Kerala High Court

Secretary vs Mahatma Gandhi University on 14 July, 2022

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     THURSDAY, THE 14TH DAY OF JULY 2022 / 23RD ASHADHA, 1944
                       WP(C) NO. 16076 OF 2022
PETITIONER:

          DR. S. GOPALAKRISHNA PILLAI, AGED 53 YEARS,
          S/O. E. SANKARA PILLAI, NANTHYATH BHAVAN, IRA 72(A),
          INCHIPPULLUVILA, PAPPANAMCODE,
          THIRUVANANTHAPURAM - 695 018 (WORKING AS PRINCIPAL-IN-
          CHARGE, PRNSS COLLEGE, MATTANNUR, KANNUR).

          BY ADV M.S.RADHAKRISHNAN NAIR


RESPONDENTS:

    1     KANNUR UNIVERSITY, REPRESENTED BY REGISTRAR, KANNUR
          UNIVERSITY, CAMPUS P.O., KANNUR - 670 002.

    2     THE VICE CHANCELLOR, KANNUR UNIVERSITY,
          KANNUR UNIVERSITY COMPUS P.O., KANNUR - 670 002.

    3     N.S.S. COLLEGE CENTRAL COMMITTEE,
          REPRESENTED BY ITS SECRETARY, N.S.S. HEAD OFFICE,
          CHANGANASSERY - 686 502.

    4     DR. RAJESH. R., PRINCIPAL, N.S.S. COLELGE, OTTAPPALAM,
          PALAKKAD DISTRICT, PIN - 679 502.

    5     DR. JYOTHILAKSHMI P., PRINCIPAL, NSS COLLEGE, NENMARA,
          PALAKKAD DISTRICT, PIN - 678 508.

          BY ADVS.I.V.PRAMOD
          R.T.PRADEEP
          A.T.ANILKUMAR
          M.BINDUDAS
          K.C.HARISH
          V.SHYLAJA
          SRI.JOSHY THANIKAMATTAM-GP;
          SRI SURIN GEORGE IPE-SC

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.07.2022, ALONG WITH WP(C).9253/2021, 20817/2022, THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16076 OF 2022 & Con.Cases
                                2




          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
 THURSDAY, THE 14TH DAY OF JULY 2022 / 23RD ASHADHA, 1944
                    WP(C) NO. 9253 OF 2021
PETITIONER:

          SECRETARY, NSS COLLEGE CENTRAL COMMITTEE,
          NSS HEAD OFFICE, PERUNNAI P.O, CHANGANACHERRY,
          KOTTAYAM DISTRICT-686 102.

          BY ADVS.R.T.PRADEEP
          SRI.V.VIJULAL
          SMT.M.BINDUDAS
          SRI.K.C.HARISH


RESPONDENTS:

    1     MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS
          REGISTRAR, PRIYADARSINI HILLS POST, UNIVERSITY
          CAMPUS ROAD, ATHIRAMPUZHA, KOTTAYAM-686 560.

    2     REGISTRAR, MAHATMA GANDHI UNIVERSITY,
          PRIYADARSINI HILLS POST, UNIVERSITY CAMPUS ROAD,
          ATHIRAMPUZHA, KOTTAYAM-686 560.

    3     PRINCIPAL SECRETARY,
          HIGHER EDUCATION DEPARTMENT, GOVERNMENT
          SECRETARIAT, THIRUVANANTHAPURAM-695 001.

          BY ADVS.SHRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY
          SHRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY
          SRI.JOSHY THANIKAMATTAM-GP;

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.07.2022, ALONG WITH WP(C).16076/2022 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16076 OF 2022 & Con.Cases
                                3




          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
    THURSDAY, THE 14TH DAY OF JULY 2022 / 23RD ASHADHA, 1944
                    WP(C) NO. 20817 OF 2022
PETITIONER:

          SECRETARY, NSS COLLEGE CENTRAL COMMITTEE,
          NSS HEAD OFFICE, PERUNNAI.P.O., CHANGANACHERRY,
          KOTTAYAM DISTRICT - 686 102.

