Marian College (Autonomous) v. Mahatma Gandhi University

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 20[TH] DAY OF JUNE 2022 / 30TH JYAISHTA, 1944** ## **WP(C) NO. 12194 OF 2022** ## **PETITIONERS:** |**1**|**MARIAN COLLEGE (AUTONOMOUS),**| |---|---| ||**REPRESENTED BY ITS MANAGER, KUTTIKKANAM P.O., PEERMADE, IDUKKI,**| ||**KERALA-685 531.**| |**2**|**JYOTHI JOSE,**| ||**ASSISTANT PROFESSOR IN COMPUTER APPLICATION, MARIAN COLLEGE,**| ||**KUTTIKKANAM P.O., PEEERMADE, IDUKKI, KRALA-685 531, HAVING**| ||**PERMANENT ADDRESS AT PALAKUNNEL HOUSE, MAMMOOD P.O.,**| ||**CHANGANASSERY, KOTTAYAM-686 536.**| **BY ADVS. BABU VARGHESE (SR.) C.V.ALEXANDER ABHAY FERDINAND** ## **RESPONDENTS:** |**1**|**MAHATMA GANDHI UNIVERSITY,**| |---|---| ||**REPRESENTED BY ITS REGISTRAR, PRIYADHARSHINI HILLS,**| ||**ATHIRAMPUZHA, KOTTAYAM-686 560.**| |**2**|**STATE OF KERALA,**| ||**REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,**| ||**HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695 001.**| |**3**|**DIRECTOR OF COLLEGIATE EDUCATION,**| ||**VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.**| |**4**|**DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,**| ||**VAYASKARAKUNNU, KOTTAYAM-686 001.**| |**5**|**UNIVERSITY GRANTS COMMISSION (UGC),**| ||**REPRESENTED BY ITS SECRETARY, BAHADUR SHAH ZAFAR MARG, NEW**| ||**DELHI-110 002.**| ||**BY ADVS.**| ||**SURIN GHEORGE IYPE,**| ||**SRI.S.KRISHNAMOORTHY**| **2** ## **WP(C) NO. 12194 OF 2022** ## **OTHER PRESENT:** **SMT. RESMI THOMAS - GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 12194 OF 2022** **3** ## **J U D G M E N T** The 2[nd] petitioner was appointed as an Assistant Professor in Bachelors of Computer Application (BCA) by the 1[st] petitioner – Marian College (hereinafter referred to as 'the College' for short), through a selection process, which they assert was done complying with all the relevant and imperative provisions. 2. The process for selection is not in dispute, but the University takes a stand that the 2[nd] petitioner was not eligible educationally to have been appointed to the said post since she, admittedly, has not cleared the National Eligibility Test (NET). 3. The specific contention of the petitioners, as argued by their learned Senior counsel – Sri.Babu Varghese, instructed by Sri.C.V.Alexander, is that the requirement for NET, as per 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' (hereinafter referred to as 'the UGC Regulations') - a copy of which has been produced on record as Ext.P10, an Assistant Professor in Engineering and Technology disciplines need not acquire the NET. The learned Senior Counsel pointed out that this is the essential difference between Clause 4.4.1 and Clause 4.4.6.1 of Ext.P10 **WP(C) NO. 12194 OF 2022** **4** Regulations – the forms which relate to the post of Assistant Professor in Arts & Humanities, Social Sciences, Commerce, Education, Languages, Law, Journalism and Mass Communication; while, the latter to Assistant Professor in Engineering and Technology disciplines. He argued that when it comes to Clause 4.4.1, an Assistant Professor in disciplines like Arts, Humanities etc, must obtain NET for being approved; while, in the case of an Assistant Professor who is selected to Engineering and Technology disciplines Clause 4.4.6.1 of the Regulations make no such stipulation. He then added, pointing out to Ext.P11 Regulations of the All India Council for Technical Education (AICTE), that the position is no different therein either. 