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2004 DIGILAW 485 (KER)

M. v. Sudhakaran VS University of Kerala

2004-10-09

THOTTATHIL B.RADHAKRISHNAN

body2004
Judgment :- The University of Kerala published Exhibit-P1 Notification dated 22nd November, 1999 inviting applications for appointment to the plan posts in the Departments of Environmental Sciences, Bio-Technology, Computer Science and Opto-Electronics in the University. It is stated therein that the appointments to the posts will be made in accordance with Section (6) Sub-section (2) of Chapter II of the Kerala University Act, 1974. The principles that would be followed as regards the turn of appointment and communal rotation are also stated therein. The last date fixed for submission of completed applications was 10th January, 2000. 2. Respondents 3 to 5 and the petitioners were among those who applied for being considered for appointment to the posts of Lecturers in Environmental Sciences. On Scrutiny of the applications, they were found eligible for being considered and were interviewed along with other candidates on the 17th and 18th of July, 2001. 3. Respondents 3 to 5 were selected and the Syndicate of the University, at its meeting held on 21st July, 2001, considered the minutes of the Selection Committee and resolved to appoint respondents 3 to 5 as Lecturers in the University Department of Environmental Sciences. Accordingly, vide a letter dated 21st July, 2001, the selected candidates were directed to report for duty as Lecturers in the University Department of Environmental Sciences, Kariavattom. The Head of the Department of Environmental Sciences issued letter dated 21st July, 2001 stating that respondents 3 to 5 have reported for duty as Lecturers in the Department on the forenoon of 21st July, 2001. Exhibit-P3 University letter dated 27th July, 2001 was thereafter issued by the University stating that sanction has therefore been accorded by the Vice-Chancellor for such appointment with effect from the forenoon of 21st July, 2001. 4. This Original Petition is filed on 24th August, 2001 challenging the appointments of respondents 3 to 5. A declaration is also sought for to the effect that the second respondent Selection Committee was not duly constituted in accordance with Exhibit-P2, the University Grants Commission (minimum qualifications required for the appointment and Career Advancement of teachers in Universities and institutions affiliated to it) Regulations, 2000, hereinafter referred to as ‘the U.G.C. Regulations’, for short. A declaration is also sought for to the effect that the second respondent Selection Committee was not duly constituted in accordance with Exhibit-P2, the University Grants Commission (minimum qualifications required for the appointment and Career Advancement of teachers in Universities and institutions affiliated to it) Regulations, 2000, hereinafter referred to as ‘the U.G.C. Regulations’, for short. The petitioners seek a further writ in the nature of mandamus commanding the University to constitute selection committee for Lecturers in Environmental Sciences in accordance with the U.G.C. Regulations to interview the applicants who are duly qualified. 5. A counter-affidavit has been filed on behalf of respondents 1 and 2 through the Registrar-in-charge of the University of Kerala. The selected and appointed candidates, viz. respondents 3,4 and 5 have also failed separate counter-affidavits justifying their eligibility and selection. 6. The first contention raised by the petitioners is that the U.G.C. Regulations which came into effect on 4th April, 2000 supersedes the qualifications prescribed by the laws in force as regards the University of Kerala at the time of issuance of Exhibit-P1 Notification dated 22nd November, 1999 inviting applications and therefore, the selection ought to have been made in accordance with the U.G.C. Regulations. It is therefore contended that the qualification prescribed in Exhibit-P1 Notification, not being in accordance with the U.G.C. Regulations, vitiates the selection. The constitution of the Selection Committee provided by U.G.C. Regulations appears to be at variance from that prescribed by the laws in force as regards the University of Kerala and therefore, it is contended that the constitution of the Selection Committee is also invalid. 7. It is pertinent to note that the prescription of qualifications in Exhibit-P1 Notification as well as the constitution of the Selection Committee which made the selection are not impeached of having been in violation of the Kerala University Act, 1974 or the Regulations made by the Academic Council of the University in that regard, made under that Act. 8. In as much as Statute 5 in Chapter 3 of the Kerala University First Statutes, 1977 provides that the qualifications shall be prescribed by the Regulations made by the Academic Council, such prescriptions are statutory. The constitution of the Selection Committee is in terms of the provisions of Statute 4 in Chapter 3 of the said Statutes. Chapter 3 of the said Statutes relates to teachers of the University. The constitution of the Selection Committee is in terms of the provisions of Statute 4 in Chapter 3 of the said Statutes. Chapter 3 of the said Statutes relates to teachers of the University. Thus, Exhibit-P1 Notification and the selection conducted thereby have been made, indisputably, under the provisions of the University Act, the Statutes made and the Regulations issued thereunder. 