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2018 DIGILAW 78 (KER)

Binu George Varghese v. Mahatma Gandhi University

2018-01-19

ANU SIVARAMAN

body2018
JUDGMENT : The petitioner challenges Exhibit P27 order of the University annulling resolution of the Syndicate dated 6.12.2014 by which the petitioner was promoted as Director of Physical Education in the School of Physical Education and Sports Sciences under the University. The petitioner had been appointed as Assistant Director in the School of Physical Education and Sports Sciences on 20.02.2006. The Director of Physical Education, who was in service, retired on 31.03.2009 and a vacancy therefore arose on 1.4.2009. A notification was issued for appointment to the post of Director on 1.6.2010. The petitioner had challenged the decision of the Syndicate dated 8.4.2010 to the extent it resolves to notify the post of Director of Physical Education by direct recruitment. Exhibit P10 notification was also challenged by the Association of College Teachers’ on the ground that the qualifications prescribed therein were not in accordance with the Kerala University First Ordinances, 1978. Therefore, Exhibit P10 notification was cancelled by Exhibit P11 dated 4.05.2013 on a finding that the notification was not in accordance with Kerala University First Ordinance, 1978 which was applicable to the Mahatma Gandhi University by virtue of sub-s.(2) of S.99 of Mahatma Gandhi University Act 1985. Thereafter, on 6.12.2014 the Syndicate of the University met and decided to appoint the petitioner as Director of Physical Education ‘by promotion’ in accordance with the First Ordinances. Exhibit P12 order dated 19.12.2014 was therefore issued by the University promoting the petitioner. The Writ Petitions preferred by the petitioner, the Association, as well as the other candidates against the notification of the post of Director of Physical Education were dismissed as infructuous, as the notification stood withdrawn by the University. However, by Exhibit P17 proceedings dated 11.11.2016, the petitioner was informed that on a complaint preferred by the 4th respondent, a Committee was constituted to conduct an enquiry into the allegations raised against the promotion of the petitioner. By Exhibit P19, a show cause notice was issued to the petitioner on 29.12.2016 requiring his explanation as to why the decision taken by the Syndicate to promote him should not be revoked. The petitioner submitted Exhibit P20 explanation. Thereafter, a fresh show cause notice was issued on 29.5.2017 also, to which also the petitioner submitted a detailed reply. By Exhibit P19, a show cause notice was issued to the petitioner on 29.12.2016 requiring his explanation as to why the decision taken by the Syndicate to promote him should not be revoked. The petitioner submitted Exhibit P20 explanation. Thereafter, a fresh show cause notice was issued on 29.5.2017 also, to which also the petitioner submitted a detailed reply. However, by Exhibit P27 proceedings dated 17.8.2017, the explanation submitted by the petitioner was rejected and the promotion of the petitioner and the decision of the Syndicate to grant the same were annulled on the ground that the petitioner did not have the qualifications prescribed by the U.G.C. in its 2010 Regulations. 2. The learned counsel for the petitioner contends that the petitioner had been promoted to a vacancy of Director of Physical Education which arose on 1.4.2009. The petitioner had all the qualifications prescribed for appointment/promotion to the post of Director as provided in the Kerala University First Ordinances which was made applicable to the respondent-university. When the university had sought to make appointments to the post of Director ‘by direct recruitment’ in terms of the U.G.C Regulations, the said action had been challenged before this Court by the Association of College Teachers of Physical Education on the specific ground that such action was against the Kerala University First Ordinances and the prescriptions thereof. The petitioner also had challenged the notification for the post of Director and this Court had issued an interim order of stay of filling up of post. The University had considered the applicability of the First Ordinances and on finding that the notification was not in accordance with the First ordinances had decided to recall the same. It was thereafter that the petitioner had been appointed by promotion as Director against the vacancy which had arisen on 1.4.2009. The Syndicate while deciding to recall the notification issued for appointment to the post of Director, as also while deciding to promote the petitioner as Director had specially considered question of the applicability of the qualifications, method of appointment and eligibility as provided in the First Ordinances, which had been made applicable to the University. The Syndicate while deciding to recall the notification issued for appointment to the post of Director, as also while deciding to promote the petitioner as Director had specially considered question of the applicability of the qualifications, method of appointment and eligibility as provided in the First Ordinances, which had been made applicable to the University. It was obviously on the finding that the notification was not in consonance with the First Ordinances that it had been withdrawn and the petitioner, who was qualified going by the First Ordinances, was granted promotion against the vacancy which had arisen on 1.4.2009. It appears that what has weighed with the University in its endeavour to rescind his earlier decision was that a Full Bench of this Court in Radhakrishna Pillai v. Travancore Devaswom Board ( 2016 (2) KHC 119 (F.B.)) has held that the U.G.C. Regulations would prevail