulations, 2010. Therefore we are of the considered opinion that, in view of the dictum contained in the decision in Radhakrishnan Pillai's case (supra) and in view of the Government Order referred above, no contention can be sustained that the UGC Regulations are not applicable with respect to the 1st respondent University or to the 3rd respondent college"

14. Though the petitioner's appointment is post

2010 but Clause 4.2.0. envisaged of holding of certain

API score which the petitioner lacked and the reasoning

assigned of dedication towards the administrative work

cannot be a ground for extension. I am not commenting

further on the merits of the matter as the order

impugned reveals that after obtaining the comments

from the members of the Syndicate, the applicability of

the UGC guidelines were considered and accepted . But

before acceptance in my view petitioner ought to have

been given an opportunity of hearing which would also

envisage objection, however, this has not been followed.

Thus for the time being I am of the view that the

impugned order cannot surpass the judicial scrutiny of

this Court for approval and accordingly the same is set

aside.

Writ petition is allowed to the limited extent that if

the petitioner is holding the post of Principal as of now,

in view of the status quo order dated 09.06.2020, the

respondent shall take call as expeditiously as possible,

affording opportunity of hearing within a period of forty

five (45) days and pass an order, in accordance with law.

Sd/-

AMIT RAWAL

JUDGE

vv

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 PHOTOCOPY OF THE PROFORMA OF THE DPI AGREEMENT.

EXHIBIT P2 PHOTOCOPY OF THE APPOINTMENT ORDER OF THE PETITIONER AS THE PRINCIPAL DATED 30.04.2015.

EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 25.11.2015 OF THE 1ST RESPONDENT UNIVERSITY.

EXHIBIT P4 PHOTOCOPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER.

EXHIBIT P5 PHOTOCOPY OF THE SAID ORDER OF THE 7TH RESPONDENT DATED 24.04.2018.

EXHIBIT P6 PHOTOCOPY OF THE SAID COMMUNICATION DATED 19.09.2018 ISSUED BY THE REGISTRAR OF THE 1ST RESPONDENT.

EXHIBIT P7 PHOTOCOPY OF THE JUDGMENT IN W.P(C)21804/2019 DATED 26.08.2019.

EXHIBIT P8 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DATED 03.03.2020.

EXHIBIT P9 PHOTOCOPY OF THE JUDGMENT IN SLP NOS.18938-18942/2017 DATED 17.07.2018.

EXHIBIT P10 PHOTOCOPY OF THE UNIVERSITY ORDER DATED 01.02.2017.

EXHIBIT P11 PHOTOCOPY OF THE RELEVANT PAGES OF THE SAID UGC REGULATIONS 2010.

EXHIBIT P12 PHOTOCOPY OF THE COMMUNICATION DATED 30.08.2016 OF THE UGC TO THE UNIVERSITIES.

EXHIBIT P13 PHOTOCOPY OF THE JUDGMENT DATED 27.04.2020 OF THE HIGH COURT OF BOMBAY.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1(a) A TRUE COPY OF THE RELEVANT EXTRACT OF UGC REGULATION (4TH AMENDMENT)