9. The U.G.C. Regulations, Exhibit-P2 are made and issued by the University Grants Commission, hereinafter referred to as ‘the U.G.C.’, in exercise of powers under Clauses (e) and (g) of Sub-section (1) of Section 26 read with Section 14 of the University Grants Commission Act, 1956, hereinafter referred to as ‘the U.G.C. Act’. The effect of such Regulations was considered by the Apex Court in University of Delhi v. Raj Singh (AIR 1995 SC 336). It was held that the University was obliged in law to comply with the provisions contained in the Regulations. However, the effect of Section 14 of the U.G.C. Act was noticed, to state that the contravention of the provisions in such Regulations made under Clauses (e) and (g) of Section 26 would result only in the consequences provided by Section 14. The Division Bench of this Court in Joykutty v. State of Kerala (2000 (3) KLT (SN) page 32) held that U.G.C. Scheme does not become applicable because of any statutory mandate making it obligatory for the Government and the University to follow the same. Following the aforesaid two precedents, the Division Bench of this Court held in S.N. College v. N. Raveendran (2001 [3] KLT 938) that until necessary amendments have been incorporated in the University Act, Statutes etc. the U.G.C. Regulations would not by itself fail the selections in accordance with the said laws. Though the said decision relates to appointment in affiliated colleges, the said decision and reasons contained therein apply to the appointment of teachers of the University also. It is the admitted position that the amendments to the University Act, Statutes and Regulations thereunder are yet to come into force. It is pointed out that the proposed amendments are itself the subject matter of a writ petition pending before this Court and there appears to be an interim order directing the University not to proceed with the steps taken for amending the Regulations relating to qualification of teachers until further orders. It is pointed out that the proposed amendments are itself the subject matter of a writ petition pending before this Court and there appears to be an interim order directing the University not to proceed with the steps taken for amending the Regulations relating to qualification of teachers until further orders. So much so, the contention of the petitioners that the U.G.C. Regulations would supersede the University Act, the Statutes and Regulations made thereunder cannot be accepted. 10. That apart, Exhibit-P2 Regulations are dated 4th April, 2000 and have come into force with immediate effect. Though the date of its publication in the gazette in terms of Section 26 of the U.G.C. Act is not shown, even according to the petitioners, it has come into effect only on 4th April, 2000. It is neither expressed therein, nor is there any implication, that the said Regulations are retrospective. Any intention to give retrospective effect would have been expressed, particularly since the power to make retrospective regulations is selectively conferred as per sub-section (3) of Section 26 of the U.G.C. Act. The counsel for the selected candidates referred to the decisions of the Apex Court in P. Mahendran’s case ([1990] 1 SCC 411), N.T. Devin Katti and others v. Karnataka Public Service Commission and others ([1990] 3 SCC 157) and Gopal Krushna Rath’s case ([1999] 1 SCC 544) to contend for the position that amendments brought to rules after commencement of the selection process would not affect such selections. In view of my finding that the University Regulations do not supersede the laws on the basis of which Exhibit-P1 Notification was issued by the University, the said U.G.C. Regulations do not amount to amendment of the laws in force relating to the University, viz., the Kerala University Act, 1974, the Statutes and Regulations framed thereunder. While in P. Mahendran’s case it was held that in the absence of any express provision to that effect in the amending rules, it must be held to be prospective in nature, in N.T. Devin Katti’s case it was held that where advertisement is issued expressly stating the rules that would regulate the selection, the selection of candidates must be made in accordance with the said rules unless such a right to be considered for selection is taken away by retrospective amendment. It is laid down therein that determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. A candidate on making application for a post pursuant to an advertisement, though does not acquire any vested right of selection, if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of the advertisement. Exhibit-P1 Notification specifically states that the appointments to the posts will be made in accordance with Section (6) Sub-section (2) of Chapter II of Kerala University Act, 1974. The rules as to reservation