## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE SMT. JUSTICE P.V.ASHA**
## **MONDAY, THE 19TH DAY OF AUGUST 2019 / 28TH SRAVANA, 1941**
## **WP(C).No.14846 OF 2019(E)**
## **PETITIONER/S:**
**DR.NUSAIFA BEEVI.P AGED 52 YEARS W/O.NISARUDHEEN RAWTHER, ASSOCIATE PROFESSOR AND HEAD OF THE DEPARTMENT, P.G.DEPARTMENT OF BOTANY, IQBAL COLELGE, PERINGAMMALA, RESIDING AT AL-SAFA, MENON NAGAR, PEROORKADA P.O., THIRUVANANTHAPURAM695 005.**
**BY ADVS. SRI.S.MUHAMMED HANEEFF SRI.M.H.ASIF ALI SMT.SHAIMA VAHAB**
## **RESPONDENT/S:**
- **1 THE MANAGER/SECRETARY IQBAL COLLEGE TRUST, DAIVAPPURA P.O., PERINGAMMALA, THIRUVANANTHAPURAM-695 563.**
- **2 UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM695 034.**
- **3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM-691 001.**
- **4 ADDL.R4.DR.U.ABDUL KHALAM, ASSOCIATED PROFESSOR IN COMMERCE, IQBAL COLLEGE, PERINGAMMALA, RESIDING AT HOUSE NO.4, BLUE MOUNT GARDENS, PEROORKADA P.O., THIRUVANANTHAPURAM - 695005. IS IMPLEADED AS ADDITIONAL R4 AS PER ORDER DATED 25.06.2019 IN IA NO. 1/2019 IN WP(C) NO. 14846/2019.**
**R1 BY ADV. SRI.ELVIN PETER P.J. R1 BY ADV. SRI.K.R.GANESH R2 BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA R4 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R4 BY ADV. SMT.N.SANTHA R4 BY ADV. SRI.V.VARGHESE R4 BY ADV. SRI.PETER JOSE CHRISTO**
**R4 BY ADV. SRI.S.A.ANAND R4 BY ADV. SMT.K.N.REMYA R4 BY ADV. SMT.L.ANNAPOORNA R4 BY ADV. SHRI.VISHNU V.K. R4 BY ADV. KUM.ABHIRAMI K. UDAY**
## **OTHER PRESENT:**
**SRI.JESTIN MATHEW ,GP**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.08.2019, THE COURT ON 19.08.2019 DELIVERED THE FOLLOWING:**
## **P.V.ASHA, J.**
**W.P.(C) No.14846 of 2019**
**Dated this the 19[th] day of August, 2019**
## **JUDGMENT**
The selection and appointment of the additional respondent no.4 as Principal of Iqbal College Peringammala is under challenge in this writ petition.
2. The 1[st] respondent Trust which runs the Iqbal
college issued Ext.P2 notification dated 20.03.2019 inviting applications from eligible teachers of the College for appointment to the post of Principal to be made, on the basis of seniority cum fitness. Petitioner who is an Associate Professor in the college submitted her application as she is fully qualified. She commenced her service in the college as a Junior Lecturer in Botany on 01.06.1989. She has got
continuous service from 01.06.1995 onwards on her regular appointment as Lecturer. She is working as Associate Professor since 01.06.2008 and as Head of the Department of the PG Department of Botany from
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01.06.2016 onwards. She acquired M.Phil in the year 2001 and Ph. D in the year 2009. She claimed that she has attended various seminars including national seminars and published various articles; she has attended 4 refresher courses organized by the UGC and that she is a member of various academic bodies. As per Ext.P3 memo dated 14.05.2019, she was asked to appear for an interview before the selection committee on 26.05.2019. In the meanwhile the 1[st] respondent had issued Ext.P4 order on 14.5.2019 in which it was stated that the executive committee of the Iqbal College Trust had constituted a selection committee for the selection of Principal, giving the details of the Chairman, convener and other members of the same. The Writ Petition was filed on 29.05.2019 alleging that the constitution of the selection committee was not in accordance with the provisions contained in Regulation 5.1.6 of the UGC Regulations on Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010
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(hereinafter referred to as `UGC Regulations, 2010'). It is stated that except Retd.Prof.Thajudeen, all others in the committee were members of the Trust. According to petitioner such a committee is constituted, contrary to the UGC Regulations in order to appoint a person of their choice. Petitioner stated that a rank list was yet to be published; but a meeting of the Trust was scheduled to be held on 30.05.2019, in which selection would be finalised and appointment would be made.
