Sheela P.J vs State Of Kerala
2021 Latest Caselaw 14605 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE AMIT RAWAL
         WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                         WP(C) NO. 31556 OF 2015
PETITIONER/S:
           SHEELA P.J
           PAZANILATH HOUSE, CHERANALLOOR, ERNAKULAM DISTRICT.

              BY ADV SRI.P.C.SASIDHARAN



RESPONDENT/S:

     1        STATE OF KERALA
              REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER
              EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.695
              001.

     2        MAHATMA GANDHI UNIVERSITY
              PRIYADARSHINI HILLS, ATHIRAMPUZHA.P.O., KOTTAYAM,
              REPRESENTED BY ITS REGISTRAR. 686 502.

     3        THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION
              OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
              ERNAKULAM.682 001.

     4        THE MANAGER
              ST.PAUL'S COLLEGE, KALAMASSERY, ERNAKULAM.683 503.

              BY ADV SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY


OTHER PRESENT:

              GP SRI B HARISH KUMAR, SRI SURIN GEORGE IYPE SC MG
              UNIVERSITY


     THIS WRIT     PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.07.2021, THE COURT ON 14.7.2021 DELIVERED THE FOLLOWING:
 WP(C) NO. 31556 OF 2015
                                   2




                           JUDGMENT

The question which arises for consideration in present writ

petition is, whether the petitioner can be granted post of Assistant

Professor without insisting the basic qualification of NET or Ph.D

which was not insisted in cases of appointment prior to 14.5.1992.

2. The facts in brief are that the petitioner, with effect from

4.12.1989 to 14.2.1994 as per the order dated 22.3.1990, Ext.P1,

was first appointed as Lecturer under the 4th respondent,

Manager, St.Paul's College, Kalamassery. The aforementioned

appointment was against the leave vacancy of one Lecturer in

Physics. The petitioner was permitted to continue on account of

the extension of the leave by the erstwhile professor with effect

from 15.2.1994 to 31.5.1999 as per order dated 13.3.1995, Ext.P2

and was further permitted to continue as per order Ext.P3.

3. Learned counsel appearing on behalf of the petitioner

submitted that when the approval for extension was forwarded,

University did not grant permission stating that the approval for WP(C) NO. 31556 OF 2015

the period from 1.6.1999 to 31.5.2004 can be taken up only after

fixation of the staff strength of the concerned department. But the

petitioner continued in the college till 19.12.2001 and on

reduction of work load was deployed in Government Higher

Secondary School, Kalamassery. On cessation of the original term

of appointment ,her services discontinued and re-appointed in the

college on 4.6.2012, again, against the leave vacancy, consequent

to the retirement of one Sri.A.V Alex on permanent basis.

4. His re-appointment was in terms of Section 62(2)(b) of the

Mahatma Gandhi University Act, prescribing that a teacher

relieved from a private college on or after 14.3.1974 due to the

abolition of a course of study in that private college or the

cessation of the period for which appointed was made or for any

other reason except disciplinary action, shall be given preference

in the matter of future appointments. The order was forwarded to

the University seeking approval but was not granted on the

ground of awaiting any clarification. Since no decision was taken

on repeated requests, petitioner constrained to approach this

Court vide W.P.(c) No.33847/2014. This Court taking note of the WP(C) NO. 31556 OF 2015

aspect of the matter disposed of the writ petition the 3 rd

respondent, Deputy Director of Collegiate Education was directed

to take a decision on the representation for approval of the

appointment. The 3rd respondent after hearing parties, vide

impugned decision dated 1.9.2015, Ext.P8 rejected the case of the

petitioner; ie, one with reference to the salary to be paid to the

petitioner for the period from 1.6.1999 to 31.5.2001, the period in

which she had worked under the 4 th respondent college as an

unapproved Lecturer and other permanent appointment to the

post on 4.6.2012 of having not possessing UGC qualification or

NET. Once the original appointment of the petitioner even though

against the leave vacancy was approved on 4.12.1989 and

approval continued up to 31.5.1999, the re-appointment of the

petitioner on 1.6.1999 for the reasons best known was not

approved by the University. But the fact of the matter remains that

the petitioner continued in the college as a teacher owing to the

sufficient work load. Even salary was denied and the reason

assigned was that she was appointed in the year 1999, when there

was an order of ban which was only for a period of three years WP(C) NO. 31556 OF 2015

from 3.6.1997. The action of the respondent in not approving the

appointment of the petitioner from 4.6.2012 is without jurisdiction

as her original appointment was duly approved by the respondent.

The amendment in the qualification would not take away the right

of the petitioner to seek permanent employment as she was

appointed before the cut off date of 14.5.1992.