are also stated in the notification. The qualifications prescribed are indisputably in terms of the Regulations made by the Academic Council. Therefore, the impugned selection made on the basis of Exhibit-P1 Notification cannot be assailed on that ground. The ratio of Gopal Krushna Rath’s case also supports this view more specifically, particularly because it relates to selection of a University teacher. When the selection process has actually commenced and the last date for inviting applications is over, any subsequent change in the requirements regarding qualifications by the U.G.C. will not affect the process of selection which has already commenced. In the case in hand, Exhibit-P1 Notification inviting applications is dated 22nd November, 1999 and the last date for submission of completed application was 10th January, 2000. Exhibit-P2 U.G.C. Regulations were made only on 4-4-2000. Obviously, the same would, in no event, impair the process of selection as per Exhibit-P1 Notification. 11. It is then contended by the petitioners that the meeting of he Syndicate was on 21st July, 2001, and the fact that the selected candidates reported and joined for duty in the Department of Environmental Sciences in the University Campus at Kariavtattom in the forenoon of that day itself would reflect that there was undue haste and a conspiracy to protect the selected candidates. This contention does not stand. Even according to the petitioners, Kariavattom is hardly 18 kms. away from the seat of the University where the Syndicate meets. This contention does not stand. Even according to the petitioners, Kariavattom is hardly 18 kms. away from the seat of the University where the Syndicate meets. The counter-affidavit of the first respondent states that the recommendation of the Selection Committee was considered as the first item in the agenda at the meeting of the Syndicate held at 10 a.m. on 21st July, 2001 and approved minutes were immediately forwarded to the concerned section for further action. Such action is only prompt and expected of a University and its authorities. To join on the basis of such appointments, in an office just 18 kms. away, in the forenoon of that day itself only reflects the anxiety and promptness of an incumbent, at least at the inception. There is nothing illegal about it. Nor does it provide any material to draw any inference as suggested by the petitioner. 12. The next contention is based on the academic qualifications. Having found that Ext.P2 U.G.C.Regulations do not apply and that Ext.P1 is not challenged as being opposed to the Kerala University Act as well as the Statutes made and Regulations framed thereunder, the qualifications prescribed in Ext.P1 govern. They read as follows: “Qualification: Reader xxxxx xxxxx xxxxx xxxxx xxxxx Lecturer (1) Environmental Sciences/Computer Science Good academic record with at least 55% marks or an equivalent grade at Master’s Degree level in the relevant subject from an Indian University or an equivalent Degree from a foreign University. (2) Bio-Technology A first class or second class Maters’s Degree in Bio-Technology (M.Sc. or M. Tech. Biotechnology) with not less than 55% marks of an Indian University of an equivalent qualification, OR M.Sc. Microbiology/Life Science any branch –Botony-Zoology/Life Science/Bio-Chemistry/Immunology with not less than 55% marks in the qualifying examinations and at least two years teaching and/or research experience in Bio-technology/Molecular Biology. 3. Opto-Electronics a. Essential: Good academic record with at least a second class M. Tech Decree in Opto-Electronics/Optical Communication/Electronics and Communication/Applied Optics/Opto-Electronics and Laser Technology or in a relevant field, OR M.Sc. Degree in Physics with 55% marks and a Ph.D. Degree in Opto-Electronics/Laser Technology or in a relevant field. b. Desirable: Research experience with published papers in Opto-Electronics or in a relevant field. Note: 1. Degree in Physics with 55% marks and a Ph.D. Degree in Opto-Electronics/Laser Technology or in a relevant field. b. Desirable: Research experience with published papers in Opto-Electronics or in a relevant field. Note: 1. Candidates, besides fulfilling the above qualifications should have cleared the eligibility test for Lectureship conducted by the UGC/CSIR or similar tests accredited by the U.G.C. OR Should have passed the M.Phil examination by 31st December, 1993. OR Should be a Ph.D. degree holder. 2. A relaxation of 5% marks at Master’s level is allowed to the following categories: 1. SC/ST Candidates. 2. Ph.D degree holders who have passed their Master’s degree prior to 19.9.1991. 3. Those who have cleared JRF examinations conducted by UGC/CSIR or similar tests accredited by UGS prior to 19.9.1991.” 