Dr. Sheeba M. Kurian v. The University of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE A.M.BABU MONDAY, THE 20TH DAY OF FEBRUARY 2017/1ST PHALGUNA, 1938 WA.No. 270 of 2017 () IN WP(C).6937/2013 -----------------------------------------AGAINST THE JUDGMENT IN WP(C) 6937/2013 of HIGH COURT OF KERALA . APPELLANT(S)/6TH RESPONDENT: ----------------------------------------------- DR. SHEEBA M. KURIAN, ASSISTANT PROFESSOR IN MALAYALAM, DEPARTMENT OF MALAYALAM, THE UNIVERSITY OF KERALA, THIRUVANANTHAPURAM-695 034. BY ADVS.SRI.BRIJESH MOHAN SRI.RAHUL IPE PRASAD RESPONDENT(S)/PETITIONER AND RESPONDENTS 1 TO 4, 7 AND 8: --------------------------------------------------------------------------------------------- ## 1. DR. K. JYOTHISH KUMAR, JRVARA, AKSHAYA NAGAR, NEERAMANKARA, KAIMANAM P.O., THIRUVANANTHAPURAM.695 040. 2. THE UNIVERSITY OF KERALA, THIRUVANANTHAPURAM, REPRESENTED BY ITS REGISTRAR -695 034. 3. THE VICE CHANCELLOR, THE UNIVERSITY OF KERALA, THIRUVANANTHAPURAM-695 034. ## 4. THE REGISTRAR, - THE UNIVERSITY OF KERALA, THIRUVANANTHAPURAM-695 034. 5. STATE OF KERKALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 6. THE SYNDICATE OF UNIVERSITY OF KERALA, REPRESENTED BY VICE CHANCELLOR-695 034. 7. THE SELECTION COMMITTEE OF APPOINTMENT OF LECTURES, UNIVERSITY OF KERALA, MALAYALAM DEPARTMENT, REPRESENTED BY VICE CHANCELLOR-695 034. R1 BY ADV. SRI.D.SREEKUMAR R5 BY GOVERNMENT PLEADER SRI. A.J. VARGHESE R2, 3, 4, 6 & 7 BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## K. SURENDRA MOHAN & A.M. BABU, JJ. - - - - - - - - - - - - - - - - - W.A. No. 270 of 2017 - - - - - - - - - - - - - - - - - Dated this the 20[th] day of February, 2017 ## JUDGMENT ## Surendra Mohan, J. The 6[th] respondent in W.P.(C) No. 6937 of 2013 is the appellant. She has filed this appeal against the judgment dated 1.12.2016 of the learned Single Judge allowing the writ petition. The writ petition was filed by the first respondent challenging the selection and appointment made to the post of Lecturer in Malayalam in the Department of Malayalam against the vacancy notified as per Ext.P1. Exts. P5, P6 and P7, the appointment order of the appellant herein, the minutes of the meeting of the Selection Committee, as well as the proceedings of the Syndicate, were also sought to be quashed. The learned Single Judge has allowed the writ petition setting aside the selection and directed that the selection be W.A.270/2017. 2 reworked. It is stated that, the appellant had been working pursuant to her appointment, which position has been permitted to be continued subject to further orders of the University. 2. The contention of the writ petitioner/first respondent was that, appointments to Universities are governed by UGC Regulations on Minimum Qualification 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 'the UGC Regulations' for short). It was alleged that the said Regulations had not been followed in the selection of the appellant herein who was appointed. It was further contended that, the appellant had been selected only because of non-compliance with the provisions of UGC Regulations as a result of which, she was awarded more marks than the writ petitioner/first respondent. The UGC W.A.270/2017. 3 Regulations require weightage to be given to the Academic Performance Indicator (API) Scores of the candidate. According to the first respondent, the selection in the present case was conducted without giving weightage to the API Scores. 3. The University filed Counter Affidavit disputing the contentions. According to the University, the appellant had been appointed pursuant to the recommendations made by the duly constituted Selection Committee. According to the University, the UGC Regulations had not been adopted by it and in the absence of such Regulations being applicable, the Kerala University First Statutes, 1977 and Ext.P7 norms would continue to be applicable. It was also contended that the calculation of API Scores under Ext.P3, on which reliance was placed by the first respondent, was wrong. The Government also supported the stand of the University. W.A.270/2017. 4 4. The learned Single Judge, after considering the respective contentions, has allowed the writ petition, holding that the UGC Regulations were applicable and that, since the selection was not made in accordance with the said Regulations, the same was bad. Therefore, the university has been directed to rework the selection in accordance with law. The appellant is aggrieved by the said judgment. 5. According to the learned Senior Counsel Shri. Jaju Babu, who appears for the appellant, the post of Lecturer, re-designated as Assistant Professor, does not insist on the API Score as a qualification that has to be satisfied. Our attention is drawn to the qualifications stipulated by Ext.P3 Regulations for the post of Professor, Principal and Associate Professor to point out that possession of a minimum API Score has been stipulated as a necessary qualification in the case of several posts. In sharp contrast, according to the learned Senior Counsel, no such minimum API Score is insisted upon W.A.270/2017. 