Mahatma Gandhi University vs Mahatma Gandhi University
2021 Latest Caselaw 5680 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                   &

                THE HONOURABLE MR. JUSTICE GOPINATH P.

    WEDNESDAY, THE 17TH DAY OF FEBRUARY 2021 / 28TH MAGHA,1942

                          WA.No.1355 OF 2019

 AGAINST THE JUDGMENT DATED 03-09-2018 IN WP(C) 13265/2018(G) OF
                      HIGH COURT OF KERALA


APPELLANTS/RESPONDENTS:

      1        MAHATMA GANDHI UNIVERSITY
               REPRESENTED BY ITS REGISTRAR,
               PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686560.

      2        VICE CHANCELLOR
               MAHATMA GANDHI UNIVERSITY,
               PRIYADARSHINI HILLS, ATHIRAMPUZHA,
               KOTTAYAM-686560.

      3        THE SYNDICATE
               MAHATMA GANDHI UNIVERSITY,
               PRIYADARSHINI HILLS, ATHIRAMPUZHA,
               KOTTAYAM-686560.

               BY ADV. SHRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY

RESPONDENT/PETITIONER:

               RINCYMOL MATHEW,
               AGED 48, W/O.SABU MATHEW,
               ASSISTANT PROFESSOR, SCHOOL OF BEHAVIOURAL SCIENCES,
               MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS,
               ATHIRAMPUZHA, KOTTAYAM-686560.

               R1 BY ADV. SRI.G.SREEKUMAR (CHELUR)

     THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-01-2021, THE
COURT ON 17-02-2021 DELIVERED THE FOLLOWING:
 WA No.1355/2019                      -2-


                                 JUDGMENT

Dated this the 17th day of February, 2021

A.K.Jayasankaran Nambiar, J:

This appeal is filed by the Mahatma Gandhi University aggrieved by

the judgment dated 03-09-2018 in W.P (C) No.13265/2018 that directed the

University to pass appropriate orders counting the past service of Smt.

Rincymol Mathew (petitioner in the writ petition), who was working as

Assistant Professor in School of Behavioural Sciences under the University,

for the purposes of computing the benefits due to her in accordance with

the Career Advancement Scheme specified in the UGC Regulations on

Minimum Qualification for Appointment of Teachers and Other Academic

Staffs in Universities and Colleges and Measures for the Maintenance of

Standards in Higher Education, 2010. The brief facts necessary for disposal

of this appeal are as follows:

2. Smt. Rincymol Mathew was initially appointed as a Lecturer in

the School of Medical Education, a self-financing institution under the

Mahatma Gandhi University with effect from 03-10-1998. The said

appointment was consequent to a selection process that was conducted

pursuant to administrative sanction accorded by the Vice-Chancellor of

University to the request received from the Director, School of Medical

Education. Her probation in the post of Lecturer was thereafter declared on

03-10-1999 and she continued to work as Lecturer in the School of Medical

Education till 05-02-2001. She was thereafter appointed as Assistant

Professor in Nursing for the period between 06-02-2001 and 11-10-2004 as

Associate Professor in Nursing between 04-10-2004 and 11-04-2005. and as

Professor in Nursing between 12-04-2005 and 20-01-2011. Thereafter with

effect from 21-01-2011, she was appointed as Assistant Professor in the

School of Behavioural Sciences, which is a department of the Mahatma

Gandhi University duly recognized under the University Statutes.

3. The issue that arose in the writ petition was with regard to the

entitlement of the petitioner to reckon her service in the School of Medical

Education between 03-10-1998 and 21-02-2011 for the purpose of the

Career Advancement Scheme envisaged under the UGC Regulations

referred above. The relevant clause of the UGC Regulations reads as

follows:

"10.1. Previous regular service, whether national or international, as Assistant Professor, Associate Professor or Professor or equivalent in a University, College, National Laboratories or other scientific/professional Organizations such as the CSIR, ICAR, DRDO, UGC, ICSSR, ICHR, ICMR, DBT, etc., should be counted for direct recruitment and promotion under CAS of a teacher as Assistant Professor, Associate Professor, Professor or any other nomenclature these posts are described as per Appendix III-Table No.II provided that:

(a) The essential qualifications of the post held were not lower than the qualifications prescribed by the UGC for Assistant Professor, Associate Professor and Professor as the case may be.

(b) The post is/was in an equivalent grade or of the pre-revised scale of pay as the post of Assistant Professor (Lecturer) Associate Professor (Reader) and Professor.

(c) The candidate for direct recruitment has applied through proper channel only.

(d) The concerned Assistant Professor, Associate Professor and Professor should possess the same minimum qualifications as prescribed by the UGC for appointment to the post of Assistant Professor, Associate Professor and Professor, as the case may be.

(e) The post was filled in accordance with the prescribed selection procedure as laid down in the Regulations of University/State Government/Central Government/ Concerned Institutions, for such appointments.

(f) The previous appointment was not as guest lecturer for any duration, or an ad hoc or in a leave vacancy of less than one year duration. Ad hoc or temporary service of more than one WP(C).No. 13265 of 2018 3 year duration can be counted provided that:

(i) the period of service was of more than one year duration;

(ii) the incumbent was appointed on the recommendation of duly constituted Selection Committee; and

(iii) the incumbent was selected to the permanent post in continuation to the ad hoc or temporary service, without any break.

(g) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (private/local body/Government), was considered for counting past services under this clause."