4. The learned Senior Counsel then added that, after the 2[nd] petitioner was appointed by the 1[st] petitioner – College in the year 2017, clarifications were sought from them on this issue by the University, which was explained validly on the afore basis. He submitted that, in spite of this, Ext.P18 order has now been issued by the Government - more than nearly five years after the 2[nd] petitioner was appointed – refusing to grant approval to her appointment, solely for the reason that she does not have NET qualification. The learned Senior Counsel then argued, relying on Ext.P12, that the UGC themselves have informed another College in identical circumstances **WP(C) NO. 12194 OF 2022** **5** that NET is not a mandatory qualification for the post of Lecturer in BCA Degree Programme. He concluded his submissions asserting that the UGC has issued Ext.P12(d) to the 1[st] petitioner also as early as in the year 2013, clarifying that NET is not a mandatory qualification for the post of Lecturer in BCA Degree Programme; thus praying that Ext.P18 be set aside. 5. In response, the learned Standing Counsel for the Mahatma Gandhi University - Sri.Surin George Ipe, submitted that the law has now been well settled by this Court, including through **P.Suseela and Others v. University Grants Commission and Others [2015 (8) SCC 129],** that no appointments can be made to any of the posts in the Arts and Science Colleges except through candidates who have acquired the NET. He explained that BCA is offered both by Technological Institutions and by Arts and Science Colleges, but that when it comes to the latter, the requirements of the UGC Regulations, 2010, under Clause 4.4.1 would apply. He, however, conceded, to a pointed question from this Court, that the Selection Committee, who found the 2[nd] petitioner eligible for being offered appointment, did not object to her qualifications and that they proceeded on the premise that NET was not a mandatory qualification for being appointed as a Lecturer in BCA under the UGC Regulations, 2010. He argued that, however, merely because the Selection **WP(C) NO. 12194 OF 2022** **6** Committee made an error, it would not bind the University and that it is up to them to rectify it as soon as it is possible. He asserted that, it is in such circumstances, that Ext.P18 has been issued and thus prayed that this writ petition be dismissed. 6. Sri.Krishnamoorthy - learned counsel appearing for the UGC, submitted that the intent of the UGC in issuing its Regulations of the year 2010 was to confine Clause 4.4.6.1 to courses which are offered in the Technological Colleges or University and not to Arts and Science Colleges. He added that, as far as the latter is concerned, the provisions of Clause 4.4.1 would apply. 7. As regards Exts.P12 and P12(d), Sri.Krishnamoorthy explained that the UGC was of a different view earlier, but that after **P.Suseela** ( _supra_ ) was delivered by this Court, they had no other option but to stipulate that NET is mandatory for all posts in Arts and Science Colleges. 8. The learned Government Pleader – Smt.Resmi Thomas appearing for respondents 2 and 3, submitted that, the said Authorities have no role to play in the controversy between the other parties as of now and therefore, that they have nothing to offer in comment to the same. 9. When I evaluate the afore submissions and go through Ext.P18, it is luculent that the University takes a stand that the **WP(C) NO. 12194 OF 2022** **7** Selection Committee of the College was in error in having appointed the petitioner. They also say therein that, even though the UGC was asked for their clarification, the same has not been obtained. 