University Grants Commission v Rejina P.V and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941** **WA. No.1990 of 2017** **AGAINST THE JUDGMENT IN WPC NO.22494/2010 OF THE HIGH COURT OF KERALA DATED 24-07-2017** ## **APPELLANT/2ND RESPONDENT:** **UNIVERSITY GRANTS COMMISSION BAHADUR SHAH ZAFAR MARG, NEW DELHI - 110 002, REPRESENTED BY ITS SECRETARY.** **BY ADV. SRI.S.KRISHNAMOORTHY, CGC** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1,3 TO 7:** - **1 REJINA P.V, LECTURER IN COMPUTER SCIENCE, COOPERATIVE ARTS & SCIENCE COLLEGE, MADAYI, RESIDING AT SREEBHAVAN, GANDHI ROAD, MATTANNUR P.O., KANNUR DISTRICT-670702.** - **2 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HUMAN RESOURCES DEVELOPMENT, DEPARTMENT OF HIGHER EDUCATION, NEW DELHI-110002.** - **3 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695001.** - **4 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM-695001. [DELETED]** - **5 KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR-670567, REPRESENTED BY ITS REGISTRAR.** - **6 COOPERATIVE ARTS SCIENCE COLLEGE, MADAYI, KANNUR DISTRICT 670702, REPRESENTED BY ITS PRINCIPAL.** WA. Nos.1990 & 2072 of 2017 2 ## **7 PAYYANNUR CO-OPERATIVE EDUCATIONAL SOCIETY PAYYANNUR-670307, KANNUR DISTRICT, REPRESENTED BY ITS PRESIDENT.** **CAUSE TITLE CORRECTED AS PER ORDER DATED 06.10.2017 IN IA NO.1218/17 AS FOLLOWS:** - **1 REJINA P.V, LECTURER IN COMPUTER SCIENCE, COOPERATIVE ARTS & SCIENCE COLLEGE, MADAYI, RESIDING AT SREEBHAVAN, GANDHI ROAD, MATTANNUR P.O., KANNUR DISTRICT-670702.** - **2 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HUMAN RESOURCES DEVELOPMENT, DEPARTMENT OF HIGHER EDUCATION, NEW DELHI-110002.** - **3 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM-695001.** - **4 KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR-670567, REPRESENTED BY ITS REGISTRAR.** - **5 COOPERATIVE ARTS SCIENCE COLLEGE, MADAYI, KANNUR DISTRICT 670702, REPRESENTED BY ITS PRINCIPAL.** - **6 PAYYANNUR CO-OPERATIVE EDUCATIONAL SOCIETY PAYYANNUR-670307, KANNUR DISTRICT, REPRESENTED BY ITS PRESIDENT.** **[CAUSE TITLE CORRECTED AS PER ORDER DATED 06.10.2017 IN IA NO.1218/17.] BY ADVS. SRI.C.K.KARUNAKARAN SRI.M.N.MANMADAN, CGC SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY SRI.M.N.MANMADAN CGC SRI.A.J. VARGHESE, SR. GP** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04.07.2019, ALONG WITH WA.2072/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** WA. Nos.1990 & 2072 of 2017 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 04TH DAY OF JULY 2019 / 13TH ASHADHA, 1941** **WA.No.2072 of 2017** **AGAINST THE JUDGMENT IN WPC NO.21902/2010 of HIGH COURT OF KERALA DATED 24-07-2017** ## **APPELLANTS/2ND RESPONDENT:** **UNIVERSITY GRANTS COMMISSION BAHADUR SHAH ZAFAR MARG,NEW DELHI 110 002, REPRESENTED BY ITS SECRETARY** **BY ADV. SRI.S.KRISHNAMOORTHY, CGC** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1,3 TO 6:** |**1**|**JISHA T.E**| |---|---| ||**LECTURER IN COMPUTER SCIENCE,**| ||**MARY MATHA ARTS & SCIENCE COLLEGE, VENOM P.O,**| ||**MANANTHAVADY, WAYANAD 670 645**| |**2**|**UNION OF INDIA**| ||**REPRESENTED BY ITS SECRETARY**| ||**MINISTRY OF HUMAN RESOURCES DEVELOPMENT,**| ||**DEPARTMENT OF HIGHER EDUCATION,NEW DELHI -110 002**| |**3**|**STATE OF KERALA**| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT**| ||**HIGHER EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT,**| ||**TRIVANDRUM 695 001**| |**4**|**KANNUR UNIVERSITY**| ||**MANGATTUPARAMBA, KANNUR 670 567**| ||**REPRESENTED BY ITS SECRETARY**| WA. Nos.1990 & 2072 of 2017 4 **5 THE REGISTRAR KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR 670 567.** **6 THE PRINCIPAL MARY MATHA ARTS & SCIENCE COLLEGE, VENOM, MANANTHAVADY, WAYANAD 676 645** **BY ADVS. SRI.ELVIN PETER P.J. SRI.K.SHRI HARI RAO, CGC SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY SRI.K.R.GANESH SRI.T.G.SUNIL (PRANAVAM) SRI.A.J. VARGHESE, SR. GP** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04.07.2019, ALONG WITH WA.1990/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** WA. Nos.1990 & 2072 of 2017 5 ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The University Grants Commission [UGC] is before us challenging the judgment of the learned Single Judge specifically pointing out that it would go against the binding precedent in** _**P. Suseela v. University Grants Commission and Others [(2015) 8 SCC 129]**_ **.