Dr. Rajumon T. Mavunkal v. Mahatma Gandhi University & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **FRIDAY, THE 5TH DAY OF FEBRUARY 2021 / 16TH MAGHA, 1942** ## **WP(C).No.11223 OF 2020(C)** ## **PETITIONER:** **DR.RAJUMON.T.MAVUNKAL, PRINCIPAL, ST.XAVIER'S COLLEGE VAIKOM, KOTHAVARA P.O., KOTTAYAM-686607.** **BY ADVS. SRI.BABY ISSAC ILLICKAL SRI.ISAAC KURUVILLA ILLIKAL** ## **RESPONDENTS:** |**1**|**MAHATMA GANDHI UNIVERSITY,**| |---|---| ||**REPRESENTED BY ITS REGISTRAR,**| ||**PRIYADARSINI HILLS P.O., KOTTAYAM-686560.**| |**2**|**VICE CHANCELLOR,**| ||**MAHATMA GANDHI UNIVERSITY,**| ||**PRIYADARSINI HILLS P.O., KOTTAYAM-686560.**| |**3**|**STATE OF KERALA,**| ||**REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,**| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.**| |**4**|**DR.PADMAKUMAR P.K.,**| ||**SYNDICATE MEMBER, MAHATMA GANDHI UNIVERSITY,**| ||**PRIYADARSINI HILLS P.O., KOTTAYAM-686560.**| |**5**|**DR.C.T.ARAVINDAKUMAR,**| ||**PRO-VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY,**| ||**PRIYADARSINI HILLS P.O., KOTTAYAM-686560.**| |**6**|**DR.PRAKASH KUMAR.B.,**| ||**REGISTRAR, MAHATMA GANDHI UNIVERSITY,**| ||**PRIYADARSINI HILLS P.O., KOTTAYAM-686560.**| |**7**|**MANAGER,ST.XAVIER'S COLLEGE VAIKOM,**| ||**KOTHAVARA P.O., KOTTAYAM-686607.**| **BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY BY SRI.B.HARISH KUMAR, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-01-2021, THE COURT ON 05-02-2021 DELIVERED THE FOLLOWING:** WP(C).No.11223 OF 2020 -2- ## **JUDGMENT** ## **Dated this the 5[th] day of February 2021** Challenge in the present writ petition has been laid to the order, dated 03.03.2020 Ext.P8 passed by the Registrar of the 1[st] respondent Mahatma Gandhi University, rejecting the approval of the appointment of the petitioner to continue as Principal with effect from 01.05.2018. 2. Petitioner was appointed as Lecturer of Physics in the St.Xavier's College, Vaikom (hereinafter referred to as 'the College' for short) an Aided Minority Educational Institution affiliated to the 1[st] respondent, Mahatma Gandhi University (hereinafter referred to as 'MGU Act' for short) on 27.01.1994. Vide Order dated 30.04.2015 Ext.P2, petitioner was appointed as Principal for a period of three years with effect from 30.04.2015 A.N. to 30.04.2018. Vide order dated 25.11.2015 Ext.P3, the 2[nd] respondent accepted the recommendation of the Standing Committee of the WP(C).No.11223 OF 2020 -3- Syndicate on Affiliation (Approval and Promotion) to grant approval for the appointment of the petitioner for the period aforementioned. 3. Learned counsel appearing on behalf of the petitioner submits that the appointment of the petitioner was in a substantive post thus acquired a lien as evident from the relevant pages of Service Book Ext.P4. During his tenure as the Head of the Institution, was responsible for bringing in several accolades and achievements to the college. The College was accredited with 'B' by the NAAC and presently with 'B+'. On expiry of the three year period, the 7[th] respondent, i.e., Manager of the College, passed an order dated 24.04.2018 Ext.P5 extended the appointment as Principal for a further period of four years i.e., from 01.05.2018 to 31.05.2022 (till his retirement). 4. Petitioner was shocked to receive the communication dated 19.09.2018 Ext.P6 issued by the Registrar of the 1[st] respondent University raising objections on the approval of the extension. The first WP(C).No.11223 OF 2020 -4- objection was that the Academic Performance Indicator (hereinafter referred to as 'API' for short) score sheet of the petitioner was not recommended by a Committee as stipulated under the University Grant Commission Regulations, 2010 (on Minimum Qualifications for appointment of Teachers and Other Academic Staff in Universities and Colleges and Other Measures for the Maintenance of Standards in Higher Education) 2010 (hereinafter referred to as 'UGC Regulations, 2010' for short). The second objection raised, was, that the petitioner had included the scores of his UG Project Guidance, which could not be considered for the appointment of Principal and the last objection was that the Regulation 4.2.0(iii) of the UGC Regulations, 2010 stipulates Research Guidance which was wanting. 5. Aggrieved of the same the petitioner preferred W.P.