10. However, the question as to the impact of Clause 4.4.6.1 of the UGC Regulations, 2010 has not been taken into account at all. Though this Court would not be justified in speaking on the merits of this matter, particularly taking note of the submissions of Sri.Krishnamoorthy as afore, I am certain that the UGC has a role to play, if this controversy is to be resolved legally. 11. However, Ext.P18 says that the UGC did not respond to the request of the University for a clarification; and this is crucial because the Government has also addressed them through Ext.P16 order dated 30.12.2020 on this aspect. 12. Clearly, therefore, there is still a controversy as to whether Clause 4.4.6.1 of the UGC Regulations would apply to the 'discipline', rather than the Institution which imparts it. 13. To paraphrase, if Clause 4.4.6.1 applies to the discipline, then it would do so notwithstanding whether the same is offered by a Technological Institution or by an Arts and Science Institution. This aspect being not clarified by the UGC until now, I am certain that the entire issue will require to be reconsidered by the University, particularly because the Government has also addressed them **WP(C) NO. 12194 OF 2022** **8** through Ext.P16, as said above. Resultantly, I order this writ petition and set aside Ext.P18; with a consequential direction to the University to reconsider the entire factual matrix, on the touchstone of the various materials and inputs as are germane, but only after obtaining necessary clarification from the UGC in this regard. For this purpose, I direct the UGC to offer necessary clarification to the University as and when it is sought from them, particularly taking note of the fact that Ext.P16 letter has also been issued to them by the Government on 30.12.2020. It is needless to say, that until such time as the afore exercise is completed, the _status quo_ with respect to the appointment of the 2[nd] petitioner shall continue. **SD/DEVAN RAMACHANDRAN** **JUDGE** rp **WP(C) NO. 12194 OF 2022** **9** ## **APPENDIX OF WP(C) 12194/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 THE TRUE COPY OF THE EQUIVALENCY CERTIFICATE NO.AC.D/04/21347/2017 DATED 23.08.2017 ISSUED BY 1ST RESPONDENT UNIVERSITY.** **Exhibit P2 TRUE COPY OF THE NOTIFICATION PUBLISHED IN MANGALAM NEWSPAPER DATED 05.01.2017. Exhibit P2 A TRUE COPY OF THE NOTIFICATION PUBLISHED IN DEEPIKA NEWSPAPER DATED 05.01.2017. Exhibit P2 B TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE HINDU NEWSPAPER DATED 05.01.2017.** **Exhibit P3 TRUE COPY OF THE MEMO DATED 10.03.2017 ISSUED BY THE PETITIONER COLLEGE CALLING THE 2ND PETITIONER FOR INTERVIEW. Exhibit P4 TRUE COPY OF THE LETTER NO.D2/327/2016/H.EDN. DATED 21.02.2017 ISSUED BY THE 2ND RESPONDENT APPOINTING A GOVERNMENT NOMINEE TO THE SELECTION COMMITTEE. Exhibit P5 TRUE COPY OF THE MINUTES OF THE MEETING OF THE SELECTION COMMITTEE HELD ON 25.03.2017. Exhibit P6 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 01.06.2017. Exhibit P6A TRUE COPY OF THE JOINING REPORT OF THE 2ND PETITIONER DATED 12.07.2017. Exhibit P7 TRUE COPY OF THE OFFER LETTER ISSUED BY LE ECOSYSTEM TECHNOLOGY INDIA PVT. LTD. DATED 09.08.2016 TO THE 2ND PETITIONER. Exhibit P8 TRUE COPY OF THE LETTER NO.GS I-TS/APP/2017 DATED 05.08.2017 FORWARDING THE PROPOSAL FOR THE APPROVAL OF APPOINTMENT OF THE 2ND PETITIONER TO 1ST RESPONDENT UNIVERSITY. Exhibit P9 TRUE COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT UNIVERSITY VIDE LETTER NO.ACB1/1/4444/2017 DATED 23.08.2018 STATING THAT ON RECEIPT OF CLARIFICATION FROM 2ND AND 5TH** **WP(C) NO. 12194 OF 2022** **10** ## **RESPONDENTS DECISION REGARDING APPROVAL OF APPOINTMENT WILL BE TAKEN.