** **2. On facts it is to be noticed that the 1st respondent in W.A. No.1990 of 2017 was appointed on 27.03.2007 and was granted an exemption on 16.03.2010, as is seen from Ext.P8. The 1st respondent in W.A. No.2072 of 2017 was appointed on 26.11.2001, long earlier to the respondent in the other writ appeal. There, the application for exemption from National Eligibility Test [NET] was submitted by the University as per Ext.P4 dated 11.04.2003. However, no orders were passed. The 1[st]** WA. Nos.1990 & 2072 of 2017 6 **respondent in both the appeals are the writ petitioners. The respondent, who was granted exemption on 16.03.2010, was aggrieved with Ext.P9 dated 03.06.2010, which withdrew the exemption granted on the basis of Ext.P12 decision of the Government of India dated 30.03.2010. The other respondent claimed exemption on the basis of the regulations as existed prior to the 2009 Regulations.** **3. The learned Standing Counsel for the UGC specifically points out that Ext.P10 in WP(C) No.22494 of 2010, from which W.A. No.1990 of 2017 arises, was the specific order, which was** **referred to by the Hon'ble Supreme Court in paragraph 6 of the cited decision. It is also pointed out that the challenge therein was to the cancellation made by the UGC as per Ext.P9, of the exemptions made in the 468th meeting of the Commission dated 23.02.2010. The exemption relied on by one of the writ petitioners was one among** WA. Nos.1990 & 2072 of 2017 7 **the many granted in that meeting. In such circumstances, the learned Single Judge could not have gone against the binding precedent of the Hon'ble Supreme Court, is the specific contention raised.** **4. We will first deal with the case projected in W.A. No.1990 of 2017, wherein an exemption was granted as per Ext.P8, which also indicates that it was one granted in the 468th meeting on 23.02.2010 of the UGC.** _**P. Suseela**_ **[cited supra] considered the question whether the UGC could have provided for an exemption from NET qualification insofar as the Ph.D holders, who obtained such qualification prior to 2009. The UGC by its Regulations of 1991, superseding that of 1982, first provided for NET as an eligibility criteria. This continued upto 2008, with an exemption from NET qualification enabled, for persons with Ph.D degrees and also when there were no sufficient hands having such** WA. Nos.1990 & 2072 of 2017 8 **qualification turning up for the selection or when there is no NET Examination conducted in a particular subject. University Grants Commission [Minimum Qualifications Required for the Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to It] Regulations, 2009 [for brevity, 'the Regulations of 2009] made mandatory, on directions from the Central Government, NET qualification. But, despite the clear directives, UGC also provided an exemption in so far as those who acquired Ph.D prior to 2009. The Central Government again directed the UGC not to grant any such exemption.** **5. The issue before the Supreme Court in the cited decision was as to whether the UGC was bound by the directives of the Central Government and even if found to be so; whether the prescription could be retrospective. The Hon'ble Supreme Court found that the UGC Act, 1956 made it mandatory for the UGC, to comply with the** WA. Nos.1990 & 2072 of 2017 9 **directives of the Central Government, issued under Section 20. On the question of retrospective operation, the Court drew a distinction between existing right and vested right to hold that the Ph.D holders who obtained their doctorate degrees before 2009, had before the Regulations of 2009 an existing right to be exempted from NET qualification, which no longer existed after the Regulations of 2009 came into force. They were held to have no vested right to be conferred with the exemption after NET was made mandatory as directed by the Central Government.