W.A. No. 1054 of 2018 in W.P(C) 27017/2017

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN MONDAY, THE 4TH DAY OF JUNE 2018 / 14TH JYAISHTA, 1940 ## **W.A.No. 1054 of 2018 IN WPC. 27017/2017** AGAINST THE JUDGMENT IN WP(C) 27017/2017 of HIGH COURT OF KERALA DATED 11-04-2018 ## **APPELLANT(S)/PETITIONERS** . 1 DR. JEE G. AGED 51 YEARS, S/O K.S GOPAKUMARAN NAIR, "LAKSHMI"(H), KIDANGOOR PO, VENGOOR, ANGAMALY, ERNAKULAM-683572. 2 SRI. SUNI K.P AGED 42 YEARS, S/O LATE K.P PAPPU, KALLUNGAL (H), MATTOOR, KALADY, ERNAKULAM-683574. 3 SRI. PRASAD S, AGED 43 YEARS, S/O V.K SEKHARAN NAIR, DEVIKRIPA (H), KIDANGOOR PO, ANGAMALY, ERNAKULAM -683572. BY ADVS.SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB ## **RESPONDENT(S)/RESPONDENTS:** 1. STATE OF KERALA,+ REPRESENTED BY SECRETARY, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM-695001. 2. THE SECRETARY, DEPARTMENT OF COLLEGIATE EDUCATION, 6TH FLOOR, VIKAS BHAVAN, PALAYAM, THIRUVANANTHAPURAM, KERALA-695 033. 3. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS P.O, ATHIRAMPUZHA, KOTTAYAM-686662. 4. SREE SANKARA COLLEGE, MANAGEMENT, KALADY, REPRESENTED BY ITS MANAGING DIRECTOR-683572. 5. THE PRINCIPAL, SREE SANKARA COLLEGE, KALADY-683572. 6. THE UNIVERSITY GRANTS COMMISSION (UGC) BAHADUR SHAH ZAFAR MARG, NEW DELHI-110002, REPRESENTED BY ITS SECRETARY. R6 BY SRI.S.KRISHNAMOORTHY, CGC R1 & R2 BY GOVERNMENT PLEADER SMT. POOJA SURENDRAN R4 & R5 BY SRI.M.N.RADHAKRISHNA MENON R3 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## K. SURENDRA MOHAN & ANNIE JOHN, JJ. - - - - - - - - - - - - - - - - - W.A. No. 1054 of 2018 - - - - - - - - - - - - - - - - - Dated this the 4[th] day of June, 2018 ## JUDGMENT ## Surendra Mohan, J. The petitioners in W.P.(C) No. 27017 of 2017 are before us challenging the judgment dated 11.4.2018 of the learned Single Judge dismissing the same. 2. The appellants are working as Assistant Professors in Sree Sankara College, Kalady which is a College affiliated to the Mahatma Gandhi University. All of them entered service on various dates in the year 2005 and have been continuously working, ever since. The UGC has under the UGC Regulations on Minimum Qualifications for Teachers and other Academic Staff in Universities and Colleges and Other Measures for the Maintenance of the Standards of Higher Education, 2010 ('UGC Regulations, 2010' for short) stipulated guidelines for selection for the Career Advancement W.A.1054/2018 2 Schemes for teachers and other academic staff in Universities and Colleges. As per the Scheme, what is stipulated is a Performance Based Appraisal System (PBAS) where an analysis of the merit and credentials of an incumbent is made on the basis of weightage given to the performance of each teacher based on Academic Performance Indicators (API). Though the Regulations were issued in the year 2010 with a stipulation that the PBAS was to be implemented within a period of three months therefrom, it is pointed out by the appellants that no action was taken for implementing the same by the MG University. Consequently, no system of objectively recording the performance of teachers either in the Colleges or the University was followed. Later on, the system of PBAS was modified by an Amendment in 2013 and still later in the year 2016 by the UGC. It was only thereafter that, the MG University issued Ext.P2 on 23.2.2017 containing the necessary stipulations for implementing the PBAS. The W.A.1054/2018 3 appraisal form that had to be submitted by each incumbent is evidenced by Ext.P3 Pro forma. Since as per Ext.P2, the requirement of satisfying a performance based assessment is given effect to from 2010 onwards, it is contended by the appellants that they are seriously prejudiced. In view of the various parameters on which data is required to be furnished as per Ext.P3, it is contended that, the whole system would be unworkable. Consequently, the appellants would be denied their rightful promotions to the higher posts, such as Associate Professor, Professor and so on. Therefore, they had filed the writ petition seeking the issue of a writ of certiorari, setting aside Ext.P2 to the extent, the API score based PBAS for Career Advancement was given effect to from 2010 onwards. 3. The contentions of the petitioners were opposed by the University by filing a counter affidavit. According to the University, the UGC Scheme had been approved by the W.A.1054/2018 4 Government with effect from 18.9.2010 and the appellants were being paid higher salary under the said Scheme. According to the counter affidavit, the University had adopted the Scheme and notified the requirements of the Scheme by University letter dated 1.8.2011 and that Ext.P2 was only an amendment thereof. Therefore, the contention that the API score based on performance was introduced only in the year 2017 giving retrospective effect from 2010 was denied. Reliance was placed on the dictum of a Full Bench of this Court in Dr. Radhakrishna Pillai v. Travancore Devaswom Board (2016 (2) K.L.T. 245 (245)) to contend that, the provisions of the UGC Regulations were applicable to all the Universities and Colleges without any specific adoption by the University concerned. Therefore, it was contended that the writ petition was only to be dismissed. 