4. The petitioner's request for extension of the benefits of the

Career Advancement Scheme to her was originally considered favourably

by the University and by order dated 06-12-2013 the Syndicate of the

University decided to grant her the benefits of promotion, pay fixation etc

by reckoning her service in the School of Medical Education for the said

purpose. Thereafter, by a separate order dated 17-02-2018 the Vice-

Chancellor, by exercising his powers under Section 10 (17) under Chapter

III of Mahatma Gandhi University Act, 1985 accepted the recommendation

of the Syndicate Staff Sub Committee and revoked the earlier resolution of

the Syndicate that had granted to Smt. Rincymol Mathew the benefits of

the Career Advancement Scheme. In the said order, the reason stated for

revocation of the earlier Syndicate decision and the denial of the benefits of

Career Advancement Scheme to Smt. Rincymol Mathew is that her initial

appointment as Lecturer in the School of Medical Education was not to a

post that was duly sanctioned in terms of the Mahatma Gandhi University

Statutes.

5. The learned Single Judge who considered the challenge to the

aforesaid order of the Vice-Chancellor found that as per clause 10.1 of the

UGC Regulations aforementioned, in the absence of any dispute by the

University as regards Smt. Rincymol's qualification, the selection procedure

that resulted in her selection as Lecturer in the School of Medical

Education, or her continuance in service in the said School, the mere fact

that the post of Lecturer in the School of Medical Education was not a post,

to which the provisions of Chapter III of the Mahatma Gandhi University

Statutes, 1997 applied, would not enable the University to deny the benefits

of the CAS Scheme to Smt. Rincymol Mathew. Accordingly the writ petition

was allowed by quashing the order dated 17-03-2018 of the Vice-Chancellor

and directing the University to count the past service of Smt. Rincymol

Mathew in the School of Medical Education in accordance with the UGC

Regulations, and to disburse to her the benefits within a period of one

month from the date of receipt of the judgment.

6. Before us, it is the contention of Sri. Surin George Ipe, the

learned Standing Counsel for the Mahatma Gandhi University that the

learned Single Judge ought to have found that the provisions of Chapter III

of the Mahatma Gandhi University Statutes, 1997 clearly contemplated a

selection procedure in the manner delineated in Statutes 3 & 4 of Chapter

III of the Mahatma Gandhi University Statutes, 1997. It is argued that in as

much as the said procedure was not followed while appointing Smt.

Rincymol Mathew as a Lecturer in the School of Medical Education, the

provisions of Statute 10.1 (e) of Chapter III, were not satisfied in the instant

case. It is his further contention that the condition that required the post in

question to be of an equivalent grade or of the pre-revised scale of pay as

the post of Assistant Professor (Lecturer), Associate Professor (Reader) and

Professor had also not been satisfied in the said case. Per contra, the

learned counsel for the writ petitioner Sri. G. Sreekumar would point out

that insofar as the School of Medical Education was not a

Department/Institution to which the provisions of the Mahatma Gandhi

University Statutes, 1997 stood attracted, the requirement as regards

following a prescribed selection procedure had to be seen simply as

referring to valid procedure authorised by the statute that governs the

functioning of the University. It is pointed out that the procedure prescribed

for selection of the Lecturers to the School of Medical Education was one

that was prescribed pursuant to the powers conferred on the Syndicate

under the Mahatma Gandhi University Statutes and when so viewed the

requirement of having filled the post through a valid selection procedure

had to be seen complied in the case of Smt. Rincymol Mathew. He would

also refer to Ext.P16 representation that was submitted by Smt. Rincymol

wherein the qualification possessed by the said person is indicated and the

same would would unambiguously reveal that she possessed the necessary

qualifications specified in the University notification dated 05-02-1997

(Annexure R1 (a)) that invited applications for the post of Lecturer in the

School of Medical Education. The aforesaid facts according to the learned

counsel ought to be sufficient to establish the entitlement of Smt. Rincymol

Mathew to the benefits of the CAS Scheme in terms of the UGC Regulations

aforementioned.

7. On a consideration of the rival submissions, we are of the view

that in as much as that there is no dispute with regard to the qualification

possessed by Smt. Rincymol Mathew or with regard to the fact that she was

duly selected pursuant to a selection procedure that was authorised by the

Vice-Chancellor, to a post that was created by the Director, School of

Medical Education in exercise of the powers conferred on him by the

Mahatma Gandhi University Statutes, 1997, the mere fact that the said

selection procedure differed from the procedure contemplated in Statutes 3

& 4 under Chapter III of the Mahatma Gandhi University Statutes, 1997,

cannot be a reason for denying the benefits of the CAS to Smt. Rincymol

Mathew. Clause 10.1 of the UGC Regulations extracted above does not

expressly require so. We are therefore in complete agreement with the

findings of the learned Single Judge in the judgment impugned in the writ

appeal, and see no reason to interfere with the same in any manner. We

might only add that a Division Bench of this court in its judgment dated 10-

07-2019 in WA No.678/2018 has taken a similar view, and the said judgment

has since attained finality consequent to the dismissal of the Special Leave

Petition filed by the State Government against the said judgment.

The writ appeal fails and is accordingly dismissed. The appellant

University shall pass consequential orders as directed by the learned Single

Judge within an outer time limit of 2 months from the date of receipt of a

copy of this judgment.

(Sd/-) A.K. JAYASANKARAN NAMBIAR JUDGE

(Sd/-) GOPINATH P.

JUDGE AMG