5. On the contrary, learned counsel appearing on behalf of

the Mahatma Gandhi University opposed the aforementioned

contentions on the ground that the relief as sought for cannot be

granted in view of the decision rendered by this Court in State of

Kerala v. Anitha Thomas (2016 (3) KLT 151).

6. Having heard respective counsels, I am of the opinion that

in the cited case the UGC had laid down the qualification in the

regulations 1991 made in exercise of powers conferred under

Section 26(1)(e) of the UGC Act. It was a case where the

Syndicate had granted the exemption of having not attained the

qualification of NET or Ph.D but the Government order issued on

18.5.1994 made it clear that the pass in the NET was mandatory

for all departments as well as 're-appointment' made upto WP(C) NO. 31556 OF 2015

14.5.1992 only. In such circumstances the University would not

have any power or authority to grant exemption from qualification

for approving the appointment. It was further held that there

could not be any exemption for the claim holders from the

mandatory qualifications and the University did not have any

power to dilute the provisions of UGC regulations in granting

exemptions. In this case the petitioner was appointed against the

leave vacancy on 4.12.1989 and then 4.6.2012, her approval was

rejected as she did not possess NET or Ph.D qualification which

was not mandatorily required prior to 14.5.1992. As per the ratio

culled out in paragraph 18 of the judgment extracted herein

below, the re-appointment could not be approved in the absence of

NET or Ph.D qualification.

18.But the eligibility or entitlement of the 1st respondent will not validate the action of the University. It is the Syndicate of the University that took the decision that, pass in the NET and other academic qualifications need not be insisted in the case of teachers appointed before 14.5.1992, irrespective of the date of their re-appointment. As per the Government Order, in order to avail the benefit of exemption from the qualifications prescribed by the UGC, the appointments as well as re-appointments should be before 14.5.1992. At the same time, what the syndicate decided was to exempt all those who got initial appointment before 14.5.1992, irrespective of the date of earlier appointment or the applicability of the newly introduced qualification at the relevant time. On a reading of Ext.P7 Government Order issued on 18.5.1994, it is clear that pass in the NET is mandatory for all WP(C) NO. 31556 OF 2015

appointments as well as re-appointments made upto 14.05.1992 only. As per the counter affidavit filed by the UGC the pass in NET is compulsory for any appointment since the issuance of 1991 Regulations. The University also admits that the qualification is necessary after these regulations are issued. But according to the decision of the syndicate any teacher appointed before 14.5.1992 but re-appointed at any time does not require NET. Neither the counter affidavit nor the resolution or the letter Ext.P8 explains the authority for taking such a decision, but states that the University has not granted any exemption. Thus the University themselves admit that they do not have any authority to grant exemption from qualification. It is one thing to say that, appointments made prior to the coming into force of 1991 Regulations do not require the qualifications prescribed therein and it is entirely different to say that all the re- appointments made after 14.5.1992 also do not require the qualifications, once the appointments were prior to 14.5.1992. There cannot be any exemption for the claim holders also, from these mandatory qualifications. Any claim holder can be re- appointed only if he is having the qualification as on the date of re-appointment. Ext.P7 order does not protect the re- appointments made subsequent to 14.05.1992 just because the initial appointment happened to be in the year 1990 or prior to that. It is pertinent to note that the standard of education in the institutions of higher education is a matter coming within the purview of the Central Government.

No relief as sought for, in view of the observation and the

judgment noticed above, can be granted. Writ petition is

accordingly dismissed.

Sd/-

sab AMIT RAWAL

JUDGE WP(C) NO. 31556 OF 2015

APPENDIX OF WP(C) 31556/2015

PETITIONER ANNEXURE

P1- TRUE COPY OF THE ORDER ISSUED BY THE UNIVERSITY DATED 22.3.1990.

P2- TRUE COPY OF THE UNIVERSITY BY ORDER DATED 13.3.1995.

P3- TRUE COPY OF THE ORDER DATED 1.6.1999 PERMITTING THE PETITIONER TO CONTINUE IN SERVICE.

P4- TRUE COPY OF THE COMMUNICATION ISSUED BY THE UNIVERSITY DATED 7.6.2001.

P5- TRUE COPY OF THE ORDER OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION DATED 20.10.2001.

P6- TRUE COPY OF THE APPOINTMENT ORDER DATED 4.6.2012.

P7- TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER DATED 12.2.2013.

P8- TRUE COPY OF THE ORDER DATED 01.09.2015.

RESPONDENT ANNEXURE

R2 (a) TRUE COPY OF THE NO.AC BII/8243/I/2012 DATED 6.12.2012

R2(b) TRUE COPY OF THE LETTER NO.D5/4232/2013 DATED 18.7.2014 OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM ADDRESSED TO THE MANAGER, ST. PAUL'S COLLEGE, KALAMASSERY