(C) No.21804 of 2019 and this Court vide judgment dated 26.08.2019, directed the 1[st] respondent to place the appointment proposal before the Syndicate for approval. Syndicate was also directed to take note of the WP(C).No.11223 OF 2020 -5- order dated 25.11.2015 (Ext.P3 herein) and take a call within a period of two months from the date of receipt of a copy of the judgment. Syndicate of the University on the basis of the report of the three member Committee consisting of respondent Nos.4 to 6, rejected the approval to the appointment of the petitioner vide impugned order dated 03.03.2020 Ext.P8. It was submitted that the order is not sustainable and untenable inter alia on the following grounds: (i) The impugned order is arbitrary, illegal and unreasonable as it was passed without considering any objections made by the petitioner. No opportunity of hearing has been afforded. In support thereof, the judgment of this Court in W.A.No.1311 of 2019 dated 14.06.2019 ( **Dr.Thara K.Simon V. Mahatma Gandhi University** ) had been relied. (ii) The Syndicate of the 1[st] respondent did not furnish the complete report of the Committee consisting of respondent Nos.4 to 6, nor any explanation as sought by the petitioner. WP(C).No.11223 OF 2020 -6- (iii) The fact that the UGC Regulations, 2010 would be applicable only from 23.02.2016 as per Ext.P9 judgment, clearly specified that there would be no retrospective effect to the UGC Regulations, 2010. Thus, for all intents and purposes, unconditional approval granted to the petitioner could not have been modified by relying upon Regulations, 2010. (iv) Petitioner was mostly engaged in the administrative duties associated to the post of Principal and therefore, there was a considerable decline in his teaching and research activities. (v) The appointment of the petitioner as Principal was unconditional and in a permanent post, acquired a lien on the basis of Rule 16 of the Kerala Service Rules which cannot be terminated in the manner as has been done. (vi) The fixation of three years period in Ext.P2 has no basis in view of the Full Bench decision of this Court in **M.G.University V. John Kuriakose (Dr.) (2015(1) KHC 236).** It was held that there is no WP(C).No.11223 OF 2020 -7- provision in the M.G.University Law for fixing the tenure of appointment of Principals as are deemed to be permanent nature. UGC Regulations, 2010 is applicable to appointment of Principals by direct recruitment and not through promotion. (vii) Ext.P8 is highly discriminatory and violative of Article 14 of the Constitution of India as similarly situated persons have been granted approval to continue as Principal. The subsequent order was only an extension as initial appointment was of permanent nature. 6. Per Contra, Mr.Asok M. Cherian, learned Standing Counsel appearing on behalf of the MG University opposed the aforementioned submissions by submitting that Clause 4.2.2 of UGC Regulations, 2010 do not deal with only the direct recruitment but also promotions which mandates the minimum score as stipulated in API. The appointment order was not till the date of retirement but for three years and its approval by the University could not be construed as WP(C).No.11223 OF 2020 -8- unconditional. Since the appointment vide Ext.P2 was prior to the issuance of Ext.P10 whereby MG University placed the material before the Syndicate Committee. It was decided to apply UGC Regulations, 2010 for direct recruitment of Principals from 23.02.2016 onwards. For appointment through promotion, it was decided to make applicable seniority-cum-fitness principle envisaged under the MGU law, for, only basic eligibility is required as per UGC Regulations 4.2.0. The aforementioned decisions were taken in meeting held on 18.01.2017 and circulated on 01.02.2017. It was on that background API score of the petitioner was not processed before issuing Ext.P3. The appointment of the petitioner by 7[th] respondent with effect from 01.05.2018 to 31.05.2022 vide Ext.P5 was not in conformity with the regulations prescribed by UGC, as adopted by Ext.P10 order. The Division Bench of this Court in Writ Appeal No.1311 of 2019 dated 14.06.2019 held that the Government of Kerala had taken decision to approve and implement the UGC Regulations and that the WP(C).No.11223 OF 2020 -9- Regulations would come into force with effect from 18.09.2010 and all the Universities in the State were directed to incorporate the UGC Regulations in their Statutes and Regulations, within a period of one month. The argument of non applicability of UGC Regulations, 2010 with MG University was rejected. Even this Court in the judgment dated 26.08.2019 in W.P(C) No.21804 of 2019 held that there was no dispute about the qualifications provided in clause 4.2.0 of UGC Regulations. Regulation 5.1.VII(d) of UGC Regulations, 2010, as per the judgment of the Supreme Court was made applicable with effect from 23.02.2016. Argument of the petitioner qua retrospective application of aforementioned Regulations have no legs to stand. Full Bench judgment regarding the appointment of the Principals till the age of superannuation, would not be applicable in this case owing to applicability of UGC Regulations particularly 4.2.0. envisaging certain conditions for holding such posts. 