Dinesh Kumar V.P. v. Union of India and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR MONDAY, THE 17TH DAY OF JUNE 2019 / 27TH JYAISHTA, 1941 ## WP(C).No.10643 of 2019 ## PETITIONER: DINESH KUMAR V.P., AGED 46 YEARS, SON OF LATE RAMAN T.V., UTHRAM, ERIKULAM, P.O.ERIKULAM, NILESHWAR VIA, KASARAGOD DISTRICT-671 314. BY ADVS. SRI.K.RAMAKUMAR (SR.) SMT.R.S.ASWINI SANKAR SRI.G.RENJITH SRI.S.M.PRASANTH SRI.T.H.ARAVIND SRI.T.RAMPRASAD UNNI ## RESPONDENTS: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HUMAN RESOURCES DEVELOPMENT DEPARTMENT, SHASTRI BHAVAN, (2) JEEVAN DEEP BUILDING, PARLIAMENT STREET, WEST BLOCK-1, R.K.PURAM, NEW DELHI-110 001. - 2 THE CHAIRMAN, UNIVERSITY GRANTS COMMISSION, BAHADUR SHA ZAFAR MARG, NEW DELHI-110 002. - 3 THE CENTRAL UNIVERSITY OF KERALA, TEJESWINI HILLS, PERIYE P.O., KASARAGOD -671 316, REPRESENTED BY ITS REGISTRAR. - 4 DR.G.GOPAKUMAR, VICE CHANCELLOR, CENTRAL UNIVERSITY OF KERALA, TEJESWINI HILLS, PERIYE P.O., KASARAGOD -671 316. - 5 DR. (PROF) K.JAYAPRASAD, PRO-VICE CHANCELLOR, CENTRAL UNIVERSITY OF KERALA, TEJESWINI HILLS, PERIYE P.O., KASARAGOD -671 316. W.P.(C)No.10643 of 2019 : 2 : 6 STATE OF KERALA, REPRESENTED BY THE SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADVS. SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.S.KRISHNAMOORTHY, CGC SRI.V.SAJITH KUMAR, SC, CENTRAL UNIVERSITY OF KERALA SRI.SURIN GEORGE IPE, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.10643 of 2019 : 3 : ## **JUDGMENT** ## **Hrishikesh Roy, C.J.** Heard Sri.K.Ramakumar, the learned Senior Counsel appearing for the petitioner. Also heard Sri.V.Sajith Kumar, the learned Standing Counsel representing the Central University of Kerala. The learned Government Pleader Sri.Surin George Ipe appears for the 6[th] respondent. 2. The petitioner is serving as a teacher in the Government Higher Secondary School, Madikai in Kasaragod district and claiming to be a public spirited citizen, he has filed this Writ Petition seeking a writ of quo warranto, against Dr.K.Jayaprasad (respondent No.5), who is serving as the Pro-Vice Chancellor in the Central Universality of Kerala. The petitioner contends that the 5[th] respondent did not have the qualification for being appointed as Professor under the UGC Regulation and therefore, his appointment, initially as Associate Professor and then as Professor and thereafter as the Pro-Vice Chancellor of the University, should be interfered by the court. The petitioner seeks direction to remove the 5[th] respondent from his post. 3. On the other hand, Sri.V.Sajith Kumar, the learned Standing Counsel for the University would produce the judgment dated 16.7.2018 in the Writ Petition (C) No.16075 of 2018 whereby, this court had rejected a similar challenge made against the appointment of Dr.K.Jayaprasad. In the earlier case also, the contention was that the 5[th] respondent did not satisfy the eligibility criteria for appointment to the post of Associate Professor to which he was appointed on 11.11.2015. 4. In the previous challenge, the maintainability of the PIL on the eligibility of the 5[th] respondent was answered as under: W.P.(C)No.10643 of 2019 : 4 : “ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. When the question of maintainability of a PIL in respect of the eligibility of the 5th respondent to hold the post of Professor, was raised, the learned Senior Counsel has referred to Hari Bansh Lal v. Sahodar Prasad Mahto and Others [(2010) 9 Supreme Court Cases 655], Premkumar T.R. v. Mahatma Gandhi University and Others [I.L.R 2018 (1) Kerala 993] and Rajesh Awasthi v. Nand Lal Jaiswal and Others [(2013) 1 Supreme Court Cases 501] to argue that the challenge to the qualification of a person to hold a public office need not necessarily be maintained by an aggrieved party, and a stranger to the post can also maintain a legitimate challenge in court. The Senior counsel submits that the only responsibility cast on the challenger is to demonstrate that the person so appointed, was holding the post in breach of the Rules, and that he is continuing in office without satisfying the eligibility criteria. 