          BY ADVS.R.T.PRADEEP
          M.BINDUDAS
          K.C.HARISH


RESPONDENTS:

    1     KANNUR UNIVERSITY,
          REPRESENTED BY ITS REGISTRAR, MORAZHA KANNAPURAM
          ROAD, MANGATTUPARAMBA, KANNUR, PIN 670567.

    2     REGISTRAR, KANNUR UNIVERSITY, MORAZHA KANNAPURAM
          ROAD, MANGATTUPARAMBA, KANNUR, PIN 670567.

    3     VICE CHANCELLOR, KANNUR UNIVERSITY, MORAZHA
          KANNAPURAM ROAD, MANGATTUPARAMBA, KANNUR,
          PIN 670567.

    4     DR. S.GOPALAKRISHNA PILLAI, PRINCIPAL, PAZHASSIRAJA
          NSS COLLEGE, MATTANNUR,                        KANNUR
          - 670702.

          BY ADVS.I.V.PRAMOD
          M.S.RADHAKRISHNAN NAIR

      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.07.2022, ALONG WITH WP(C).16076/2022 AND CONNECTED CASES, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16076 OF 2022 & Con.Cases
                                  4



                                                            C.R.
                           JUDGMENT

[WP(C) Nos.16076/2022, 9253/2021, 20817/2022]

Among the three Writ Petitions above,

WP(C)Nos.9253/2021 and 20817/2022 have been filed

by the Secretary of NSS College Central Committee

- which is stated to be a Corporate Management,

with several colleges under them, including 'PR

NSS College', Kannur; while, WP(C)No.16076/2022

has been filed by Dr.S.Gopalakrishna Pillai,

asserting that he is fully eligible to be promoted

as the Principal of the aforementioned college,

consequent to the evaluation of his credentials by

its management, through a screening process.

2. The controversy in these cases has two

layers:

a) Whether Mahatma Gandhi University was

justified in amending their Statutes, stipulating WP(C) NO. 16076 OF 2022 & Con.Cases

managements to select candidates for the purpose

of promotion only after evaluation by a committee

constituted in terms of the University Grants

Commission (UGC) Regulations, 2018; and

b) Whether the order of the Kannur

University, refusing to grant approval to the

appointment of Dr.S.Gopalakrishna Pillai as the

Principal of PR NSS College, solely on the ground

that he was not assessed by a committee

constituted as per the "UGC Regulations 2018", is

justifiable.

3. Sri.R.T.Pradeep - learned counsel

appearing for the Corporate Management in two of

the afore cases, submitted that the action of the

Kannur University in refusing to approve the

selection of Dr.Gopalakrishna Pillai as the

Principal of the College and the amendments

brought in by the Mahatma Gandhi University to

their Statutes, requiring even promotions to be WP(C) NO. 16076 OF 2022 & Con.Cases

assessed as per "UGC Regulations 2018", are

illegal and unlawful. He argued that, in fact,

when his clients had made selection from the

existing teachers for the purpose of promotion to

the post of Principal, it had been interdicted by

this Court through judgment in WP(C)No.35765/2018

- a copy of which has been produced on record as

Ext.P3 in WP(C)No.9253/2021 - holding

affirmatively that promotions can be offered only

as per the applicable University Regulations,

which is to mean, on the principle of 'seniority

cum fitness'.

4. Sri.R.T.Pradeep argued that, therefore,

the present stand of the Kannur University, in

refusing approval to the appointment of

Dr.S.Gopalakrishna Pillai, which has been done by

his client on the aforesaid principle; as also the

amendments sought to be made by the M.G.University

to their Statutes to bring in competition even in WP(C) NO. 16076 OF 2022 & Con.Cases

the case of promotions, are illegal and unlawful

and contrary to the declarations by this Court. He

thus prayed that W.P.(C)Nos.9253/2021 and

20817/2022 be allowed and the University be

directed to approve the appointment of

Dr.S.Gopalakrishna Pillai.

