Dr.Anupriya Samuel vs University Of Kerala

V.G.Arun, J

The petitioner was appointed as Lecturer/Assistant Professor in Zoology at the St.Johns College, Anchal on 22.9.2015. After appointing the petitioner, the Manager/3rd respondent sought the University’s approval. Thereupon, a doubt arose regarding the validity of petitioner's appointment, since the decision to grant Ph.D Degree to the petitioner was taken after she applied for the post. The University therefore sought legal opinion from its Standing Counsel. The opinion being in the petitioner's favour, the Standing Committee on Teaching and Non-Teaching Staff of the University recommended acceptance of the legal opinion. Thereafter, the Syndicate resolved to agree with the recommendations, but the Vice- Chancellor expressed disagreement, pointing out that the appointment was not in consonance with the UGC Regulations, 2010 and the Government order implementing the Regulations. In the subsequent meeting held on 13.6.2017, one of the Syndicate members raised an objection against the disagreement of the Vice-Chancellor on the premise that the Vice- Chancellor can only express his dissent. Exhibit P13 was issued thereafter, stating that the proposal for approval of the petitioner’s appointment is being returned, since the petitioner was not qualified for appointment to the post when the vacancy was notified and hence, her appointment is inconsistent with the UGC (Minimum Qualifications for Appointment of Teachers and Other Academic Staff in Universities and Colleges and other Measures for the Maintenance of Standards of Higher Education Regulations, 2010

(hereinafter referred to as 'the UGC Regulations, 2010').

Heard Sri.S.Mohammed Haneef, learned counsel for the petitioner, Sri.Thomas Abraham, learned Standing Counsel for Kerala University and Senior Advocate Sri. Jose Kannanthanam, appearing for the 3rd respondent Manager.

Learned counsel for the petitioner contended that the Syndicate, which is conferred with the authority having recommended approval of the appointment, Exhibit P13 communication, based on the Vice Chancellor’s dissent, is issued without authority. Elaborating on the point, it is contended that Section 10 of the Kerala University Act does not confer the Vice Chancellor with the authority to approve appointments of teachers in private colleges. On the other hand, Section 21(xxviii), makes it clear that, approval of appointment of teachers in private colleges is the prerogative of the Syndicate. To buttress this argument, reliance is placed on the Division Bench decision in Vinod B.S. v. Chikku A.M. And Others (judgment in W.A.No.574 of 2015 and connected cases). Exhibit P13 is challenged also on the ground that the stipulations in UGC Regulations, 2010 will not impact the petitioner’s appointment in view of the clarificatory order of the Apex Court in University of Kerala v. Dr.D.Radhakrishnan Pillai and Others [Special Leave to Appeal (C).Nos. 18938-18942/2017].

Learned Senior Counsel drew attention to Section 10(13) of the Kerala University Act and submitted that the Vice Chancellor is conferred with the authority to take action on matters requiring the decision of the Syndicate or the Academic Council only when the Syndicate or the Academic Council is not in session and an emergent situation, requiring immediate action, arises. Even in such a case, the Vice-Chancellor is bound to report the action taken at the next session of the Syndicate or Academic Council, as the case may be, which makes it evident that the power conferred on the Syndicate cannot be usurped by the Vice-Chancellor.

Sri.Thomas Abraham, learned Standing Counsel for the Kerala University submitted that the Syndicate resolution recommending approval of petitioner’s appointment was not in consonance with the UGC Regulations, 2010 and the Full Bench decision in Dr.D.Radhakrishna Pillai v. Travancore Devaswom Board and Others [2016(2) KLJ 41]. That, as per Clauses 3.3.0 and 3.3.1 of the UGC Regulations, 2010, a candidate applying for the post of Assistant Professor should have qualified the National Eligibility Test (NET) or an accredited test (State Level Eligibility Test - SLET/SET) or should have acquired Ph.D Degree in accordance with the UGC (Minimum Standards and Procedure for Award of Ph.D Degree) Regulations, 2009. According to the learned counsel, as the petitioner did not satisfy the requirement, the University was justified in rejecting her proposal for appointment.