over the University Statutes and ordinances in the matter of appointments to the posts which fall under the domain of such regulations. However, it is pointed out by the learned counsel for the petitioner that the selection in the instant case was to a vacancy which arose in 2009 when the U.G.C Regulations did not apply. Even in a case where the earlier decision of the Syndicate is later found to be erroneous, it is contended that the Syndicate would have no power to recall its earlier decision or to annul the same in view of the absence of a specific power of review under the University Act or First Statutes. It is further argued that the power to review, reconsider or annul the earlier decision of the Syndicate is conspicuous by its absence in the M.G. University Act or statutes. The learned counsel would place reliance on Exhibit P28 judgment which has been affirmed in appeal by a Division Bench. Relying on several decisions of the Apex Court it has been held that unless the power of review is specifically confirmed, the executive committee of the Kerala Agricultural University which is equivalent to the Syndicate of the M.G. University would have no power to rescind, review or cancel its earlier resolution. 3. Relying on several decisions of the Apex Court it has been held that unless the power of review is specifically confirmed, the executive committee of the Kerala Agricultural University which is equivalent to the Syndicate of the M.G. University would have no power to rescind, review or cancel its earlier resolution. 3. A counter affidavit is filed by respondents 1 to 3 contending that the University had re-examined the matter on a complaint preferred by the 4th respondent and had found that the petitioner who was promoted as Director in 2014, did not possess the qualifications prescribed in U.G.C Regulations. 4. I have considered the contentions advanced on all sides. The provisions of the Kerala University First Ordinance, 1978 with regard to the method of appointment and qualification to the post of Director of Physical Education read as follows:- Sl. No. Designation Scale of pay Age Qualification Method of recruitment General Technical 1 2 3 4 5 6 xx xx xx xx xx xx xx DEPARTMENT OF PHYSICAL EDUCATION 104 Director 850-1450 Between 40 and 50 years (1) A Masters Degree in Physical Education with 55% marks or above. A Diploma in Coaching from a National Institute of Sports. OR Masters degree in Physical Education with 55% marks or above and with a record of having represented his University at the Inter-University level/ State in the national championship (2) A Doctorate degree in Physical education. Experience: 16 years experience in organizing games and sports handling of about half a dozen teams in a year in his institution and their participation in University/Inter-collegiate tournaments and ability to encourage mass participation in games and sports.) On the basis of merit inviting applications through the Press or by promotion on the basis of seniority and merit. 5. It is clear that the petitioner had been appointed as Director in a vacancy which was in existence from 1.4.2009. The U.G.C. Regulations were made applicable by the acceptance of the same by the Government of Kerala only w.e.f. 18.09.2010. Even before the U.G.C Regulations had been made applicable, the petitioner had raised a claim for appointment as Director of Physical Education. This Court had considered the claim raised by the petitioner and had ordered the University not to fill up the post of Director by direct recruitment. Even before the U.G.C Regulations had been made applicable, the petitioner had raised a claim for appointment as Director of Physical Education. This Court had considered the claim raised by the petitioner and had ordered the University not to fill up the post of Director by direct recruitment. The notification for direct recruitment was later withdrawn by the University on a finding that the appointments were made in accordance with the Kerala University First Ordinances which were made applicable to the respondent University. It was thereafter that the petitioner had been appointed as Director by promotion. This was evidently considering his eligibility and qualifications with reference to the date of occurrence of vacancy. Since the U.G.C. Regulations had not been adopted by the Government and made applicable either on the date of occurrence of the vacancy or on the date when the post was decided to be notified for direct recruitment, the University had decided that the appointment had to be in accordance with the First Ordinances applicable. In the facts and circumstances of this case, I find no error in the said decision of the Syndicate, since the vacancy was in existence before the U.G.C. Regulations came into force and the petitioner had been appointed taking note of the qualifications and eligibility as on the said date. I am also in respectful agreement with Exhibit P28 judgment to the effect that the power of review cannot be exercised by the Syndicate unless such power is specifically provided for by the statute. In the instant case, I find no provision in the M.G. University Act or in the First Statutes enabling the Syndicate of the University to reconsider or cancel a decision taken by in earlier point of time. 6. In the above view of the matter, action taken by the University to annul its earlier decisions and orders promoting the petitioner to the post of Director Physical Education in the School of Physical Education and Sports Sciences cannot be sustained. Exhibit P27 as well as notices preceding the same are therefore set aside. The petitioner will be entitled to continue as Director of Physical Education under the 1st respondent University. The Writ Petition is ordered accordingly.