3. According to the learned Counsel for the
petitioner a selection committee has to be constituted in accordance with clause 5.1.6 of the UCGC Regulations 2010 is mandatory, in the light of the judgment of the apex court in _**Kalyani Mathivanan V K.V.Jeyaraj and others: (2015)6 SCC 363**_ and the judgment of the Full Bench of this court in _**Radhakrisha Pillai vs. T.D.B : 2016 (2 )KLT 245**_ . Petitioner pointed out that the selection committee in this case did not consist of any experts as provided in the Regulations. There was no nominee of Vice Chancellor. Petitioner challenges
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Ext.P4 order also.
4. The 1[st] respondent filed a counter affidavit
stating that Ext.P4 order was issued on 14.05.2019 publishing the names of the members of the selection committee for filling up the vacancy of Principal in accordance with Section 57(3) of Kerala University Act.
It is stated that Clause 5.16 is applicable only for direct recruitment and for promotion under career advancement promotion and not for promotion in accordance with seniortiy cum fitness. It is stated that the University of Kerala has issued Ext.R1(b) order subsequent to the judgment of the Full Bench in _**Radhakrishnapilla's**_ case. As per Ext.R1(b) order, the UGC Regulations, 2010 shall be applicable for
appointment by direct recruitment whereas appointment
by promotion should be governed by section 57(2) and
(3) of the Kerala University Act. At the same time
academic qualification shall be as prescribed in the UGC regulations. It is stated that Ext.P2 notification was issued for appointment in accordance with Ext.R1(b). It is stated that the selection committee
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was constituted as per Ext.P4 as early as on 14.05.2019 well before the interview which was held on 26.05.2019; Petitioner, who was very well aware of the members of the selection committee challenged Ext P4 order after participating in the selection. She cannot be heard to raise any such contention against the selection committee and is liable to be non-suited on that ground itself. It is stated that Ext R1(c) select list was published in the noticeboard of the college and the 6[th] respondent who is the senior-most and who got more marks than petitioner was appointed on 27.05.2019 as per Ext.R1(e) order and he took charge on the very same day. According to the 1[st] respondent the petitioner filed this Writ Petition only after coming to know about the appointment of the 6[th] respondent.
5. The University has filed a statement stating that the academic council of the respondent University in its meeting held on 05.10.2018 resolved that the condition stipulated in section 57(2) and (3) of the Kerala University Act, 1974 shall be followed in making any appointment of Principals other than by direct
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recruitment subject to the fulfillment of academic qualifications prescribed by the UGC. It is stated that constitution of a selection committee as provided under Regulation 5.1.6 is not necessary for promotion.
6. The 4[th] respondent has filed a counter affidavit with more or less the very same contentions as that of the educational agency. It is stated that he is the senior most Associate Professor ranked above the petitioner in Ext.R4(a) seniority list of teaching staff of the college. He is rank no.1 and petitioner is rank no.3 therein. It is stated that the 4[th] respondent, petitioner and one Dr.K.I.Rezeena who is serial no.7, had applied for the post of Principal pursuant to Ext.P2 notification. It is stated that he is fully qualified with the API score prescribed and he was selected and appointed on being assessed to be fit for appointment and duly qualified. It is stated that the 4[th] respondent is an M.Com Degree holder with Ph.D in Commerce. He is an approved Research Guide with 6 research scholars under him. One of his research
scholar is awarded Ph.D. Another one has submitted Ph.D
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thesis. He is having continuous service from 01.06.1995. He has got 10 publications. He has participated in 4 refresher courses. He is actively associating with curricular and extra curricular activities of the College etc.
7. Heard Sri. Mohamed Haneef, the learned Counsel appearing for the petitioner, M/s.Elwin Peter and V. Varghese, the learned counsel appearing for the college and the 6[th] respondent respectively and the learned Standing Counsel for the University.
8. The question to be considered is whether a selection committee is to be constituted for appointment of Principal in an aided college by promotion from among teachers under that educational agency, as provided in the UGC Regulations. After examining the provisions contained in UGC Regulations 2010 and the subsequent amendments, I have already found in my judgment dated 21.05.2019 in WP(C) No.35765/2018, that there is no provision in the UGC Regulations which provides for a promotion to the post of Principal and that the Regulations only envisage
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direct recruitment or career advancement promotion which is personal (for which a post is not necessary). However in that case there was no dispute with respect to selection committee. It was constituted in accordance with UGC Regulations itself in tune with orders issued by the Calicut university. After analysing the provisions contained in the Kerala University Act, Statutes, etc and following the judgment of the apex court in _**Kalyani Mathivanan's case**_ (supra) **,** the Full Bench of this court in the judgment in _**Radhakrishna Pillai's**_ case (supra), held that the University and affiliated colleges are bound to comply with the UGC Regulations, 2010 irrespective of the fact that the University Act or Statutes are amended or not in tune with the UGC Regulations, when the UGC Regulations are adopted by the State of Kerala w.e.f. 18.09.2010 as per order dated 10.12.2010.