In order to resolve the issue raised, it is necessary to consider the relevant provisions in the Kerala University Act, 1974 and the Kerala University First Statutes, 1977. Section 23 of the Act vests the Syndicate with the executive powers of the University, including the power of general superintendence and control over the institutions of the University. Section 23 (xviii) confers the Syndicate with the power to approve the appointment of teachers in private colleges. Statute 3(xvii) under Chapter 6 of the Kerala University First Statutes, 1977 empowers the Syndicate to approve the appointment of teachers as qualified to give instructions or to supervise or control research and to withdraw such approval, subject to the regulations framed by the Academic Council. The above provisions leave no room for doubt that the Syndicate, and not the Vice-Chancellor, is the appropriate

authority. Legal support for this position can be garnered from the Division Bench decision in Vinod B.S's case (supra), the contextually relevant portion of which reads as under;

“13. From a reading of the relevant provisions in the Kerala University Act and, the Statutes and the Regulations framed thereunder, it is abundantly clear that the authority vested with the power to take a decision in the matter of grant or rejection of approval of appointment in a affiliated college is with the Syndicate. In the instant case, it can be seen from a mere reading of the impugned Ext.P-10 proceedings dated 29.9.2011 that the said decision therein to reject the proposal for approval of the impugned appointment of the petitioner as a Lecturer in Bio Chemistry in S.N. College, Kollam has been rendered by the Vice Chancellor........ It is crystal clear from the materials on record that, till date the competent authority of the University vested with the power to take a decision in the matter of grant or rejection of approval of an appointment has never taken any decision on the issue as to whether approval of the appointment of the petitioner herein has to be granted or declined. The authority, which is vested with the power to grant approval of an appointment is also the authority, which is vested with the power to decline or reject approval thereto. Therefore, for effective compliance of the directions issued in Ext.P-7 judgment, the matter relating to the proposal submitted by the college for approval of the impugned appointment as well as the objections thereto submitted by the contesting respondent herein should have been placed before the competent authority, viz., Syndicate, to decide, whether the approval of the impugned appointment is to be granted or declined. This has not been done in the instant case and on the other hand, the Vice Chancellor has proceeded to decide the matter himself and has taken a decision to reject the proposal for approval of the appointment submitted by the college management. This evidently is wrong and the matter should have been

placed for consideration before the Syndicate to enable it to render a decision on the merits of the matter and in accordance with law.”

As rightly pointed out by the learned Senior Counsel, Vice Chancellor can exercise the power vested with the Syndicate only when the Syndicate is not in session and an emergent situation, requiring immediate action, arises. As far as the instant case is concerned, as per Exhibits P11 and P12 resolutions, the Syndicate had recommended to accept the proposal for appointment of the petitioner. The Vice Chancellor’s dissent will not render the resolution of the Syndicate invalid. As such, rejection of the proposal for appointment based on the Vice-Chancellor's dissent is unsustainable.

The contention that the petitioner failed to satisfy the requirements of the UGC Regulations, 2010 also cannot hold good in view of the clarificatory order of the Supreme Court in University of Kerala v. Dr.D.Radhakrishnan Pillai and Others [Special Leave to Appeal (C).Nos. 18938- 18942/2017], the relevant portion of which reads as follows;

“The fact remains that the law has been settled by the High Court finally by the judgment of the Full Bench of the High Court of Kerala dated 23.2.2016

regarding the application of U.G.C Regulations. Therefore, it is only in the interest of justice and for doing complete justice between the parties to declare that the judgment dated 23.2.2016 will be applicable only from the date of the judgment i.e. 23.2.2016, except in the case of the individual parties before the High Court.

Declared accordingly.”

In the result, Exhibit P13 is quashed and the University is directed to approve the petitioner’s appointment as Assistant Professor in Zoology with effect from the date of appointment. Ordered accordingly.