University Grants Commission v. Manager, St. Joseph's College, Irinjalakuda & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MRS. JUSTICE SHIRCY V. MONDAY, THE 24TH DAY OF OCTOBER 2016/2ND KARTHIKA, 1938 WA.No. 2136 of 2015 IN WP(C).7169/2011 ------------------------------------------AGAINST THE JUDGMENT IN WP(C) 7169/2011 of HIGH COURT OF KERALA DATED 27-02-2015 --------- APPELLANT/2ND RESPONDENT: ----------------------------------- THE UNIVERSITY GRANTS COMMISSION REPRESENTED BY ITS SECETARY, BAHADUR SHAH ZAFAR MARG, NEW DELHI 110002 BY ADV. SRI.S.KRISHNAMOORTHY, CGC RESPONDENTS/PETITIONERS 1 AND 2 AND RESPONDENTS 1,3 & 4: --------------------------------------------------------------------------- 1. THE MANAGER, ST. JOSEPH'S COLLEGE IRINJALAKUDA. 2. SIJI P.D LECTURER (RE-DESIGNATED AS ASST. PROFESSOR) IN COMPUTER SCIENCE, ST.JOSEPH'S COLLEGE, IRINJALAKUDA-680121. 3. THE UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O. - 673 635. 4. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT,DEPARTMENT OF HIGHER EDUCATION, MINISTRY OF HUMAN RESOURCES DEVELOPMENT, NEW DELHI - 110001. 5. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THRISSUR-680001. R4 BY ADV. SRI.S.VAIDYANATHAN, CGC R1&2 BY ADV. SRI.C.V.ALEXANDER R1&2 BY ADV. SRI.V.NARAYANA SWAMI R1 & 2 BY ADV. SRI.BABU VARGHESE (SR.) R4 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R5 BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL R3 BY SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERSTY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & SHIRCY V., JJ.** ------------------------------------------------ W. A. No.2136 of 2015 -----------------------------------------------Dated this the 24[th] day of October, 2016 ## **JUDGMENT** ## **Antony Dominic, J.** 1. aThe University Grants Commission, for short, the “UGC”, has filed this appeal against the judgment in W.P.(C) No.7169 of 2011. By the judgment under appeal, the learned single Judge has directed that the appointment of the second respondent be approved, with effect from the date of her appointment and consequential benefits shall also be disbursed to her. According to the UGC, the second respondent does not possess NET qualification, a mandatory qualification in terms of the UGC regulations and that therefore, the learned single Judge ought not have issued the directions as stated above. 2. We heard the learned Standing Counsel for the appellant UGC, learned senior counsel appearing for -2- W. A. No.2136 of 2015 respondents 1 and 2, learned Government Pleader and the respective Standing Counsel appearing for the University and the Union of India. 3. On facts, it is sufficient to notice that admittedly the second respondent does not possess NET qualification. However, when the notification was issued by the College, for appointment to the post of Lecturer in Computer Science, which did not prescribe NET as a qualification, the second respondent also submitted her application and the statutory Selection Committee recommended her for appointment as per Ext.P1 proceedings. She was eventually appointed by the management by Ext.P2 proceedings dated 29.06.2009. Subsequently, the UGC itself exempted her and some others from the requirement of possessing NET qualification by Ext.P4(a) proceedings dated 16.03.2010. However, the decision of the UGC to grant individual exemptions was withdrawn by the UGC itself by Ext.P6 order -3- W. A. No.2136 of 2015 dated 03.06.2010. In the aforesaid circumstances, the appointment of the second respondent could not be approved by the University. It was therefore, that the respondents 1 and 2 filed the writ petition seeking to impugn Ext.P6 and to direct approval of the appointment of the second respondent. It is this writ petition which was disposed of by the learned single Judge, holding that since the withdrawal of exemption was prospective from 03.06.2010, the second respondent was entitled to approval of her appointment. The learned single Judge also ordered that consequential benefits shall also be disbursed. On facts it is also stated that in compliance with the judgment under appeal, by its order dated 11.06.2015, the University has conveyed its decision to approve the appointment of the second respondent with effect from 29.06.2009, the date of her appointment. It is this judgment which is under challenge in this appeal. -4- W. A. No.2136 of 2015 4. Although according to the learned counsel for the appellant, having regard to the principles laid down by the Apex Court in its judgment in **P. Suseela v. University Grants Commission [(2015) 8 SCC 129]** , the judgment under appeal is untenable, this contention was sought to be resisted by the counsel for the writ petitioners/respondents 1 and 2 herein, by contending that the second respondent had applied in response to the notification disclosing her qualifications and was appointed on 29.06.2009. It is stated that having regard to the fact that subsequently the UGC itself has granted exemption as per Ext.P4(a) proceedings, the second respondent was entitled to the benefit