Sunilkumar P.M. and Alan Kumar A vs State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943** **WP(C) NO. 22594 OF 2014** ## **PETITIONERS:** 1 SUNILKUMAR P.M. AGED 29 YEARS S/O.P.K MOHANAN, PADINJARE VEEDU, BEHIND MINI CIVIL STATION, VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT PIN 689 645 2 ALAN KUMAR A AGED 37 YEARS S/O.ARYASIMHAN, RESIDING AT THAKIDEATHU HOUSE, PRAMADOM, MALLASSERY P.O, PATHANAMTHITTA DISTRICT PIN 689 646 BY ADV SRI.V.SETHUNATH ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION(D) DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001 2 THE DIRECTOR COLLEGIATE EDUCATION,VIKAS BHAVAN, THIRUVANANTHAPURAM PIN 695 033 3 THE DEPUTY DIRECTOR COLLEGIATE EDUCATION,KOTTAYAM PIN 686 001 4 THE MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS P.O, KOTTAYAM, KERALA,INDIA PIN 686 560 5 THE ST.THOMAS COLLEGE, RANNY, REPRESENTED BY ITS PRINCIPAL, PAZHAVANGADY P.O, PIN 689 673 6 THE MANAGER ST.THOMAS COLLEGE, RANNY, PIN 689 673 7 UNIVERSITY GRANTS COMMISSION (UGC) REPRESENTED BY ITS SECRETARY, **WP(C) NO. 22594 OF 2014** **2** BAHADUR SHAH ZAFAR MARG, NEW DELHI PIN 110002 8 ANEESH M ABRAHAM ASST.PROFESSOR(PROVISIONAL) ST THOMAS COLLEGE, RANNY, PIN 689 673 BY ADVS. GOVERNMENT PLEADER SHRI.K.B.GANGESH SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY SRI.BABU VARGHESE SR. SRI.BABY ISSAC ILLICKAL SRI.ISAAC KURUVILLA ILLIKAL SRI.V.NARAYANA SWAMI SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY GP SRI JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 22594 OF 2014** **3** ## **JUDGMENT** Appointment of respondent No.8 has been challenged by the petitioners only on the ground that M.A degree of the petitioner in Gandhian Thought and Development Study cannot be treated as equivalent to M.A. History as appointment was of Assistant Professor. 2. Petitioners two in number were applicants to the post of Assistant Professor in pursuance to the notification dated 23.04.2014 inviting application for filling up the post of Assistant Professor in History. Since they were aspirants and possess bachelor degree in history and also passed NET examination submitted application whereas 8[th] respondent also submitted an application. All the persons were called for an interview but 8[th] respondent was appointed on 01.07.2014. 3. Learned counsel appearing on behalf of the petitioners submitted that the respondent No.8 had M.A.Degree of Gandhian Thought and Development studies, which cannot be equivalent to M.A.History. Thus the equivalency certificate Ext.R8(C) and R6(d) are against the provisions of Section 25 of the Mahatma Gandhi University Act, 1985 as well as against the provisions of clause **WP(C) NO. 22594 OF 2014** **4** 4.4.0 of UGC guidelines. As per clause 4.4.1 in respect of the subjects arts, humanities, sciences, social sciences, commerce, education, languages, law, journalism and mass communication, a person should have a good academic record as defined by the concerned University with atleast 55% marks or an equivalent grade in a point scale wherever grading system is followed at the master’s degree level in a relevant subject from an Indian University or an equivalent degree from an accredited foreign University, as the other conditions of NET or Ph.D are not relevant for the adjudication of the present writ petition. Petitioners were most eligible candidates for being appointed as Assistant Professor as they possess the M.A.Degree viz. 8[th] respondent. 