4. In the above context, it is necessary for the court to bear in mind that the deficiencies pointed out in respect of the 5th respondent, relate to his appointment in the feeder cadre of Associate Professor and in that post he was appointed much earlier on 11.11.2015. Since then, the incumbent has been promoted as Professor and we are now informed that the 5th respondent is currently serving as the Pro-Vice Chancellor of the University. 5. While the judgments relied upon by the learned Senior counsel make it clear that the writ of quo warranto can be invoked by a person to project that the holder of a public office is occupying the post without any legal authority and the issue of locus standi is answered in favour of the petitioner, we are confronted with a situation where the concerned person, who was earlier appointed as Associate Professor, has moved on to the higher post of Professor and now he is occupying the still higher position of Pro-Vice Chancellor. 6. If the petitioner's challenge relating the ineligibility of the 5th respondent to the post of Associate Professor is to be answered by the court, the challenge in our view should have been made at the relevant time when he was holding the post of Associate Professor. But unfortunately, the present challenge by way of PIL has been filed after three and half years. 7. We must indicate here that the delay we are referring to is with regard to the absence of challenge, when the 5th respondent was holding the post of Associate Professor, and in the context of a belated challenge when he is already promoted to the higher post of Professor. Under such circumstances, the writ of quo warranto, when the incumbent in question has moved on to a higher post, cannot in our view is maintainable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .” W.P.(C)No.10643 of 2019 : 5 : 5. The above judgment was challenged by the Writ Petitioner Dinesh Kumar.V.P. through the SLP 26438/18 but the said SLP was dismissed as withdrawn on 12.10.2018, by the Supreme Court. 6. Despite being aware about the rejection of the earlier challenge against the appointment of the 5[th] respondent, this 2[nd] Public Interest Litigation is filed by another person i.e. Dinesh Kumar.V.P. Arguing for the petitioner, the learned Senior Counsel Sri.K.Ramakumar submits that earlier the W.P.(C)No.16075/18 was rejected on account of absence of proper pleadings and delay, but not on merit. Therefore, the second PIL seeking the same relief, is maintainable. In support of his contention, the counsel places reliance on Dr.Kashinath G. Jalmi and another v. The Speaker and others reported in (1993) 2 SCC 703 where, the Supreme Court held that technicality should not stand in the way of the court to look into issues of public interest. 7. In the above context, it is relevant to note that the present petitioner has questioned the eligibility of the 5[th] respondent for the first time, through his representation dated 7.3.2019 (Ext.P20). No earlier challenge to the appointment of the 5[th] respondent was made at a stage, when he was appointed in the lower post of Associate Professor on 11.11.2015 and subsequently, when he was promoted to the post of Professor. In the absence of any challenge to his appointment as Associate Professor and thereafter as Professor, it has to be assumed that the 5[th] respondent was legally appointed to those posts. That apart, in the earlier judgment dated 16.7.2018 in the Writ Petition No.16075 of 2018 filed by Gokul I, it was held against the petitioner therein that this was a belated challenge. It is also not the case of the Writ Petitioner W.P.