9. The question which came up for consideration before the Full Bench was whether the qualifications prescribed by the UGC were to be followed in the appointment of Principals. The qualification prescribed
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under the UGC Regulations were of higher standards than those prescribed under the University Laws. The Full Bench found that the standard of education in colleges shall not be lesser than what is prescribed under the central legislation by the UGC. The purpose of
constituting UGC itself is for co-ordination and determination of maintenance of standards in institutions of higher education. In that case it was found that the appointment of a person without Ph.D was not entitled to be appointed as Principal in view of the qualifications prescribed in UGC Regulations, 2010.
10. The question to be considered in this case is whether the selection committee is to be constituted as provided in regulation 5.0.0. which reads follows:
_The UGC has evolved the following guidelines on: (a) Constitution of Selection Committees for selection of Asst. Professor, Associate Professor, Professor, Asst. Librarian, Deputy Librarian, Librarian, Asst. Director of Physical Education and Sports, Deputy Director of Physical Education and Sports and Director of Physical Education and Sports; and (b) specified selection procedures for direct recruitment and Career Advancement Schemes Regulations for teachers and other academic staff in universities and colleges._
Even though Regulation 5 does not mention the post
of Principal, Regulation 5.1.6 provides for the
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constitution of the selection committee for the
post of College Principal which reads as follows:
_5.1.6 College Principal_
_(a) The Selection Committee for the post of College Principal shall have the following composition:_
_1. Chairperson of the Governing Body as Chairperson._
_2. Two members of the Governing Body of the college to be nominated by the Chairperson of whom one shall be an expert in academic administration._
_3.One nominee of the Vice Chancellor who shall be a Higher Education expert. In case of Colleges notified/declared as minority educational institutions, one nominee of the Chairperson of the College from out of a panel of five names, preferably from minority communities, recommended by the Vice-Chancellor of the affiliating university of whom one should be a subject expert._
_4.Three experts consisting of the Principal of a college, a Professor and an accomplished educationist not below the rank of a Professor to be nominated by the Governing Body of the college) out of a panel of six experts approved by t relevant statutory body of the university concerned._
_5. An academician representing SC/ST/OBC/Minority/Women/Differently-abled categories, if any of candidates representing these categories is the applicant, to be nominated by the Vice Chancellor, if any of the above members of the selection committee do not belong to that category._
_(b) At least five members, including two experts, should constitute the quorum._
_(c) All the selection procedures of the selection_
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_committee shall be completed on the day of the selection committee meeting itself, wherein, minutes are recorded along with the scoring proforma and recommendation made on the basis of merit with the list of selected and waitlisted candidates/Panel of names in order of merit, duly signed by all members of the selection committee. (d) The term of appointment of the college principal shall be FIVE years with eligibility for reappointment for one more term only after a similar selection committee process._
## 11. Section 57(2) and (3) of the Kerala University
Act read as follows:
_(2) Appointment of Principal shall be made by the educational agency by promotion from among teachers of the College or of all the Colleges as the case may be, or by direct recruitment. (3) Where appointment of Principal is made by promotion, the educational agency shall make the appointment on the basis of seniority cum fitness._
Thus Under section 57(2) and (3) of the Act, the
appointment of Principal is to be made by promotion by educational agency, based on seniority cum fitness. University has issued Ext R2(b) orders without providing for any selection committee and permitting the educational agencies to make appointment on seniority cum fitness basis. The provisions in the University Act do not provide for a selection committee for appointment of Principal, though such a committee is provided in the case of appointment to the post of
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Assistant Professor. Regulation 5.1.6 also envisages an appointment of Principal by direct recruitment and such appointments are to be made for a period of 5 years which can be for another term of 5 years after undergoing the same process of selection. Selection committee as provided in UGC Regulation is necessary for promotion under CAS as well as for direct recruitment, though there is no CAS promotion as Principal. Under the CAS, an Assistant Professor is eligible for placement as Associate Professor and thereafter as Professor on completion of stipulated number of years and on other conditions stipulated therein and such promotions/placements are personal in nature. No sanctioned post is necessary for CAS promotion. However such placements/promotions under CAS can be made only after assessment of the same by a selection committee constituted as per the UGC Regulation.