5. Sri.M.S.Radhakrishnan Nair - learned

counsel appearing for Dr.S.Gopalakrishna Pillai

made similar arguments as Sri.R.T.Pradeep, but

conceded that an evaluation of the minimum merit

of every candidate will have to be made before a

promotion to the post of Principal is effected. He

submitted that, therefore, his client has no

objection if a particular Committee is asked to

evaluate all the candidates in this regard;

however, adding that the principle of 'seniority

cum fitness' cannot be upset in any manner,

whatsoever. He concluded his submissions

contending that the Corporate Management had, in WP(C) NO. 16076 OF 2022 & Con.Cases

fact, evaluated his client's merit to find that he

has no disqualification and has all the necessary

credentials for being appointed as the Principal

and thus issued the Appointment Order, since he

was the senior most among all the candidates. He

thus prayed that W.P.(C)No.16076/2022 be allowed

and the orders impugned therein, namely Exts.P3 P5

and P16, be set aside.

6. Sri.I.V.Pramod - learned Standing Counsel

for the Kannur University, controverted the afore

submissions, saying that his client is only

interested to ensure that the best among the

talented is selected and appointed as the

Principal of the College. He explained that

University has refused to grant concurrence to the

appointment of Dr.S.Gopalakrishna Pillai not

because they had any doubts regarding his

credentials or qualification, but because the

screening done by the Corporate Management was not WP(C) NO. 16076 OF 2022 & Con.Cases

in accordance with the "UGC Regulations 2018". He

explained that under the said Regulations, only a

Committee, as constituted thereunder, could have

conducted evaluation of the candidates; but

conceded that appointment will finally have to be

made on the principle of 'seniority cum fitness.

7. Sri.Surin George Ipe - learned Standing

Counsel for the M.G. University, supported the

amendments made to the Statutes of his client,

saying that, as rightly argued by Sri.I.V.Pramod,

though the principle of 'seniority cum fitness'

will have to be followed in the case of promotions

to the post of Principal, evaluation of minimum

merit cannot be done by the Corporate Management

or by persons of their choice, but by the

Committee constituted as per the "UGC Regulations

2018" under the specific criteria therein,

including the API Scores. He argued that, in such

perspective, the writ petitions filed by the WP(C) NO. 16076 OF 2022 & Con.Cases

Corporate Management are untenable and

unnecessary.

8. When I evaluate the afore submissions, I

must say that I find substantial force in the

contentions of both Sri.I.V.Pramod and Sri.Surin

George Ipe, because there is no contest that

promotions to the post of Principal of any College

under the Corporate Management will have to be

done scrupulously on the principle of 'seniority

cum fitness'. This concept has already been well

defined by this Court and by the Hon'ble Supreme

Court, to the effect that two candidates cannot be

evaluated for inter se merit, but that it should

be confined to whether any of them are

disqualified or without the minimum qualification;

subsequent to which, their promotion will have to

take place strictly in - the order of their inter

se seniority. Therefore, at least for the purpose

of assessing the minimum merit of the candidates WP(C) NO. 16076 OF 2022 & Con.Cases

and the presence of any vitiating circumstances,

including disqualification, every such candidate

will have to be evaluated by a Committee.

9. Axiomatically, the only surviving question

is what is the nature of the aforesaid Committee.

10. Both the Kannur University and the

M.G.University say that, since the "UGC

Regulations 2018", postulates a particular

Committee under it, the Corporate Management must

follow it for the purpose of even evaluating the

candidates under the principle of 'seniority cum

fitness' and for consequent promotion to the post

of Principal. I cannot find error in this

reasoning, because the Committee - as stipulated

in the "UGC Regulations 2018" - is an independent

one, though having nominated members from the side

of the Management also.

11. I cannot, therefore, see any reason for

the Management to be, in any manner, aggrieved, WP(C) NO. 16076 OF 2022 & Con.Cases

particularly when the Chairperson of the afore

said Committee is the President of the Governing

Body of the College or their nominee.