(C)No.10643 of 2019 : 6 : that given the tenure of the 5[th] respondent as Associate Professor and as Professor, his current posting as the Pro-Vice Chancellor, is not in accordance with the norms. 8. In the above view and particularly, in the absence of any interference by the Supreme Court with this court's previous judgment in the Writ Petition No.16075/18, in respect of a similar challenge, we feel that the ratio of Dr.Kashinath G. Jalmi (supra) would not come to the aid of the petitioner. As earlier noted, the petitioner has filed the representation only on 7.3.2019 whereas the 5[th] respondent was appointed in the year 2015 as Associate Professor. 9. Therefore a second case with similar pleadings on the same cause of action is not entertained. The Writ Petition is accordingly dismissed. sd/- **HRISHIKESH ROY CHIEF JUSTICE** sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** jes W.P.(C)No.10643 of 2019 : 7 : ## APPENDIX ## PETITIONER'S EXHIBITS **:** - EXHIBIT P1 TRUE COPY OF NOTIFICATION NO.CUK/R/T-1/2012 (1/13) DATED 18.02.2013 ISSUED BY R3 UNIVERSITY. - EXHIBIT P1 A TRUE COPY OF NOTIFICATION NO.CUK/R/T-1/2012 (NO.2/13) DATED 18.02.2013 ISSUED BY R3 UNIVERSITY. - EXHIBIT P2 TRUE COPY OF EMPLOYEMENT RE-NOTIFICATION (NO.RE-4/2015) DATED 13.02.2015 ISSUED BY R3 UNIVERSITY. - EXHIBIT P3 TRUE COPY OF ORDER NO.CUK/ADMN./2011 DATED 05.1.2015 ISSUED BY R3 UNIVERSITY. - EXHIBIT P4 TRUE COPY OF ORDER NO.CUK/R/T&NT/2014/VOL-II DATED 09.11.2015 ISSUED BY R3 UNIVERSITY. - EXHIBIT P5 TRUE COPY OF LIST OF CANDIDATES CALLED FOR INTERVIEW DATED 21.09.2015 ISSUED BY R3 UNIVERSITY. - EXHIBIT P6 TRUE COPY OF APPLICANT SUMMARY SHEET OF THE 5TH RESPONDENT. - EXHIBIT P7 TRUE COPY OF UGC REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS ISSUED BY THE UGC IN THE YEAR 2010. - EXHIBIT P8 TRUE COPY OF MINUTE OF THE SIXTH MEETING OF THE SECOND EXECUTIVE COUNCIL OF R3 UNIVERSITY HELD ON 25.06.2014. - EXHIBIT P9 TRUE COPY OF INSPECTION REPORT ON THE LOCAL AUDIT OF ACCOUNTS AND REGISTERS OF R3 UNIVERSITY FOR THE PERIOD FROM 01.04.2017 TO 31.03.2018. - EXHIBIT P10 TRUE COPY OF UGC REGULATIONS ON MINIMUM QUALIFICATIONS FOR APPOINTMENT OF TEACHERS AND OTHER ACADEMIC STAFF ISSUED BY THE UGC. - EXHIBIT P11 TRUE COPY OF COMMUNICATION ISSUED BY THE CENTRAL UNIVERSITY OF HYDERABAD IN RESPECT OF THE NAMES OF CANDIDATES, WHOSE NAMES HAVE BEEN REJECTED FOR THE POSITION OF ASSOCIATE PROFESSOR. - EXHIBIT P12 TRUE COPY OF COMMUNICATION DATED 03.04.2018/04.04.2018 ISSUED BY THE CENTRAL UNIVERSITY OF JAMMU. - EXHIBIT P13 TRUE COPY OF COMMUNICATION DATED 25.04.2017 ISSUED BY THE UNIVERSITY OF TAMIL NADU. W.P.(C)No.10643 of 2019 : 8 : EXHIBIT P14 TRUE COPY OF ORDER DATED 24.05.2017 ISSUED BY R3 UNIVERSITY. - EXHIBIT P15 TRUE COPY OF MINUTES OF THE EXECUTIVE COUNCIL OF R3 UNIVERSITY HELD ON 27.4.2017 WITH RELEVANT DETAILS. - EXHIBIT P16 TRUE COPY OF INSPECTION REPORT ON THE LOCAL AUDIT OF THE ACCOUNTS AND REGISTERS OF THE CENTRAL UNIVERSITY OF KERALA, KASARGOD. - EXHIBIT P17 TRUE COPY OF ORDER DATED 11.10.2018 ISSUED BY THE GOVERNMENT OF KERALA TO THE DIRECTOR OF COLLEGIATE EDUCATION. - EXHIBIT P18 TRUE COPY OF ORDER DATED 28.06.2018 ISSUED BY R3 UNIVERSITY. - EXHIBIT P19 TRUE EXTRACT OF STATUTES ISSUED BY R3 UNIVERSITY WITH RELEVANT DETAILS. - EXHIBIT P20 TRUE COPY OF REPRESENTATION DATED 07.03.2019 SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE PRESIDENT, PRIME MINISTER OF INDIA ETC. - EXHIBIT P21 TRUE COPY OF APPLICANT SUMMARY SHEET - ASSOCIATE PROFESSOR BY R3 UNIVERSITY. // TRUE COPY // P.S. TO JUDGE