4. On the other hand, Sri.Baby Issac Illikkal, learned counsel appearing on behalf of respondent No.8 raised following objections by countering the argument of petitioners: 1)This writ petition is not maintainable as the petitioners had already participated in the selection process in view of the law laid down by Supreme Court in _**Trivedi Himanshu Ghanshyambhai**_ v. _**Ahmedabad Municipal Corporation & Ors.**_ [2007 (8) SCC 644]. **WP(C) NO. 22594 OF 2014** **5** 2)The expression 'in a relevant subject' cannot be construed to be 'in the relevant subject' as a relevant subject can be any subject. In support of the aforementioned contention, relies upon the division bench judgment of this Court in _**Gijo Ittoop**_ v. _**Kerala University of Fisheries and Others**_ [2018 (4) KHC 285]. 3)There is no challenge to the issuance of the equivalency certificate even if the petitioners did not possess the equivalency certificate. The expression relevant subject would suffice the requirement of eligibility for being appointed to the post of Assistant Professor in history. Respondent No.8 was found more meritorious than the petitioners. 5. Similar in the argument of the counsel representing the management of the college. 6. I have heard the learned counsel for the parties and appraised the paper book. 7. Notification Ext.P1 clearly specifies that applications are invited for the post of Assistant Professor in History and the qualification, age and approval would be as per the Government and University norms. UGC regulation 2010 would be the governing factor in respect of the selection conducted in April **WP(C) NO. 22594 OF 2014** **6** ## 2014. Clauses 4.4.0 and 4.4.1 of UGC regulation reads thus: “4.4.0 ASSISTANT PROFESSOR 4.4.1 Arts, Humanities, Sciences, Social Sciences, Commerce, Education, Languages, Law, Journalism and Mass Communication i. Good academic record as defined by the concerned university with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) at the Master’s Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign university.” 8. On perusal of the language, it is discerned that the expression used is 'Master Degree level in a relevant subject'. Expression 'relevant subject' came to be pondered in the judgment in _**Gijo Ittoop**_ v. _**Kerala University of Fisheries and Others**_ cited on behalf of respondent No.8, wherein in paragraph ## 28, it was observed as under: “28. Now coming to the next question whether the Master's Level degree should be in "a” relevant subject or in "the" relevant subject, at first blush the choice adopted between the use of words "the" and "a" may appear to be inconsequential. However, on a deeper look, it is not so and the distinction in the use of these two words is very significant. This is because if the qualification prescribed is that the Master's Level Degree shall be in the relevant subject, then only the candidates who possess Master's **WP(C) NO. 22594 OF 2014** **7** Degree in that particular subject can be appointed as an Assistant Professor in that discipline. However, when the qualifications prescribe that a person can be appointed as an Assistant Professor, if he has Master's Degree in 'a' relevant subject, then a candidate with Master's degree in any one of the relevant or constituent subjects of a discipline would obtain the locus to claim appointment.” 9. Considering the aforementioned language the contention of the affected parties with regard to the word particular subject was rejected. Thus the argument of learned counsel representing the petitioners that a candidate must have a degree in History is wholly misplaced and hereby rejected. 