FINA FRANCIS v. University Grants Commission & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 15TH DAY OF JANUARY 2013/25TH POUSHA 1934** ## **WP(C).No. 25049 of 2012 (E)** ## **---------------------------------------** ## **PETITIONER:** ## **-------------------** **FINA FRANCIS, AGED 24 YEARS, D/O.FRANCIS C.THEKKEKARA, THEKKEKARA HOUSE,CHOONDAL, THRISSUR DISTRICT.** **BY ADVS.SRI.V.PHILIP MATHEWS, SRI.GIBI.C.GEORGE.** **RESPONDENTS:** - **------------------------** **1. THE UNIVERSITY GRANTS COMMISSION, REPRESENTED BY ITS CHAIRMAN,NEW DELHI, BAHADUR SHAH ZAFAR MARG,NEW DELHI,PIN - 110 002.** ## **2. HEAD,** **NATIONAL EDUCATIONAL TESTING (NET) BUREAU, UNIVERSITY GRANTS COMMISSION,SOUTH CAMPUS, UNIVERSITY OF DELHI, BENITO,JUAREZ MARG, NEW DELHI - 110 021.** ## **3. CO-ORDINATOR,** - **NATIONAL EDUCATIONAL TESTING (NET) BUREAU, UNIVERSITY GRANTS COMMISSION,SOUTH CAMPUS, UNIVERSITY OF DELHI,BENITO,JUAREZ MARG, NEW DELHI - 110 021.** ## **4. UNION OF INDIA,** - **REPRESENTED BY SECRETARY, MINISTRY OF HUMAN RESOURCES,SHASTRI BHAWAN, NEW DELHI - 110 001.** **R1 TO R3 BY SRI.S.KRISHNAMOORTHY, S.C, R4 BY SRI.P.PARAMESWARAN NAIR,A.S.G OF INDIA.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Prv.** **W.P.(C). NO.25049/2012-E:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1. COPY OF THE SCHEME OF EXAMINATION PUBLISHED BY THE RESPONDENTS 1 AND 2.** - **EXHIBIT P2. COPY OF THE ADMISSION CARD ISSUED TO THE PETITIONER.** **EXHIBIT P3. COPY OF THE MARK SHEET OF THE PETITIONER DOWNLOADED FROM THE WEBSITE OF THE 3RD RESPONDENT.** - **EXHIBIT P4. COPY OF THE NEW QUALIFYING CRITERIA INCORPORATED BY THE FIRST RESPONDENT.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Prv.** ## **P.R.RAMACHANDRA MENON, J.** - - - - - - - - - - - - - - - - - - - - - **W.P.(c) Nos. 25049, 30634, 30982, 31040, 31070, 31243, 31245, 31385 of 2012 & 1363, 1388, 1393, 1408, 1434 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of January, 2013 ## **JUDGMENT** Whether 'Rules of the game' could be changed during the middle of the game, is the issue involved in all these cases. 2. The matter relates to acquisition of the requisite qualification for appointment as 'Lecturer' by clearing the 'National Eligibility Test' ( NET for short). The test was notified to be conducted by the UGC, stipulating the norms as to the particulars of the papers, the minimum marks to be obtained and such other details. The examination was scheduled to be conducted on 24.06.2012. 3. The petitioners participated in the examination and according to them they have crossed the hurdle, with regard to the minimum marks prescribed and notified. But the UGC, just a few days before the declaration of the result, sought to change the norms, whereby some modification was made with regard to the minimum qualifying marks and mode of reckoning the same; introducing the W.P.(C)No.25049/2012 & connected cases 2 'total/ aggregate minimum' as well, apart from the minimum marks to be secured for each paper. This was quite to the disadvantage of persons like the petitioners, who were never told of such a course earlier, as a result of which, they could not get the clearance. It was in the said circumstance, that similarly situated persons approached this Court by filing several writ petitions, which were considered together and a common judgment was passed by a learned Single Judge of this Court on 17/12/2012 ( W.P.(C)No.22187/2012 & connected cases). 4. As per the said judgment, the course pursued by the UGC was held as not correct or sustainable and accordingly, the impugned proceeding stipulating the category-wise qualifying criteria for lectureship was set aside. It was declared by this Court, that all the petitioners, who had obtained the separate minimum prescribed in the notification for Papers I, II and III, had cleared the 'NET' and appropriate follow up action was directed to be taken, to issue certificates to them, within 'one month' from the date of receipt of a copy of the judgment. The petitioners in these writ petitions seek for similar benefit, as given by this Court in the aforesaid judgment. W.P.(C)No.25049/2012 & connected cases 3 5. Sri.Krishnamoorthy, the learned Standing Counsel for the UGC, entered appearance on behalf of the respondents and made a submission that the respondents are very much aggrieved of the verdict passed by the learned Single Judge and that steps are being taken to file writ appeal. It is pointed out that, if the relief sought for is granted, it will cause severe hardship to the UGC. It is also brought to the notice of this Court that in most of these cases, interim orders have been passed, in terms of the final verdict as mentioned hereinbefore. 