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2001 DIGILAW 633 (KER)

Paul K. Mathew v. Mahatma Gandhi University

2001-11-07

K.A.ABDUL GAFOOR

body2001
Judgment :- K.A. Abdul Gafoor, J. The challenge in this original petition is mainly against a 'note' in Ext.P5 which reads as follows: " In the case of teachers who are in permanent service as on the date of coming into force of this regulation, they shall be deemed to be qualified for promotions to Assistant Professor/Professor, if they did possess the minimum qualifications prescribed by the Regulations in force at the time of their appointment". According to the petitioner, if this note is implemented, person without doctorate degree would be promoted as Professors and will be placed over the petitioner, because Ext.P5 dated 14/01/2000 has retrospectivity with effect from 25.11. 1994. I need not, now, go into the challenge against the note at the instance of this petitioner as it will, in no way, adversely affect him as apprehended. If a statute does not adversely affect him, none of his rights are affected even if it continues to be in force. 2. Ext.P5 is an amendment issued to statutory regulations prescribing qualifications of teachers. The power to issue regulations is enjoined on the Academic Council, as per Section 25 of the Mahatma Gandhi University Act. It can be issued only prospectively because there is no power to issue regulations retrospectively. The statute does not empower to amend or modify the regulation retrospectively. So an amendment can be issued only prospectively. 3. Regulations of amendments thus is to be issued by the Academic Council as per Section 25 of the Mahatma Gandhi University Act. Academic Council can issue such regulations only prospectively. When the academic council is not constituted nor in session, as per Section 10(17), the Vice Chancellor is empowered to issue regulations. 4. Ext. P5 is issued under Section 10 (17) of the Mahatma Gandhi University Act by the Vice Chancellor. Naturally while exercising that power, the Vice Chancellor cannot have more power than that is vested with the Academic Council. When the Academic Council can only issue regulations prospectively, the Vice Chancellor can also exercise the powers under Section 10 (17) of the Act for amending or modifying the regulation only prospectively. Necessarily, the retrospectivity given in Ext.P5 is violative of Sections 25 and 10 (17) of the Act. When the Academic Council can only issue regulations prospectively, the Vice Chancellor can also exercise the powers under Section 10 (17) of the Act for amending or modifying the regulation only prospectively. Necessarily, the retrospectivity given in Ext.P5 is violative of Sections 25 and 10 (17) of the Act. It will have therefore only prospective operation from 14.1.2000 in which case the petitioner need not be apprehensive of any unqualified hand being posted above the petitioner, who had been promoted as Professor as per Ext. P1 on 11.5.1999, because any person promoted giving the benefit of the amendment will get promotion only from the date of Ext. P1or later. This will protect the interest of the petitioner. 5. It is made clear that the finding herein will not have any bearing in the appeal which is said to be pending before the Mahatma Gandhi University Appellate Tribunal except to the extent of quashing of the retrospectivity to Ext. P5. 6. Naturally any promotions effected from the date of Ext. P5 order shall be reviewed or modified as if it does not have retrospectivity. Original petition is allowed to that extent.