13. As regards the requirement of additional qualifications under the Note quoted above, the candidates should have cleared the eligibility test for Lectureship conducted by the UGC/CSIR or similar tests accredited by the UGC or should have passed the M.Phil examination by 31st December, 1993 or should be a Ph.D. degree holder. Ext.P1 Notification dated 22nd November, 1999 is issued fixing the last date of receipt of application as 10th January, 2000. While respondents 3 and 4 secured Ph.D. degree in 1997, 5th respondent obtained Ph.D. degree in 1993. All of them are thus qualified as per the prescriptions in that regard as per the Note. 14. The petitioners contend that Bio-Chemistry, the subject in which the 5th respondent is qualified, is not a relevant subject as regards Environmental Sciences and therefore, she is unqualified. As per Ext.P1, applications were invited for the post of Lecturers in four departments, viz., Environmental Sciences, Bio-Technology, Computer Science and Opto-Electronics. The subjects in which a Master’s degree is required for being considered for appointment in the Department of Bio-Technology are mentioned. Similarly, specific subjects are also mentioned for being considered for appointment in the Department of Opto-Electronics. As per Ext.P1, applications were invited for the post of Lecturers in four departments, viz., Environmental Sciences, Bio-Technology, Computer Science and Opto-Electronics. The subjects in which a Master’s degree is required for being considered for appointment in the Department of Bio-Technology are mentioned. Similarly, specific subjects are also mentioned for being considered for appointment in the Department of Opto-Electronics. However, in so far as Computer Science and Environmental Sciences are concerned, the provision in Ext.P1 Notification has been made by grouping these two subjects under one head and stating that the qualifications is “good academic record with at least 55% marks or an equivalent grade at Master’s Degree level in the relevant subject from an Indian University or an equivalent Degree from a foreign University.” Therefore, it has to be understood that a candidate aspiring for being considered for appointment as a Lecturer in Computer Science has to have the academic qualification in Computer Science and the candidate aspiring for the post of Lecturer in the Department of Environmental Sciences should have the Master’s Degree in Environmental Sciences. This, according to me, is what emanates out of a plain reading of the Notification. A notification inviting applications, particularly to public appointments including posts of University teacher ought not to be vague. It should be specific. 15. However, the petitioners as well as the University and respondents 4 and 5 proceed on the assumption that any subject which is relevant for Environmental Sciences can be considered for the purpose. This, in my view, does not emanate out of a plain reading of Ext.P1 Notification and there is no ambiguity while reading the said document as it is. 16. The 3rd respondent has a Master’s Degree in Environmental Sciences. Her selection cannot therefore be faulted on this count. 17. The 4th respondent has a Master’s Degree in Geology and the 5th respondent has a Master’s Degree in Bio-Chemistry. The said subjects are not mentioned in Ext.P1 Notification. Any decision of the authorities of the University treating these subjects as also relevant subjects for the purpose of selection of Lecturers in the Department of Environmental Sciences is not a matter reflected by Ext.P1 Notification. Absence of such statements in Ext.P1 would have resulted in possible exclusion of many candidates who would have had Master’s Degree in Bio-Chemistry or Geology. Absence of such statements in Ext.P1 would have resulted in possible exclusion of many candidates who would have had Master’s Degree in Bio-Chemistry or Geology. However, the petitioners, who challenge the selection, also do not possess Master’s Degree in Environmental Sciences. The 1st petitioner has a Master’s Degree in Botany while the 2nd petitioner has a Master’s Degree in Zoology. Whether those subjects are relevant subjects is yet again not discernible from Ext.P1 Notification. So much so, ends of justice do not require any of the impugned selections to be set aside at the instance of the petitioners on this count, particularly in view of the principles flowing from the precedent laid by the Apex Court in Rameshwar Dass Mehla v. Om Prakash Saini & Ors. (JT 2002 [2] SC 403). I hasten to add that by saying so I am not holding either the petitioners or any among respondents 3 to 5 as unqualified for the post. 18. Another contention raised is based on relative merit between the 1st petitioner and the 5th respondent. Needless to say that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to Scrutinize the relative merits of the candidates as has been laid down by the Apex Court in Dalpat Abasaheb Solunke’s case (AIR 1990 SC 434). Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. I have already found that in the present case University had constituted the Committee in due compliance with the relevant Statutes. The Committee consisted of experts and had selected the candidates after going through all the relevant materials before it. It is not within the province of this Court to review the result of the selection so made, by itself comparing the propounded merits. In the result, the writ petition fails. The same is accordingly dismissed. There will be no order as to costs.