6. After hearing both the sides, this Court finds that the judgment already passed by the learned Single Judge in W.P.(C) No.22187/2012 and connected cases is purely based on the question of law, as there is no dispute with regard to the facts and figures. The question of law has been considered and answered in favour of the petitioners concerned and a declaration of law has been made by this Court. The Court also considered the scope and applicability of judicial precedents cited from both the sides particularly, the law declared by the Apex Court in **K.Manjusree v. State of Andra Pradesh and another** ( 2008(3) SCC 512) , the Full Bench of this W.P.(C)No.25049/2012 & connected cases 4 Court in **Dr.Cyril Johnson v. State of Kerala and others** ( 2009(4) KHC 404( FB) and a Division Bench of this Court in **Jayachandran v. High Court of Kerala** ( 2010 (4) KLT 49) (to which I was also a member), in support of the case projected by the petitioners, to the effect that the rules of selection could not be changed after commencement of the process of selection. The reliance sought to be placed from the part of the UGC with reference to the recent judgment of the Apex Court in Civil Appeal Nos.4959 and 4962 of 2011 with regard to the question of minimum qualifying marks for 'viva voce', introduced just two or three days before the commencement of the oral tests, though it was not stipulated in the advertisement issued by the PSC, was also considered therein and it was distinguished for the reason that, such stipulation was very much incorporated in the relevant rules, but omitted to be incorporated in the advertisement and hence held as not applicable. It was after considering the rival contentions and also the binding judicial precedents, that a finding was rendered, leading to the judgment as aforesaid. 7. As mentioned hereinbefore, the verdict passed by the W.P.(C)No.25049/2012 & connected cases 5 . learned Single Judge is rather declaratory in nature It has been held by the Apex Court that, if the verdict is of declaratory character, it shall be made applicable to all who are similarly situated; irrespective of the fact whether they are parties to the verdict or not. This is reported in **Ashwani Kumar and others v. State of Bihar and others** (1997(2) SCC 1). Since the petitioners seek for the benefit of such declaratory judgment, this Court does not find any reason to take a different course. 8. In the above circumstances, all these writ petitions are allowed, holding that the petitioners are entitled to have the benefit of the judgment passed in W.P.(C)No.22187/2012 & connected cases. The petitioners, who have obtained the separate minimum marks prescribed in the notification for Papers I, II and III, are declared as cleared the 'NET'. Appropriate follow up action shall be taken by the concerned respondent to issue certificates to them at the earliest, at any rate within 'one month' from the date of receipt of a copy of this judgment, subject to curing the defects if any pointed out, from the part of the respondents.. 9. Considering the fact that petitioners are being given the W.P.(C)No.25049/2012 & connected cases 6 benefit of the above declaratory judgment, it is also necessary to put the petitioners on alert, as to the steps stated as being taken by the UGC to challenge the basic judgment, by way of Writ Appeal. 10. In the above circumstances, it is made clear that, if the writ appeal being filed by the UGC comes to be allowed in favour of the UGC, naturally the law declared by the Division Bench will be made applicable to all the petitioners herein, as the benefit of declaration will stand equally applicable to both the sides. Taking note of the submission made by the learned Standing Counsel for the UGC, the petitioners in all these cases are directed to furnish an additional set of the concerned writ petition to the learned Standing Counsel forthwith, to save time in respect of the procedural formalities to be completed. ## **P.R.RAMACHANDRA MENON JUDGE** sv. 7 W.P.(C)No.25049/2012 & connected cases ## **P.R.RAMACHANDRA MENON JUDGE** sv. W.P.(C)No.25049/2012 & connected cases 8