12. In the afore circumstances, I am certain

that the writ petitions filed by "NSS Central

College Committee" cannot find my favour; while,

the one filed by Dr.S.Gopalakrishna Pillai

deserves to be ordered, albeit to a limited

extent.

Resultantly:

(a) W.P.(C)Nos.9253/2021 and 20817/2022 are

dismissed; however, clarifying that, for the

purpose of promotion to the post of Principal,

only the concept of 'seniority cum fitness' can be

followed and applied.

(b) W.P.(C)No.16076/2022 is ordered to the

limited extent of allowing the Corporate

Management to constitute a Committee in terms of

the "UGC Regulations 2018"; and if the petitioner WP(C) NO. 16076 OF 2022 & Con.Cases

is, thereafter, found to satisfy the minimum

required criteria/qualifications, then he will be

allowed to be appointed, reckoning his senior most

position in the Seniority List. The Management

will be free to complete this process at the

earliest; and if the afore directions are complied

with implicitly, the Kannur University will

approve the petitioner's appointment, subject to

all other imperative requirements being satisfied,

without any avoidable delay.

the Corporate Management approaches either of the

Universities for the purpose of constitution of

the Committee as per the "UGC Regulations 2018",

they shall make their nominations without any

delay, so that the processes can be then completed

expeditiously.

After I dictated this part of the judgment,

Sri.Surin George Ipe - learned Standing Counsel WP(C) NO. 16076 OF 2022 & Con.Cases

for the M.G.University, intervened to say that,

while considering the candidates on the principle

of 'seniority cum fitness' and the minimum

qualifications, their API Scores will also have to

be taken into account.

Needless to say, if the applicable Regulations

or Statues of the University and/or the "UGC

Regulations 2018" provide minimum qualification

for the purpose of promotion to the post of

Principal will require an assessment of API also,

then it shall be done by the Selection Committee

in terms of law.

Sd/-

DEVAN RAMACHANDRAN JUDGE RR/akv WP(C) NO. 16076 OF 2022 & Con.Cases

APPENDIX OF WP(C) 9253/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF NOTIFICATION DATED 18.7.2018 OF UNIVERSITY GRANTS COMMISSION BRINGING FOR FORTH U.G.C REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF IN UNIVERSITY AND COLLEGES AND MEASURES FOR THE MAINTENANCE OF STANDARDS IN HIGHER EDUCATION 2018.

EXHIBIT P2 TRUE COPY OF NOTIFICATION DATED 31.2.2019 BY WHICH MAHATMA GANDHI UNIVERSITY STATUTES, 1997.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 21.5.2019 IN W.P.C NO. 35765/2018

EXHIBIT P4 TRUE COPY OF JUDGMENT DATED 27.1.2021 IN WRIT APPEAL NO. 1599/2019 WHICH AROSE FROM W.P.(C) NO. 35765/2018 WP(C) NO. 16076 OF 2022 & Con.Cases

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF SENIORITY LIST OF ASSISTANT PROFESSORS WHO EXPRESSED WILLINGNESS FOR PROMOTION TO THE POST PRINCIPAL.

EXHIBIT P2 TRUE COPY OF ORDER DATED 2.2.2021 BY WHICH 4TH RESPONDENT IS PROMOTED AS PRINCIPAL AND POSTED AT PAZHASSIRAJA N.S.S. COLLEGE, MATTANNUR.

EXHIBIT P3 TRUE COPY OF ORDER DATED 10.2.2021 WHICH THE 4TH RESPONDENT IS APPOINTED AS DRAWING & DISBURSING OFFICER OF PAZHASSIRAJA N.S.S. COLLEGE, MATTANNUR.