** **6. We should pertinently notice that the** **exemption asserted by the petitioner was not by way of acquisition of Ph.D degree prior to 2009 or when they were selected and appointed. It was for reason of there being none with NET qualification turning up for the selection. This exemption was not available in the Regulations of** WA. Nos.1990 & 2072 of 2017 10 **2009 but was available prior to that and at the time of selection and appointment of the writ petitioners.** **7. In the present case both the respondents were persons having Post Graduate qualification in Computer Science. Admitted is the position that during the selection process of both the respondents, there was none who had a NET qualification. It was hence, the appellants were appointed to the respective posts and the University also sought for exemption as per the Regulations that existed prior to 2009. In the meanwhile, the Government of India issued a direction on 12.04.2008 referred to in paragraph 4 of the judgment of the Hon'ble Supreme Court. The Regulations were directed to be amended prescribing qualification in NET/SLET to be generally compulsory for all persons appointed in teaching positions of Lecturer/Assistant Professor in higher education.** WA. Nos.1990 & 2072 of 2017 11 **8. The UGC promulgated the Regulations of 2009, as seen from paragraph 5 prescribing NET/ SLET to be the minimum eligibility condition for recruitment to teaching positions, but provided an exemption to those persons who were awarded with Ph.D prior to 2009, ie. prior to the coming into force of the Regulations of 2009. The Central Government was not happy with the proviso and hence issued another directive dated 30.03.2010, which is extracted in paragraph 6 of the judgment, which we also extract here under:** _**“The Ministry of Human Resource Development issued another order dated 30.03.2010 under Section 20 of the University Grants Commission Act, 1956 directing UGC as follows:**_ _**(i) That UGC shall not take up specific cases for exemption from the application of the 2009 NET Regulations after the said Regulations have come into force, for either specific persons or for a specific University/Institution/College from the application of the UGC (Minimum**_ WA. Nos.1990 & 2072 of 2017 12 _**Qualifications for Appointment and Career Advancement of Teachers in Universities and Colleges Affiliated to It) (Third Amendment) Regulations, 2009 for appointment as Lecturer in Universities/ Colleges/Institutions;**_ _**(ii) that appropriate amendment to the second proviso to Clause (2) of the UGC 2000 Regulations shall be made by UGC to give full effect to the policy directions issued by the Central Government dated 12.11.2008, within 30 days from the date of issue of this direction; and**_ _**(iii) that the decision taken by UGC in its 468[th] meeting held on 23.02.2010 vide agenda Items 6.04 and 6.05 to grant specific exemptions from the applicability of NET shall not be implemented as being contrary to national policy.**_ _**The abovesaid directions shall be implemented by UGC forthwith.”**_ **9. The Hon'ble Supreme Court, as we noticed, found that there was no vested right on persons who obtained Ph.D Degree prior to the Regulations of 2009,for an exemption from NET** WA. Nos.1990 & 2072 of 2017 13 **qualification after 2009. However, we do not see any dictum laid down by the Hon'ble Supreme Court that the persons who were so granted an exemption or who were eligible for such exemption and appointed prior to the coming into force of the Regulations of 2009 would also be not entitled for the exemption as per the earlier Regulations. In fact, the Hon'ble Supreme Court held in paragraph 16 of the cited case: “** _**A vested right would arise only if any of the appellants before us had actually been appointed to the post of Lecturers/Assistant Professors**_ **”(sic). The case of the appellants would fall under this category.** **10. We immediately reiterate that the exemption claimed by the respondents are not on account of their Ph.D qualification, which they lacked at the time of selection. One, going by the averments in the writ petition, had an MPhil. qualification and the other was on the verge of acquiring the same. The respondents claim** WA. Nos.1990 & 2072 of 2017 14 **exemption on the ground of there being no NET qualified person at the time of selection; which situation was permitted exemption by the Regulations in force at the time of their appointment.