9. I have heard learned counsel for the parties. WP(C).No.11223 OF 2020 -10- 10. On perusal of Ext.P2 there is no dispute on the fact that the appointment of the petitioner as Principal on promotion was for three years from 30.04.2015 A.N. to 30.04.2018. This Court while disposing of W.P.(C) No.21804 of 2019 in the order dated 26.08.2019 noted that the proposal for appointment of the petitioner was not forwarded to Syndicate. Relevant portion of the judgment reads as under: “5. Ext.P10 order issued by the University provides that the appointments by promotions would be made on seniority-cum-fitness basis from among those who are having the qualifications under clause 4.2.0 of the UGC Regulations, 2010. The petitioner claims that he is having all the qualifications and that he is the senior most and the question requires consideration by the Syndicate. However it can not be disputed that the qualifications are required as provided in the clauses 4.2.0 of the UGC Regulations. Therefore the writ petition is disposed of directing the 1[st] respondent to see that the proposal for appointment of the 1[st] petitioner in Ext.P5 is placed before the Syndicate for approval. Syndicate shall also take note of the fact that approval in Ext.P4 was granted without providing for any time limit for the appointment and also the fact that the petitioner has been continuing as Principal from 01.05.2015 onwards. Orders shall be passed within a period of two months from the date of receipt of a copy of this judgment.” 11. It is clear that applicability of UGC Regulations, 2010 i.e., 4.2.0. was not in dispute. UGC WP(C).No.11223 OF 2020 -11- Regulations, 2010 became applicable by the Syndicate Committee vide Ext.P10, the same reads thus: Mahatma Gandhi University, Kerala ## Summary Private Aided Colleges- Guidelines for the appointments & approvals of Principal and Assistant ProfessorsModification- Approved- Orders Issued. ## Academic B1 Section U.O.No.614/B 1/Academic/2017 P.D.Hills, 01.02.2017 _________________________________________________________ References:- 1. Judgment of the Hon'ble High Court in W.P.(C) No.29253/2012 and connected cases dt.23.02.2016 2. Minutes of the decisions taken by the Syndicate Standing Committee of Affiliation & Approval dt.18.01.2017 ## **Order** The Hon'ble High Court of Kerala as per Ref(1) Judgment had specifically ordered that the guidelines UGC Regulations 2010 are bound to be followed by the University and the colleges of the State in matters regarding the appointments & approvals in Private Aided Colleges. Syndicate Standing Committee of Affiliation & Approval convened on 18.01.2017 took the following decisions. 1. For the Direct Appointment of Principals it is decided to make the UGC Regulations 2010 applicable from 23.02.2016 onwards. For appointments through Promotions, it is decided to make applicable the seniority cum fitness principle envisaged in the Mahatma Gandhi University Law and only basic eligibility is required as per UGC Regulations (4.2.0)2010 is required. 2. It has been decided to continue the existing mode of constitution of Selection Committee for the selection of WP(C).No.11223 OF 2020 -12- Assistant Professors since the State Government had vide G.O.(P)No.398/2010/Edn.dt.17.12.2010 frozen the provisions relating to the constitution of a Selection Committee stipulated as per the UGC Regulations 2010 for the selection of Assistant Professors and also since the said order has not been challenged before the Court. 3. The above mentioned decisions have been approved by the Vice Chancellor by exercising the powers of the Syndicate as per Section 3, 10(17) of the Mahatma Gandhi University Act, 1985. Order issued accordingly. Sd/Komalavalli K Deputy Registrar 1(Academic) For Registrar 12. Clause 4.2.0. deals with the principles where condition No.4, as per the stand of respondent was not up to the mark or not considered for extension/approval as Principal, the same reads thus: “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 recognized University. ii. A Ph.D.Degree in concerned/allied/relevant discipline(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 WP(C).No.11223 OF 2020 -13- Based Appraisal System (PBAS), as set out in this Regulation in Appendix III for direct recruitment of Professors in Colleges.” 