12. Though it is true that the UGC Regulations do not envisage a promotion to a cadre post and promotion is to be made on seniority cum fitness basis, it is
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pertinent to note the qualifications prescribed for appointment to the post of Principal provided in Regulation 4.20 which reads as follows:
## 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 recognised University. ii. A Ph.D Degree in concerned/allied/relevant disciplines(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._
Even when the appointment is made by the educational agency based on seniority cum fitness as provided in Section 57(2) and (3), the educational agency must be in a position to see whether the applicant is having all the qualifications prescribed in Regulation 4.20. Qualifications prescribed include not only Ph.D Degree but also evidence of published work, research guidance, experience of 15 years of teaching/research/ administration and above all a minimum API score as set out appendix III of the UGC regulations. The promotion
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is to be made from among qualified persons. The qualifications such as the minimum API score is to be assessed in accordance with Appendix III of the UGC Regulations; research experience, research guidance, publications, etc are not those which can be assessed or ascertained by the members of a Trust or those who are at the helm of affairs of the educational agency, normally, as in the case of Post Graduate Degree, Ph.D, etc, which would be evident from the respective certificates issued by the Universities. With respect to the API score, the UGC Regulations provide for the following:
Regulation 6.0.2 reads as follows:
6.0.2 _The Universities shall adopt these Regulations for selection committees and selection procedures through their respective statutory bodies incorporating the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS) at the institutional level for University Departments and their Constituent colleges/ affiliated colleges (Government/Government-aided/Autonomous/ Private Colleges) to be followed transparently in all the selection processes. An indicative PBAS template proforma for direct recruitment and for Career Advancement Schemes (CAS) based on API based PBAS shall also be sent separately by the UGC to the universities. The universities may adopt the template proforma or may devise their own selfassessment cum performance appraisal forms for teachers in strict adherence to the API criteria based PBAS prescribed in these Regulations._
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Regulation 6.0.5 deals with comprehensive list of indexed publications for various disciplines which the University shall draw. These lists shall be provided to the selection committee at the time of assessing the quality of publication of candidates during their appointment/promotions. Regulation 6.0.9 provides for the API scoring system in the process of selection of Principal which shall be similar to that of directly recruited College
Professors which reads as follows:
_“”6.0.9 The Academic Performance Indicator (API) scoring system in the process of selection of Principal shall be similar to that of directly recruited College Professors.xxxxxx””_
Unless there is a body which is having the competence to scrutinize and make sure that the candidates who apply for the post fulfills all these qualifications, it is not normally possible for an educational agency to appoint a Principal who is having all these
qualifications. Therefore it is for the University to provide for a mechanism incorporating suitable provisions in its regulations/orders which will advance
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the intent and purpose behind the UGC Regulations.
13. Though the learned Counsel for the respondents submitted that approval would be given by the University only after verification of qualifications, the normal process of approval is time consuming and when appointments are made based on seniority, there is every chance that a person who gets such appointment at the verge of retirement would complete his tenure or an eligible person who is denied appointment would retire from service by the time orders are issued on approval. In the absence of a maximum age limit or any restrictions on appointment and in the absence of any time limit prescribed or observed for approval, there is no rationale in leaving the burden of assessment of such qualifications on them. Therefore I am of the view that the University has to provide for a mechanism in order to ensure appointment of only qualified candidates as Principals. It is also pertinent to note that the University of Calicut has issued regulations which provides for constitution of selection committee as provided in the UGC regulations. The Kerala
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University, had initially issued orders in 2017, prescribing the very same qualifications as well as constitution of selection committee, as provided in UGC Regulations; but Ext R2(b) order is issued in supercession of that order.
14. However it is seen that there is nothing in the UGC Regulations which provides for a selection committee for appointment by promotion and University Act or Statute does not provide for constitution of a selection committee for a promotion on seniority cum fitness. In that view of the matter, it cannot be said
that the selection and appointment of the 4[th] respondent, made by the educational agency in accordance with Ext R2(b) order issued by the University warrants any interference of this court.