EXHIBIT P4 TRUE COPY OF COMMUNICATION DATED 14.5.2021 BY 2ND RESPONDENT INFORMING THE REJECTION OF APPROVAL OF PROMOTION OF 4TH RESPONDENT BY 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF CIRCULAR DATED 9.3.2020 BY KANNUR UNIVERSITY

EXHIBIT P6 TRUE COPY OF PROCEEDINGS OF THE CHANCELLOR DATED 11.4.2022.

EXHIBIT P7 TRUE COPY OF JUDGMENT DATED 21.5.2019 IN W.P. (C) NO.35765/2018 BY THE LEARNED SINGLE JUDGE OF THE HIGH COURT OF KERALA.

EXHIBIT P8 TRUE COPY OF JUDGMENT DATED 27.1.2021 IN W.A. NO.1873/2019 BY THE DIVISION BENCH OF THE HIGH COURT OF KERALA. WP(C) NO. 16076 OF 2022 & Con.Cases

APPENDIX OF WP(C) 16076/2022

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE SENIORITY LIST OF ASSOCIATE PROFESSORS 2020 - 2021 ISSUED BY THE SECRETARY, NSS COLLEGES CENTRAL COMMITTEE.

EXHIBIT P2 TRUE COPY OF THE PROMOTION ORDER NO.

E/674/2021 DATED 2.2.2021 ISSUED BY THE SECRETARY, NSS OLLEGES CENTRAL COMMITTEE.

EXHIBIT P3 TRUE COPY OF THE COMMUNICATION ISSUED BY FIRST RESPONDENT NO.

ACAD/H1/4253/2021 DATED 24.3.2022.

EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THIRD RESPONDENT TO THE 1ST RESPONDENT NO. EL 2008/2021 DATED 7.4.2021.

EXHIBIT P5 TRUE COPY OF THE REPLY GIVEN BY FIRST RESPONDENT TO THE 3RD RESPONDENT NO. ACAD.H1/4253/2021 DATED 14.5.2021.

EXHIBIT P6 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE CHANCELLOR OF THE KNNUR UNVIERSITY.

EXHIBIT P7 TRUE COPY OF THE PROCEEDING OF THE CHANCELLOR, KANNUR UNIVERSITY DATED 11.4.2022.

EXHIBIT P8 TRUE COPY OF THE APPROVAL OF APPOINTMENT AS PRINCIPAL ISSUED TO DR. RAJESH U.O. NO.11241/2021/ADM DATED 6.10.2021 BY UNIVERSITY OF CALICUT. WP(C) NO. 16076 OF 2022 & Con.Cases

EXHIBIT P9 TRUE COPY OF THE APPROVAL APPOINTMENT AS PRINCIPAL ISSUED TO DR.

JYOTHILAKSHMI U.O.NO. 11247/2021/ ADM. ISSUED BY CALICUT UNIVERSITY DATED 6.10.2021.

EXHIBIT P10 TRUE COPY OF THE APPROVAL APPOINTMENT AS PRINCIPAL ISSUED TO DR. M.V. SURESH U.O.NO. 11247/2021/ ADM. ISSUED BY CALICUT UNIVERSITY DATED 6.10.2021.

EXHIBIT P11 TRUE COPY OF LETTER NO. ACAD H1/4253/2021 DATED 4.5.2022 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P12 TRUE COPY OF THE RELEVANT PORTION OF UGC SIXTH PAY REVISION REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF IN UNIVERSITIES.

EXHIBIT P13 TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION OF UNIVERSITY GRANTS COMMISSION, NEW DELHI DATED 18.7.2018.

EXHIBIT P14 TRUE COPY OF JUDGMENT DATED 21.5.2019 IN W.P (C) NO. 35765/2018 PASSED BY THIS HONOURABLE COURT.

EXHIBIT P15 TRUE COPY OF JUDGMENT DATED 27.1.2021 IN W.A. NO. 1599/20919 PASSED BY THIS HONOURABLE COURT.

EXHIBIT P16 TRUE COPY OF CIRCULAR NO. ACAD H2/20773/2019 DATED 9.3.2020 ISSUED BY THE 1ST RESPONDENT.