** |**Exhibit P10**||**TRUE COPY OF THE RELEVANT PORTION OF THE UGC**| |---|---|---| |||**REGULATIONS, 2010 AS PUBLISHED IN THE GAZETTE OF**| |||**INDIA ON 18.09.2010.**| |**Exhibit P11**||**THE TRUE COPY OF THE RELEVANT PORTION OF THE AICTE**| |||**REGULATION, 2010.**| |**Exhibit P12**||**THE TRUE COPY OF THE LETTER NO.F 9-3/2010(PS/MISC)**| |||**PF FILE III DATED MARCH 2013 ISSUED BY THE 5TH**| |||**RESPONDENT UGC TO PRINCIPAL OF MES COLLEGE,**| |||**MARAMPALLY.**| |**Exhibit P12**|**A**|**THE TRUE COPY OF THE RTI APPLICATION FILED BEFORE**| |||**THE 5TH RESPONDENT DATED 19.06.2013.**| |**Exhibit P12**|**B**|**THE TRUE COPY OF THE REPLY TO RTI APPLICATION DTED**| |||**19.06.2013 BEARING NO.F.1 26504/2013(RIA/PS0 DATED**| |||**22.07.2013 ISSUED BY THE 5TH RESPONDENT.**| |**Exhibit P12**|**C**|**TRUE COPY OF THE LETTER NO.GSI-TS/APP/2012 DATED**| |||**01.08.2013 ISSUED BY THE THE 1ST PETITIONER COLLEGE**| |||**TO 5TH RESPONDENT UGC.**| |**Exhibit P12**|**D**|**THE TRUE COPY OF REPLY TO EXHIBIT P2(C) ISSUED BY**| |||**THE 5TH RESPONDENT UGC VIDE LETTER NO.F-**| |||**9/2010(PS)MISC PT.FILED-III DATED 16.09.2013.**| |**Exhibit P13**||**THE TRUE COPY OF THE UO NO.688/B1/2015/ACAD WITH**| |||**REGARD TO THE APPROVAL OF APPOINTMENT OF**| |||**SHRI.,SANTO CHERIAN AS ASSISTANT PROFESSOR IN THE**| |||**DEPARTMENT OF COMPUTER APPLICATIONS IN THE PETITION**| |||**COLLEGE DATED 04.02.2015.**| |**Exhibit P13**|**A**|**TRUE COPY OF THE REPLY TO RTI ISSUED BY 1ST**| |||**RESPONDENT UNIVERSITY VIDE NO.AC.AIV/3/1807/2012**| |||**DATED 08.08.2012.**| |**Exhibit P14**||**TRUE COPY OF THE COMMUNICATION NO.F3/193/2018/HEDN**| |||**DATED 10.12.2018 ISSUED BY 2ND RESPONDENT OT 5TH**| |||**RESPONDENT.**| |**Exhibit P14**|**A**|**TRUE COPY OF THE REPLY TO EXHIBIT P14 ISSUED BY 5TH**| |||**RESPONDENT VIDE F.NO.9-3/2010(PS/MISC) PTIII DATED**| |||**04.12.2019.**| **WP(C) NO. 12194 OF 2022** **11** **Exhibit P15 THE TRUE COPY OF THE LETTER NO.D4/7533/2020/DCE DATED 21.08.2020 ISSUED BY THE 3RD RESPONDENT TO 2ND RESPONDENT. Exhibit P16 THE TRUE COPY OF THE LETTER DATED 30.12.2020 ISSUED BY 2ND RESPONDENT TO 5TH RESPONDENT UGC REGARDING VERACITY OF EXHIBIT P12(D) COMMUNICATION NO.DO NO.F3/193/2018/HEDN. Exhibit P16 A TRUE COPY OF THE REPLY TO EXHIBIT P16 ISSUED BY 5TH RESPONDENT VIDE LETTER F. NO.9-26/2020(PS) DATED 17.03.2021. Exhibit P17 THE TRUE COPY OF THE LETTER NO.ACB1/1/4444/2017 DATED 18.01.2018 ISSUED BY 1ST RESPONDENT UNIVERSITY REQUESTING CLARIFICATION WITH REGARD TO QUALIFICATIONS REQUIRED TO APPOINT 2N PETITIONER AND THE GOVERNMENT STAND IN THE MATTER. Exhibit P17 A THE TRUE COPY OF THE REPLY TO EXHIBIT P17 ISSUED BY 2ND RESPONDENT VIDE COMMUNICATION NO.F3/193/2018/H.EDN DATED 04.08/2021. Exhibit P18 THE TRUE COPY OF THE UNIVERSITY ORDER NO/.1580/ACB1/2022/MGU DATED 16.02.2022 ISSUED BY 1ST RESPONDENT UNIVERSITY REJECTING GRANT OF APPROVAL TO THE 2ND PETITIONER. Exhibit P19 TRUE COPY OF THE APPLICATION FOR REVIEW OF EXHIBIT P18 ORDER SUBMITTED BY THE PRINCIPAL OF PETITIONER COLLEGE DATED 11.03.2022.**