10. Needless to say, it is also settled law that the person who has participated in the selection process cannot turn around and challenge the selection of other candidates as the remedy would have been immediately on acquiring knowledge of the fact as stated in the writ petition, as reiterated from the findings in the judgment of Supreme Court in _**Trivedi Himanshu Ghanshyambhai**_ v. _**Ahmedabad Municipal Corporation & Ors.**_ (supra). 11. At this stage, attention of this Court was drawn to an order dated 06.04.2015 whereby University was given a chance **WP(C) NO. 22594 OF 2014** **8** to entertain the objection of the petitioners with regard to the equivalency certificate. Vide decision dated 01.03.2016 Ext.R4(c) University rejected the objection of the petitioners by holding that the equivalency certificate was valid till 19.12.2015. Though attempt has been made that the decision was taken only on 19.12.2015, therefore it became valid only from that date, that argument in my view is wholly preposterous and must fail as the contents of the decision do not suggest such logic. 12. Since there is no challenge to the equivalency certificate petitioners cannot rely upon the provisions of Section 25 of the 1985 Act. The contents of the letter dated 01.03.2016 reads thus: “Sri. Anish M Abraham with MA degree in Gandhian Thought and Development Studies from Mahatma Gandhi University and NET in Buddhist, Jaina, Gandhian and Peace Studies was appointed as Assistant Professor in History w.e.f 01.07.2014 FN at St Thomas College, Ranni. The Principal of the College forwarded the proposal for approval of his appointment on 07.07.2014 along with an equivalency certificate dtd 15.07.2009 issued by the University whereby MA in Gandhian Thought and Development Studies (Regular) of Mahatma Gandhi University was equated to MA in History of Mahatma Gandhi University. Mean while Sri. Sunilkumar PM, placed third in the rank list from which Sri Anish M Abraham was appointed, and **WP(C) NO. 22594 OF 2014** **9** another filed Writ Petition No 22594/14 before the Hon'ble High Court of Kerala challenging the above appointment alleging that Sri. Anish M Abraham passed his MA degree not in History but in Gandhian Thought and Development Studies and hence was not qualified. The Hon'ble High Court of Kerala by its interim order in WP(C) No 22594/14 dtd 06.04.2015 pronounced that the University is at liberty to take a decision after hearing the objection of the petitioners within a period of one month. Accordingly a hearing was held on 04.05.2015. The Hon'ble Vice Chancellor directed the matter to be placed before the academic council. The Academic Council vide item no 55/Ac.14/892 on 19.12.2015 resolved to approve MA degree in Gandhian Thought and Development Studies offered by Mahatma Gandhi University being recognized and equivalent to MA degree in History offered by this University for higher studies and employment purposes till 19.12.2015. The Syndicate approved the same vide reference read above and Orders are issued accordingly.” ## As an upshot of my findings, I am of the view there is no merit in the writ petition. Accordingly, dismissed. **Sd/-** ## **AMIT RAWAL** ## **JUDGE** nak **WP(C) NO. 22594 OF 2014** **10** ## **APPENDIX OF WP(C) 22594/2014** PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY NEWS PAPER PUBLICATION DATED 23-04-2014 APPEARED IN THE 'MALAYALA MANORAMA INVITING AP[PLICATION TO VARIOUS POST INCLUDING THE POST OF ASST.PROFESSOR IN HISTORY EXHIBIT P2 THE