15. Yet another point to be noted is that the 4[th]
respondent was very well aware of the members who were in the selection committee. By Ext.P4 order issued on
14.05.2019 the 1[st] respondent had notified the constitution of the selection committee, giving the names of all the members. Therefore even if the
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contention of the petitioner that the writ petition was filed even before she came to know about the results of the selection, she was aware of the fact that most of the members of the selection committee were members of the Trust and that such constitution was in violation of clause 5.16 of the UGC Regulations. Ext.P4 shows that there were certain retired Registrars and retired Professors in addition to 4 other members without any designations, who are office bearers of the Trust. Though the petitioner claims that she approached this court immediately after interview even before appointment was made, the contention of the respondents is that she filed this writ petition after the rank list was published and appointment was made. According to petitioner the appointment is predated. This court is not in a position to adjudicate whether the appointment is predated or not. At any rate the interview was conducted after about two weeks of the publication of Ext.P4 order. It is an admitted fact that she did not choose to challenge it before participating in the interview. She has also not
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chosen to challenge Ext R2(b) order, though contentions are raised to the effect that selection committee should be in accordance with UGC Regulations. Therefore, as rightly pointed out by the learned counsel for the respondents the petitioner is estopped from challenging the selection in the light of the judgments of the apex court in _**D. Sarojakumari v. R. Helen Thilakom: (2017) 9 SCC 478, Madras Institute of Development Studies v. K. Sivasubramaniyan: 2016(1)SCC 454, Union of India v. S. Vinodh Kumar, (2007) 8 SCC 100**_ **,** etc. and the judgment of this court in _**Ranjith K.K and others V Kannur University: 2012(1)KHC 47.**_
Therefore the petitioner does not deserve any relief. Writ Petition is dismissed, however with the observations in paragraph 12 which the University has to consider seriously.
The Writ Petition is dismissed accordingly.
## **Sd/-**
## **P.V.ASHA**
**JUDGE**
rkc
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**EXHIBIT P1**
**A TRUE COPY OF THE ANNUAL SELFASSESSMENT FOR THE PERFORMANCE BASED APPRAISAL SYSTEM (PBAS) SUBMITTED BY THE PETITIONER DATED 03.04.2019.**
**EXHIBIT P2**
**A TRUE COPY OF THE NOTIFICATION BEARING NO.ICT/IC/013/2019 DATED 20.03.2019.**
**EXHIBIT P3 A TRUE COPY OF THE MEMO BEARING NO.ICTIC/013/2019 DATED 14.05.2019 ISSUED TO THE PETITIONER.**
**EXHIBIT P4 A TRUE COPY OF THE ORDER BEARING NO.ICT/IC/013/2019 DATED 14.05.2019 ISSUED BY THE 1ST RESPONDENT.**
**EXHIBIT P5 A TRUE COPY OF THE RELEVANT EXTRACTS OF THE UGC REGULATIONS 2010.**
## **RESPONDENT'S/S EXHIBITS:**
**EXHIBIT R1(A): TRUE COPY OF THE RELEVANT EXTRACT OF THE UGC REGULATIONS, 2010.**
**EXHIBIT R1(B):**
- **TRUE COPY OF THE ORDER DATED 30/11/18 ISSUED BY THE UNIVERSITY OF KERALA.**
**EXHIBIT R1(C): TRUE COPY OF THE SELECT LIST PUBLISHED BY THE SELECTION COMMITTEE.**
**EXHIBIT R1(D): TRUE COPY OF THE SUMMARY OF THE API SCORE OF DR.ABDUL KALAM.U**
**EXHIBIT R1(E): TRUE COPY OF THE ORDER DATED 27/05/2019 APPOINTING DR.ABDUL KALAM.U AS THE PRINCIPAL OF THE IQBAL COLLEGE.**
EXT.R4A:- TRUE COPY OF THE COMMON SENIORITY LIST OF TEACHING STAFF OF THE COLLEGE AS ON 01.06.2018
EXT.R4B: TRUE COPY OF THE DULY FILLED UP API SCORE SUMMARY OF THE ADDITIONAL 4TH RESPONDENT
EXT.R4C: TRUE COPY OF THE APPOINTMENT ORDER NO.ICT/IC/32/2018 DT.27.05.2019 OF
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EXT.R4D: TRUE COPY OF THE RELEVANT EXTRACT OF THE UGC REGULATIONS, 2010
EXT.R4E: TRUE COPY OF THE UNIVERSITY ORDER NO.AC.FII/GENERAL/UGC-R-2010/2018 DT.30.11.18
EXT.R4F: TRUE COPY OF THE PRESS NOTE NO.PR 111/2019 DT.25.5.19 ISSUED BY THE 2ND RESPONDENT UNIVERSITY
EXT.R4G: TRUE COPY OF THE PH.D THESIS SUBMISSION CERTIFICATE OF SMT.PARVATHY NAND, ISSUED BY THE UNIVERSITY ON 24.05.2019
EXT.R4H: TRUE COPY OF THE APPLICATION DT.3.4.19 SUBMITTED IN PURSUANCE OF EXT.P2
EXT.R4I: TRUE COPY OF THE NAAC ACCREDIATION CERTIFICATE DT.30.11.18