Dr. Reena Mary Abraham v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941** ## **WP(C).No.30482 OF 2014(I)** ## **PETITIONER/S:** **DR. REENA MARY ABRAHAM AGED 45 YEARS ASSISTANT PROFESSOR,MAR THOMA COLLEGE, CHUNGATHARA P.O,MALAPPURAM (RESIDING AT VALAKOTTU VADAKKETHIL, CHUNGATHARA P.O,MALAPPURAM 679 334** **BY ADVS. SRI.T.B.HOOD** P.C.SASIDHARAN **SRI.AMAL KASHA SMT.M.ISHA** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695 001 2 THE DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM 3 UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, THENHPALAM,MALAPPURAM 673 635 4 THE MANAGER MAR THOMA COLLEGE,CHUNGATHARA,MALAPPURAM 679 334 R1-2 BY GOVERNMENT PLEADER R1, R3 BY SRI.MOHAMMED NIAS C.P., SC, UNIVERSITY OF CALICUT** **R1 AND 2 - SRI.JESTIN MATHEW,GOVERNMENT PLEADER R3 SRI. MOHAMMED NIAS. C.P, STANDING COUNSEL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-112019, THE COURT ON 07-11-2019 DELIVERED THE FOLLOWING:** 2 WP(C).No.30482 OF 2014(I) ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P9 Government communication dated 09.04.2014, whereby the Post Graduate examination conducted during April/May 1991 as the date of acquiring Master Degree and to exempt the date of declaration of the result sought for by the petitioner was declined by the Government, stating that, petitioner has acquired the Post Graduate qualification only in January, 1992 and therefore the request made in the representation cannot be considered. 2. Brief material facts for the disposal of the writ petition are as follows:- As per Ext.P1 order, petitioner was appointed as junior lecturer (English) in the Mar Thoma College, Chungathara, Malappuram District. As per Ext.P3 order dated 13.08.1998, the appointment was WP(C).No.30482 OF 2014(I) approved and as per Ext.P4 order dated 19.08.1998 probation was declared. Consequent to delinking of the pre-degree from the college petitioner became excess and thereupon by virtue of a Government Order petitioner was transferred to Mar Thoma Higher Secondary School as per Ext.P5 order dated 03.10.2000. While continuing so, as per Ext.P6 dated 11.07.2012, petitioner was reappointed as Assistant Professor in English in the Mar Thoma College, Chungathara, which according to the petitioner is permissible as per Ext.P7 Government Order dated 01.07.2009. As per Ext.P8 University approved the re-appointment of the petitioner with effect from 11.7.2012. Since there was delay of approval Ext.P10 representation was submitted before the Government, which was declined as per Ext.P9. It is thus challenging Ext.P9, this writ petition is filed. 3. I have heard learned counsel for the petitioner, learned Government Pleader, and learned Standing Counsel for the University and perused the WP(C).No.30482 OF 2014(I) pleadings and documents on record. 4. The sum and substance of the contention put forth by the petitioner against Ext.P9 order is relying upon the notification issued by the University Grants Commission dated 30.06.2010. Learned counsel has invited my attention to Clause 3.3.0 thereunder which read thus “3.3.0 The minimum requirements of a good academic record, 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the master's level and qualifying in the National Eligibility Test (NET) or an accredited test (State Level Eligibility Test - SLET/SET), shall remain for the appointment of Assistant Professors” 5. According to the petitioner, as provided under the said UGC Regulations at Clause 3.5.0 a relaxation of 5% may be provided, from 55% to 50% of the marks to the Ph.D Degree holders, who have obtained their Master's Degree prior to 19[th] September, 1991. Learned counsel has also invited my attention to a Division Bench Judgment of this Court in ' _**University Grants Commission and Others v. Anand J.Illickan and Others'[2015 KHC 477)**_ to 5 WP(C).No.30482 OF 2014(I) canvass the proposition that during the year 2012, the University Grants Commission has clarified the regulations with respect to NET examination and the conditions of eligibility, are quoted in the Division Bench judgment, and the relevant portion read thus:- _18. All the issues being inter connected are being taken together. The conditions of eligibility as provided in the notification issued by the UGC for NET Examination, 2012 are contained in paragraph 3, which is extracted as below:_ _“3) CONDITIONS OF ELIGIBILITY:_ _i) Candidates who have secured at least 55% marks(without rounding off) in master's Degree OR equivalent examination from universities/institutions recognised by UGC in Humanities (including languages) and Social Science, Computer Science & Applications, electronic Science etc. are eligible for this Test. The Scheduled Caste(SC)/Scheduled Tribe (ST)/physically Handicapped(PH)/ Visually Handicapped (VH) category candidates who have secured at least 50% marks (without rounding off) in Master's degree or equivalent examination are eligible for this Test._ _ii) Candidates who have appeared OR will be appearing at the qualifying Master's degree (final year) examination and whose result is still awaited OR candidates whose qualifying examinations have been delayed may also apply for the Test. However, such candidates will be submitted provisionally and shall be considered eligible for award of JRF /Lectureship eligibility only after they have passed their Master's degree examination or_ 6 WP(C).No.30482 OF 2014(I) _equivalent with at least 55% marks (50% marks in case of SC/ST/PH/VH category candidates). Such candidates must complete their P.G degree examination within two years from the date of NET result with required percentage of marks, failing which they shall be treated as disqualified._ 6. The sum and substance of the contention put forth by the learned counsel for the petitioner is that, as per the clarification issued the Ph.D degree holders whose Master's level examination had been completed by 19[th] September, 1991 (irrespective of date of declaration of result)shall