TRUE COPIES OF THE CERTIFICATES OF THE PETITIONERS(BACHLEOR'S DEGREE IN HISTPORY,POST GRADUATION IN HISTORY AND PASSED THE NET EXAM IN HISTORY) EXHIBIT P3 THE TRUE COPY OF THE SYLLABUS OF HISTORY(CODE NO 06) ISSUED BY THE U.G.C EXHIBIT P4 THE TRUE COPY OF THE SYLLABUS OF GANDHIAN STUDIES (CODE NO 60) ISSUED BY THE U.G.C EXHIBIT P4 EXHIBIT P5 THE TRUE COPY OF THE NET EXAM SYLLABUS FOR ALL SUBJECTS EXHIBIT P6 THE TRUE COPY OF THE RELEVANT EXTRACT FROM THE ADMISSION BROUCHURE FOR THE SUBJECT HISTORY ISSUED BY THE M.G UNIVERSITY EXHIBIT P7 THE TRUE COPY OF THE RELEVANT EXTRACT FROM THE ADMISSION BROUCHURE FOR THE SUBJECT GANDHIAN STUDIES ISSUED BY THE M.G UNIVERSITY EXHIBIT P8 TRUE COPY OF THE NOTIFICATION NO F- 3/2009 DATED 30-06-2009 OF THE UGC REGULATIONS SHOWING THE MINIMUM QUALIFICATIONS FOR APPOINTMENT TO VARIOUS POST,INCLUDING SPOCIAL SCIENCE EXHIBIT P9 THE TRUE COPY OF THE RODER NO 4233/L/ACAD/22011 DATED 1-08-2011 ISSUED BY THE M.G UNIVERSITY **WP(C) NO. 22594 OF 2014** **11** |RESPONDENT EXHIBITS|| |---|---| |Exhibit R8(A)|PHOTOCOPY OF THE APPOINTMENT ORDER DATED<br>01/07/2014 OF THE 8TH RESPONDENT.| |Exhibit R8(B)|PHOTOCOPY OF THE MA DEGREE CERTIFICATE<br>OF THE 8TH RESPONDENT DATED 13/12/2014.| |Exhibit R8(C)|PHOTOCOPY OF THE EQUIVALENCY CERTIFICATE| ||ISSUED BY THE 4TH RESPONDENT DATED| ||15/07/2009.| |Exhibit R8(D)|PHOTOCOPY OF THE EQUIVALENCY CERTIFICATE| ||ISSUED TO THE 8TH RESPONDENT DATED| ||10/02/2004.| |Exhibit R8(E)|PHOTOCOPY OF THE NET CERTIFICATE DATED| ||07/07/2004ISSUED BY THE UGC TO THE 8TH| ||RESPONDENT.| |Exhibit R8(F)|PHOTOCOPY OF THE EQUIVALENCY CERTIFICATE| ||DATED 23/03/2009 ISSUED BY THE 4TH| ||RESPONDENT.| |Exhibit R8(G)|PHOTOCOPY OF THE APPROVAL ORDER OF SRI.| ||LAIJU VARGHESE.| |Exhibit R8(H)|PHOTOCOPY OF THE CERTIFICATE CONFERRING| ||MASTER OF ARTS IN GANDHIAN THOUGHT AND| ||DEVELOPMENT STUDIES TO SRI. LAIJU| ||VARGHESE.| |Exhibit R8(I)|PHOTOCOPY OF THE APPROVAL ORDER OF DR.| ||AJIS BEN MATHEWS.| |Exhibit R8(J)|PHOTOCOPY OF THE COMMUNICATION DATED| ||29/10/2014 OF THE PRINCIPAL, BCM| ||COLLEGE.| |Exhibit R8(K)|PHOTOCOPY OF THE MA DEGREE CERTIFICATE| ||DATED 26/04/2006 ISSUED TO SMT. ANITHA| ||K. BABU BY THE 4TH RESPONDENT.| |Exhibit R8(L)|PHOTOCOPY OF THE APPROVAL ORDER ISSUED| ||BY THE 4TH RESPONDENT DATED 21/10/2009| ||TO SMT. ANITHA K. BABU.| |Exhibit R8(M)|PHOTOCOPY OF THE ACQUITTANCE ROLL DATED| ||29/09/2011 OF SMT. ANITHA K. BABU.| |Exhibit R6(A)|TRUE COPY OF THE MINUTES OF THE| ||STATUTORY SELECTION COMMITTEE.| |Exhibit R6(B)|TRUE COPY OF THE REPORT OF THE SUBJECT| ||EXPERT REGARDING THE INTERVIEW.| |Exhibit R6(C)|TRUE COPY OF THE DEGREE CERTIFICATE| ||ISSUED BY THE RESPONDENT UNIVERSITY.| **WP(C) NO. 22594 OF 2014** **12** |Exhibit R6(D)|TRUE COPY OF THE EQUIVALENCY CERTIFICATE| |---|---| ||NO. 2/6923/2009 DATED 15/07/2009 ISSUED| ||TO THE 8TH RESPONDENT.| |Exhibit R6(E)|TRUE COPY OF THE INFORMATION FURNISHED| ||UNDER RIGHT TO INFORMATION ACT BY THE| ||PRINCIPAL, BCM COLLEGE, KOTTAYAM.| |Exhibit R6(F)|TRUE COPY OF THE APPROVAL ORDER NO.| ||603/B1/2010/ACAD. DATED 02/02/2010.| |Exhibit R6(G)|TRUE COPY OF THE INFORMATION FURNISHED| ||UNDER THE RIGHT TO INFORMATION ACT BY| ||THE PRINCIPAL, ST. GEORGE COLLEGE,| ||ARUVITHURA.| |Exhibit R6(H)|TRUE COPY OF THE APPROVAL ORDER| ||NO.4007/BII/2011/ACAD. DATED 22/07/2011.| |Exhibit R4(A)|TRUE COPY OF U.O| ||NO.2060/AC.V/I/13088/GS/98 DATED| ||15.05.2008| |Exhibit R4(B)|TRUE COPY OF U.O4811/AC.AV/2008 DATED| ||13.11.2008| |Exhibit R4(C)|TRUE COPY OF THE UO NO.1309/B1/ACAD/2016| ||P.D.HILLS, DATED 01/03/2016.|