5 as a qualification for the post of Assistant Professor. The above being the position, the direction of the learned Single Judge to rework the selection process taking into account the API Score of the candidate also is unjustified and is liable to be set aside. The crucial distinction that the post of Assistant Professor did not require possession of a minimum API Score has not been noticed by the learned Single Judge, it is contended. It is further pointed out that, against the Full Bench decision in Radhakrishna Pillai D. v. Travancore Devaswom Board (2016 (2) KLT 245), the State has preferred a Special Leave Petition before the Apex Court which has been admitted on 27.1.2017. The learned Senior Counsel therefore seeks interference with the judgment of the learned Single Judge. 6. Adv. D. Sreekumar appears for the first respondent and contends that a perusal of Ext.P1 makes it sufficiently clear that the UGC Regulations were applicable to 6 W.A.270/2017. the University and to the selection that is in dispute. According to the learned counsel, Ext.P1 Notification was issued on 13.6.2011, whereas the UGC Regulations are of the year 2010. Our attention has been drawn to Ext.P2 which is the application for the post that was submitted by the first respondent. In Ext.P2, the columns numbered as Serial Nos. 14 and 15 referred to the UGC Regulations, 2010. As per Serial No. 14, a candidate has to indicate whether he/she meets the eligibility criteria as per the UGC Regulations, 2010 and Serial No. 15 insists on supply of the API Score of the candidate. Reference is made to the list of enclosures stipulated by columns designated as Serial No. 24 to show that the API Score Sheet had been appended to the application. Therefore, according to the learned counsel, the University had accepted the UGC Regulations, 2010, evidenced herein by Ext.P3. However, the selection was admittedly conducted as per Ext.P7 which is dated 23.10.2007. The selection is W.A.270/2017. 7 therefore vitiated and has been rightly set aside by the learned Single Judge. We have heard the learned Government Pleader also. 7. We have considered the contentions advanced before us anxiously. As rightly pointed out by the learned counsel for the first respondent, Ext.P1 Notification is dated 13.6.2011. In Ext.P2, which is admittedly the copy of the application submitted by the first respondent, the column that is numbered as Serial No. 14 seeks an answer as to whether the candidate meets the eligibility criteria 'as per UGC Regulations, 2010 for the applied post'. It has been further made clear in the bracket that UGC Regulations are available on both UGC web site and Kerala University web site. At column that is numbered as Serial No. 15, the application requires the candidate to specify the total API Score. In the said column, it has been set out in italics 'For calculation of the API Score, refer Appendix III of UGC Regulations 2010'. W.A.270/2017. 8 Accordingly, the candidate has in Ext.P2 specified the API Score. It is therefore clear from a perusal of Ext.P2 that the University had required the candidates to supply the API Scores calculated in accordance with the provisions of the UGC Regulations, 2010. It cannot be presumed that the scores were required to be supplied as an empty formality. Going by Ext.P2, it has to be presumed that all the candidates would have supplied their API Scores as required in the application. We have been taken through the UGC Regulations, 2010 that stipulate that weightage be given for each candidate based on the API Score also. Admittedly no such weightage has been given in the present case. Having stipulated in the application form that the candidates should supply the API Scores, it is not open to the University to contend that the said Regulations are not applicable to the University or to the selection in the present case. Apart from the above, the Full Bench of this Court in the decision in Radhakrishna Pillai D. v. Travancore W.A.270/2017. 9 Devaswom Board (supra) has held that once the State of Kerala has adopted the UGC Regulations, Universities and affiliated Colleges in the State are bound by it. It is further laid down that in the event of a conflict, the University Act and the Statutes framed thereunder as well as the orders passed under the provisions thereof would have to give way to the UGC Regulations. The above being the state of affairs, we are not satisfied that there is any infirmity in the judgment of the learned Single Judge warranting interference therewith in appeal. What the learned Single Judge has directed is only that the selection be reworked in accordance with the UGC Regulations. The learned Single Judge has also taken care to direct that the appellant herein could hold the post of Assistant Professor in Malayalam provisionally and subject to further orders to be passed by the University in the matter. 8. In view of the above, it is only appropriate that the University sets right matters by reworking the selection in W.A.270/2017. 10 accordance with the direction issued by the learned Single Judge. We are not satisfied that the filing of a Special Leave Petition by the Government against the judgment of the Full Bench, is of any consequence. The Full Bench decision would continue to govern the field unless and until it is set aside by the Apex Court. For the foregoing reasons, this writ appeal fails and is accordingly dismissed. K. SURENDRA MOHAN JUDGE A.M. BABU JUDGE sb