be eligible for a relaxation of 5% aggregate marks (i.e from 55% to 50%) for appearing in NET. According to the learned counsel, the same clarification is applicable to the Regulations 2010, consequent to the subsequent conditions of eligibility issued by the University Grants Commission during the year 2014 and as per Clause III of conditions of eligibility thereunder the Ph.D. Degree holders whose Master's level examination had been completed by 19[th] September, 1991(irrespective of date of declaration of result) shall be eligible for a WP(C).No.30482 OF 2014(I) relaxation of 5% in aggregate marks (i.e. from 55% to 50%)for appearing in NET. 7. Therefore learned counsel submitted that, on a perusal of Ext.P11 certificate issued by the University of Kerala dated 16.05.2013 it is clear that, petitioner has participated in the M.A.Branch-I English language & Literature Examination held during April/May,1991, however the result was published only on 28.01.1992. Being so it is contented that, by virtue of the clarifications issued in 2012 by the UGC petitioner is entitled to all consequential benefits on the basis of Ext.P8 issued by the University of Calicut dated 01.11.2013, whereby the Standing Committee of the Syndicate on the Staff of Affiliated Colleges at its meeting held on 21.08.2013 resolved to approve the re-appointment of the petitioner the deployed teacher as Assistant Professor in the Department of English at Mar Thoma College, Chungathara with effect from 11.07.2012 FN, reappointed as per GO(MS) No.75/09/H.Edn dated 8 WP(C).No.30482 OF 2014(I) 01.07.2009, GO(MS)No. 401/2010/H.Edn dated 18/12/2010 and GO(MS)No. 165/12/H.Edn dated 01/06/2012, in the retirement vacancy of Smt. Susan Joseph as she has acquired Ph.D in English on 29.11.2007. The said Sub Committee decision was approved by the Vice-Chancellor on 23.10.2013. 8. Learned counsel has also contended that thinking either way, the State Government is not vested with powers to interfere with an approval made by a University, which was considered by this Court in _**Shalini Rachel v.Manager, Christian College [2007(3) KLT 355]**_ in the matter of the approval in respect of the University of Kerala. Learned counsel has also invited my attention to Calicut University (Conditions of Service of the Teachers and Members of Non-Teaching staff) First Statutes, 1979 and specifically to Statute 14 dealing with approval of appointment. Clause 1 thereunder is relevant which stipulates that, approval of every appointment to the teaching staff shall be made by the Syndicate subject to the 9 WP(C).No.30482 OF 2014(I) condition that the appointment is in accordance with the staff pattern fixed by the University and that the person so appointed is fully qualified for the post. However, Clause 2 thereunder stipulates that the the Deputy Director of Collegiate Education concerned shall verify before making direct payment of salaries as to whether the post for which the payment is claimed is in accordance with the staff pattern and workload fixed by the University and doubtful cases shall be referred to the University for clarification and the correctness of the direct payment ensured. Therefore it is contented that the order passed by the Government without making any reference to the University in contemplation of Statute 14 (2) is illegal and arbitrary, liable to be interfered with by this Court. 9. Learned counsel has also pointed out that, petitioner is not receiving salary on UGC scale. It is also submitted that, subsequently during 2014 petitioner has acquired Master's degree from Madras WP(C).No.30482 OF 2014(I) University. But learned Government Pleader on the basis of the UGC Regulations 2010 has contented that petitioner has not acquired the Master's degree as is contemplated in Clause 3.5.0 before 19[th] September, 1991. 10. In my considered opinion for the forgoing discussion the subject matter is to be reconsidered by the State Government after providing an opportunity of hearing to the petitioner, also taking into account the UGC notification for NET examination, 2012 and the subsequent notifications issued by the UGC. 11. Sequel to the above discussion is that, Ext.P9 order passed by the Government dated 09.04.2014, declining the relief sought for by the petitioner on the basis of participation in the post graduate examination during April/May 1991, is herewith quashed and there will be a direction to the Government to re-consider the matter after providing opportunity of hearing to the petitioner and taking into account the UGC notifications, the 11 WP(C).No.30482 OF 2014(I) judgments of this Court specified above and the Statute 1979 discussed above, at the earliest and at any rate, within three months from the date of receipt of a copy of this judgment. The writ petition is allowed to the above extent. **Sd/-** ## **SHAJI P.CHALY** **JUDGE** hmh 12 WP(C).No.30482 OF 2014(I) ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER DATED 23/12/1996** - **EXHIBIT P2 EXHIBIT P2 TRUE COPY OF THE G.O(MS) NO 30/96/H.EDN DATED 12/02/1996** - **EXHIBIT P3 EXHIBIT P3 TRUE COPY OF THE ORDER DATED 13/08/1998** - **EXHIBIT P4 EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 4TH RESPONDENT DATED 19/08/1998** - **EXHIBIT P5 EXHIBIT P5 TRUE COPY OF THE ORDER DEPLOYING THE PETITIONER TO MAR THOMA HIGHER SECONDARY SCHOOL DATED 03/10/2000** - **EXHIBIT P6 EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 11/07/2012** - **EXHIBIT P7 EXHIBIT P7 TRUE COPY OF THE G.O(P) NO 75/09/H.EDN DATED 01/07/2009** - **EXHIBIT P8 EXHIBIT P8 TRUE COPY OF THE ORDER ISSUED BY THE UNIVERSITY DATED 01/11/2013** - **EXHIBIT P9 EXHIBIT P9 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT DATED 09/04/2014** - **EXHIBIT P10 EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 27/05/2013 SUBMITTED BY THE PETITIONER** - **EXHIBIT P11 EXHIBIT P11 TRUE COPY OF THE SPECIAL CERTIFICATE ISSUED BY THE UNIVERSITY** - **RESPONDENT'S/S EXHIBITS: NIL**