13. The judgment in W.A.No.1311 of 2019 (Dr.Thara K.Simon Vs. Mahatma Gandhi University and others), in paragraph No.5, which is extracted herein below, noticed that the UGC regulations came into being with effect from 18.09.2010. “5. At the first instance, we may deal with the applicability of the UGC Regulations to the colleges under the 1st respondent University. Learned Standing Counsel appearing for the 1st respondent had drawn our attention to Ext.P26 order passed by the University, dated 01.02.2017 (G.O No.614/B1/academic/2017). It is stated therein that, the University had decided to apply UGC Regulations with respect to the direct recruitment of Principals in all the affiliated colleges, from 23.02.2016. With respect to appointment by way of promotion, it is made clear that the criteria prescribed under the University Act, which is seniority-cum-fitness, is to be followed and Regulations 4.2.0 of the UGC Regulations with respect to basic qualifications, need to be followed. Evidently, Ext.P26 order was issued on the basis of the directions contained in a Full Bench decision of this Court reported in **Radhakrishnan Pillai v. Travancore Devaswom Board [2016(2) KLT 245 (F.B)]** . While deciding the issue, the Full Bench referred to an order passed by the State Government, G.O(P) No.392/2010/H.Edn.dated 10.12.2010. By the said order, the Government had taken decision to approve and to implement the UGC Regulations as such and it was decided that the Regulations will come into force with effect from 18.09.2010. All the Universities in the State was directed to incorporate the UGC Regulations in their Statutes and Regulations, within a WP(C).No.11223 OF 2020 -14- period of one month. In the Full Bench decision in Radhakrishnan Pillai's case (supra), the issue adjudicated was whether the affiliated colleges in the Universities within the State are bound to comply with the UGC Regulations, irrespective of whether the particular University had enacted any statute or regulations in consonance with the UGC Regulations. It was held that, in view of adoption made by the State Government with effect from 18.09.2010, as per the Government Order referred above, the Universities and affiliated colleges within the State are bound to comply with the UGC Regulations, 2010. Therefore we are of the considered opinion that, in view of the dictum contained in the decision in Radhakrishnan Pillai's case (supra) and in view of the Government Order referred above, no contention can be sustained that the UGC Regulations are not applicable with respect to the 1st respondent University or to the 3rd respondent college" 14. Though the petitioner's appointment is post 2010 but Clause 4.2.0. envisaged of holding of certain API score which the petitioner lacked and the reasoning assigned of dedication towards the administrative work cannot be a ground for extension. I am not commenting further on the merits of the matter as the order impugned reveals that after obtaining the comments from the members of the Syndicate, the applicability of the UGC guidelines were considered and accepted . But before acceptance in my view petitioner ought to have been given an opportunity of hearing which would also WP(C).No.11223 OF 2020 -15- envisage objection, however, this has not been followed. Thus for the time being I am of the view that the impugned order cannot surpass the judicial scrutiny of this Court for approval and accordingly the same is set aside. Writ petition is allowed to the limited extent that if the petitioner is holding the post of Principal as of now, in view of the status quo order dated 09.06.2020, the respondent shall take call as expeditiously as possible, affording opportunity of hearing within a period of forty five (45) days and pass an order, in accordance with law. ## **Sd/-** **AMIT RAWAL** **JUDGE** vv WP(C).No.11223 OF 2020 -16- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 PHOTOCOPY OF THE PROFORMA OF THE DPI AGREEMENT.** **EXHIBIT P2 PHOTOCOPY OF THE APPOINTMENT ORDER OF THE PETITIONER AS THE PRINCIPAL DATED 30.04.2015.** **EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 25.11.2015 OF THE 1ST RESPONDENT UNIVERSITY.** **EXHIBIT P4 PHOTOCOPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER.** **EXHIBIT P5 PHOTOCOPY OF THE SAID ORDER OF THE 7TH RESPONDENT DATED 24.04.2018. EXHIBIT P6 PHOTOCOPY OF THE SAID COMMUNICATION DATED 19.09.2018 ISSUED BY THE REGISTRAR OF THE 1ST RESPONDENT.** **EXHIBIT P7 PHOTOCOPY OF THE JUDGMENT IN W.P(C)21804/2019 DATED 26.08.2019.** - **EXHIBIT P8 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DATED 03.03.2020.** **EXHIBIT P9 PHOTOCOPY OF THE JUDGMENT IN SLP NOS.18938-18942/2017 DATED 17.07.2018.** **EXHIBIT P10 PHOTOCOPY OF THE UNIVERSITY ORDER DATED 01.02.2017. EXHIBIT P11 PHOTOCOPY OF THE RELEVANT PAGES OF THE SAID UGC REGULATIONS 2010.** **EXHIBIT P12 PHOTOCOPY OF THE COMMUNICATION DATED 30.08.2016 OF THE UGC TO THE UNIVERSITIES.** WP(C).No.11223 OF 2020 -17- **EXHIBIT P13 PHOTOCOPY OF THE JUDGMENT DATED 27.04.2020 OF THE HIGH COURT OF BOMBAY.** **RESPONDENT'S/S EXHIBITS: EXHIBIT R1(a) A TRUE COPY OF THE RELEVANT EXTRACT OF UGC REGULATION (4TH AMENDMENT) 2016**