** **11. We also notice that the two Central Government directives, which the Hon'ble Supreme Court noticed were issued on 12.11.2008 and 30.03.2010. Both the appellants herein were appointed prior to that. The person who was appointed in 2007, the 1st respondent in W.A. No.1990 of 2017, was appointed just prior to the first directive of the Central Government on** **30.11.2008, pursuant to which the Regulations were amended in 2009. As far as the respondent in W.A. No.2072 of 2017 is concerned, her appointment was long prior, in the year 2001. However, the application by the University for exemption, remained unattended by the UGC. The UGC does not deny the receipt of the application** WA. Nos.1990 & 2072 of 2017 15 ## **for exemption.** ## **12. In this context we also notice** **paragraph (i) of the above extracted notification, which directs the UGC not to take up specific cases for exemption from the application of the 2009 NET Regulations** _**after the said regulations**_ **have come into force for either specific persons or for a specific University/ Institution/College from the application of UGC Regulations of 2009. (** _**underlining by us for emphasis**_ **). Hence the exemption was prohibited only for persons who were appointed after the Regulations of 2009 came into effect; which was emphasized by the Hon'ble Supreme Court also.** **13. True, the exemption application of** **the 1st respondent in W.A. No.1990 of 2017, was taken up after the Regulations came into force. As submitted by the learned Standing Counsel for the University almost 2000 applications were considered in the 468th meeting, all of which** WA. Nos.1990 & 2072 of 2017 16 **stood cancelled by Ext.P9 dated 03.06.2010. However, we do not think that the exemption granted to the 1st respondent in W.A. No.1990 of 2017 could have been withdrawn, merely because it was granted after the directive of the Central Government, especially since her appointment was prior to even the directive of 2008, which prompted the amendment of the Regulations in 2009. The Hon'ble Supreme Court also found the appointees prior to the Regulations of 2009, to have a vested right to be continued** _**de hors**_ **the minimum qualification requirement brought in by that notification.** **14. On facts we find that the exemption had to be considered on the basis of the Regulations as existed prior to the Regulations of 2009 coming into force, since the 1st respondent in W.A. 19990 of 2017, is concerned, who was appointed prior to such regulations coming into force. In such circumstances, we do** WA. Nos.1990 & 2072 of 2017 17 **not think that any interference is warranted to the judgment as assailed in W.A. No.1990 of 2017.** **15. Now we come to W.A. No.2072 of 2017, wherein the learned Standing Counsel contends that as far as the 1st respondent therein is concerned, there could be no exemption since there is no provision available in the regulations for exemption as of now. The UGC was directed to consider the exemption, by the learned Single Judge, which is practically impossible of compliance. We noticed that the application submitted at Ext.P4 remained unattended by the UGC. There is no specific denial of the receipt of the application for exemption by the UGC.** **16. We also notice that the exemption was sought for under the regulations, which were in force, as on the date of appointment of the 1st respondent, ie. on 26.11.2001. There is also the compelling factor that the UGC, in identical** WA. Nos.1990 & 2072 of 2017 18 **cases, had granted exemption, as is evident from Ext.P7-series of documents. For all the above mentioned compelling reasons, we are of the opinion that the 1st respondent also has to be granted exemption and in the circumstances of the practical impossibility as pointed out by the learned Standing Counsel, we find it appropriate that the exemption in the case of the 1st respondent be deemed under our orders, based on the regulations at the time of his appointment, similar to Ext. P7 series of orders by the UGC itself. The Writ Appeals would stand dismissed. There is no order as to costs.** **Sd/-** ## **K. VINOD CHANDRAN, JUDGE.** **Sd/-** ## **V.G. ARUN, JUDGE.** **sp/09/07/19** //True Copy// P.A. To Judge