4. The learned Single Judge considered the respective contentions, found that the UGC Regulations had W.A.1054/2018 5 been in force from the year 2010 onwards, that the Regulations had been adopted by the University on 1.8.2011 itself and that Ext.P2 was issued only by way of an amendment to the same. The learned Single Judge found no illegality or irregularity in the impugned action implementing the PBAS on the basis of API score and therefore dismissed the writ petition. The aggrieved appellants are before us. 5. According to Adv. Liju V. Stephen, though it is true that the UGC had issued its Regulations in the year 2010, no action was taken thereon in the matter of implementation of PBAS by the University in spite of the stipulation in the Notification itself that such implementation had to be done within a period of three months. In view of the above, nothing was done in the matter of implementation of the PBAS. Therefore, no record of the data that is necessary for conducting an assessment on the basis of API scores was maintained by the teachers or by the College. Even the UGC W.A.1054/2018 6 had amended the Regulations in the years 2013 and 2016. It was only much later that the University had issued Ext.P2 in the year 2017. In view of the above state of affairs, it is contended that, there is no justification for insisting on compliance with Ext.P2 from the year 2010 onwards. It is contended that, implementation of Ext.P2 with effect from 2010 causes a lot of prejudice to the teachers including the petitioners. Therefore, according to the learned counsel, Ext.P2 is liable to be set aside, to the extent it seeks to implement the appraisal system with effect from 2010 onwards. The counsel also points out that, in the matter of promotion as Principal, the Government of Kerala has, recognizing the difficulties involved, issued G.O.(P) No. 10/2017/H.Edn. Dated 19.3.2017, relaxing the requirement of appraisal on the basis of API scores and permitting promotions on the basis of other parameters. In view of the above, it is contended that, the same approach ought to have W.A.1054/2018 7 been adopted in the case of petitioners also. 6. Per contra, Adv.Ashok M. Cherian who appears for the University points out that the PBAS was all along there from 2010 onwards. Therefore, the appellants were all along aware of the fact that the PBAS was applicable for their promotion. Though it is true that, there was some delay on the part of the University in finalizing the proforma Ext.P3, that cannot be taken advantage of by the appellants to contend that they are entitled to promotions without satisfying the said criterion. 7. We have heard the learned Government Pleader as well as Sri. S. Krishnamoorthy, who appears for the University. 8. The UGC Regulations, 2010 had come into force on 18.9.2010. The PBAS on the basis of API scores had been introduced by the said Regulations. As per the UGC Regulations, higher salaries have been granted to persons like W.A.1054/2018 8 appellants and the UGC was of the view that further promotions, would have to be effected only on the basis of the performance of individual teachers. It was with the said objective that PBAS on the basis of API scores was introduced. We find that though UGC Regulations 2010 required the University to implement the Scheme within a period of three months therefrom, Exts.P2 and P3 were issued only in the year 2017. It may be true that, the Principals of Colleges have not maintained the record of the data that is required to be furnished as per Ext.P3. However, since the UGC Regulations have been implemented with effect from 18.9.2010, the appellants, other teachers and the Colleges had sufficient notice regarding the system of appraisal that was contemplated by the UGC. Therefore, it was necessary for the parties to have maintained the necessary records. If at all, any difficulty in the said regard is pointed out to the satisfaction of the University or to the Government, the authorities can W.A.1054/2018 9 certainly relax the requirements as has been done in the case of the promotion of Principals by G.O.(P) No. 10/2017/H.Edn dated 19.3.2017. However, the fact that such relaxation has been granted or the further fact that there was delay on the part of the University in implementing the system cannot be taken advantage of by the petitioners, the Colleges or other teachers to contend that the system should be implemented only from the date of Ext.P2. The appellants are persons who have taken advantage of the UGC Regulations and drawn the higher pay stipulated therein. Therefore, they cannot contend that they should not be burdened with the responsibilities that are attached to the very same Regulations. We have been taken through the data that is required by Ext.P3. We are not satisfied that Ext.P3 contains any requirement which is impossible to be satisfied. 9. We find that the learned Single Judge has approached the issue in the proper perspective and has W.A.1054/2018 10 considered the matter correctly. We do not find any infirmity in the judgment appealed against, warranting an interference therewith in appeal. For the foregoing reasons, this appeal fails and is accordingly dismissed. As a last submission, the counsel for the appellants submits that time limit stipulated by the learned Single Judge for satisfying the requirements of Ext.P3 had already expired. In view of the above, the appellants are granted a month's time from the date of receipt of copy of this judgment to satisfy the requirements of Ext.P3. Sd/- K. SURENDRA MOHAN JUDGE Sd/- ANNIE JOHN JUDGE sb //true copy// P.S. To Judge W.A.1054/2018 11