thereof. It was contended that the withdrawal of the exemption which was effected only as per Ext.P6 could not affect the vested rights of the second respondent. He also referred to us Exts.P7 to P10 to contend that in similar cases UGC has granted the benefit of exemption and approval. W. A. No.2136 of 2015 -5- 5. We have considered the submissions made. First of all, we do find that this is a case where the appointee is continuing in service from 29.06.2009 and in her own case, the UGC had granted exemption as per Ext.P4(a) dated 16.03.2010. Even if the UGC has withdrawn such exemption, such withdrawal can operate only prospectively. Therefore, the vested right, if any, that was granted by Ext.P4(a), does not got washed out just because the general order of withdrawal that has been issued by the UGC subsequently. 6. Even that apart, we find that the other beneficiaries of Ext.P4(a) had secured a similar judgment from this Court in W.P.(C) No.33552 of 2009, which was disposed of by judgment dated 12.03.2015. Against that judgment, the UGC has not chosen to file any appeal and that the judgment has become final and binding on the UGC. In such a situation, there is no reason for the UGC to take a W. A. No.2136 of 2015 -6- different stand insofar as the second respondent alone is concerned. 7. That apart, this Court has passed order dated 11.01.2016 requiring the University to file an affidavit explaining the matters mentioned therein. This order reads as follows: “ 1.Respondents 1 and 2 herein filed the writ petition mainly aggrieved by Ext.P6(a), whereby, the request for approval of the appointment of the second respondent was rejected by the University relying on Ext.P6, by which, the UGC withdrew exemption from NET conveyed to the University as per Ext.P4(a). In this appeal filed aggrieved by the judgment of the learned single Judge allowing the writ petition, referring to Ext.R2(c), the communication of the UGC dated 8.7.2010, it is contended by the counsel for the appellant that there were 3413 beneficiaries of the exemption conveyed as per Ext.P4(a) and that the services of all the candidates have been dispensed with for want of NET. Reliance is also placed on the judgment in P.Suseela v. University Grants Commission [(2015) 8 SCC 129], where, the decision of the UGC withdrawing the exemption has been upheld by the Apex Court. However, from the materials available, the manner in which the cases of the beneficiaries of the exemption have been dealt with, by termination from service or otherwise, is not clear. Therefore, we direct the appellant to file an affidavit before this Court, explaining the manner in which the cases of the beneficiaries of the exemption from NET granted as per the UGC's W. A. No.2136 of 2015 -7- decision in the 168[th] meeting held on 23.2.2010 has been dealt with. Post the appeal after six weeks at the request of the counsel for the appellant.” In compliance with the order quoted above, the UGC has not chosen to file any affidavit till this date. 8. For all these reasons and considering the peculiar facts of this case, we do not think that this is a fit case for upsetting the judgment of the learned single Judge. Appeal fails and is dismissed accordingly. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **SHIRCY V. JUDGE** kns/- //TRUE COPY// P.S. TO JUDGE W. A. No.2136 of 2015 -8- W. A. No.2136 of 2015 -9- ANTONY DOMINIC & A. HARIPRASAD, JJ. ----------------------------------W.A.No.2136 of 2015 ----------------------------------Dated this the 11[th] day of January, 2016 ## O R D E R ## Antony Dominic, J. Respondents 1 and 2 herein filed the writ petition mainly aggrieved by Ext.P6(a), whereby, the request for approval of the appointment of the second respondent was rejected by the University relying on Ext.P6, by which, the UGC withdrew exemption from NET conveyed to the University as per Ext.P4(a). In this appeal filed aggrieved by the judgment of the learned single Judge allowing the writ petition, referring to Ext.R2(c), the communication of the UGC dated 8.7.2010, it is contended by the counsel for the appellant that there were 3413 beneficiaries of the exemption conveyed as per Ext.P4(a) and that the services of all the candidates have been dispensed with for want of NET. Reliance is also placed on the judgment in P.Suseela v. University Grants Commission [(2015) 8 SCC 129], where, the decision of W. A. No.2136 of 2015 -10- the UGC withdrawing the exemption has been upheld by the Apex Court. However, from the materials available, the manner in which the cases of the beneficiaries of the exemption have been dealt with, by termination from service or otherwise, is not clear. Therefore, we direct the appellant to file an affidavit before this Court, explaining the manner in which the cases of the beneficiaries of the exemption from NET granted as per the UGC's decision in the 168[th] meeting held on 23.2.2010 has been dealt with. Post the appeal after six weeks at the request of the counsel for the appellant. ANTONY DOMINIC, Judge. A. HARIPRASAD, Judge. kkb.