IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 25694 of 2005(H) -------------------------- PETITIONER(S): --------------- DR. SAIFUL ISLAM. A., SMRUTI, SOUTH FORT, MAVELIKARA-690 101. BY ADV. SMT.V.P.SEEMANDINI, SENIOR ADVOCATE SMT.S.KARTHIKA RESPONDENT(S): --------------- 1. UNIVERSITY OF KERALA, REP. BY ITS SYNDICATE, UNIVERSITY OF KERALA, KARIVATTOM, TRIVANDRUM. 2. THE SELECTINO COMMITTEE FOR APPOINTMENT OF TEACHERS, UNIVERSITY OF KERALA, REP. BY ITS CHAIRMAN (VICE CHANCELLOR), KERALA UNIVERSITY, KARIVATTOM, TRIVANDRUM. 3. DR. GOPAKUMAR. G., HEAD OF THE DEPARTMENT OF POLITICS, UNIVERSITY OF KERALA, KARIVATTOM, TRIVANDRUM. 4. DR. A. BASHEER, K.N.M. GOVT.WOMENS COLLEGE, KANNUR. ADDITIONAL RESPONDENT: 5. STATE OF KERALA, REP. BY THE SECRETARY, SC & ST DEVELOPMENT (F) DEPT., (ADD.R5 IS SUO MOTU IMPLEADED AS PER PER ORDER DTD.26.11.07 IN WRIT PETITION.) ADV. SRI.GOPAKUMAR R.THALIYAL FOR R3 SRI.N.P.PRAJEESH FOR R3 SRI.M.P.MADHAVANKUTTY FOR R4 SRI.M.K.CHANDRAMOHAN DAS,SC,KERALA UTY. FOR R1 SRI.S.GOPAKUMARAN NAIR, SC KERALA UTY. FOR R1 & 2 SRI.GOKUL DAS V.V.H. FOR R4 SRI.M.RAJAGOPALAN NAIR FOR R1-2 GOVT. PLEADER SHRI.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.25694/05. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE BIO-DATA. P2. COPY OF THE NOTIFICATION. P3. COPY OF THE COMMUNICATION DTD.10.8.05 BY THE UNIVERSITY OF KERALA. P4. COPY OF THE LIST PREPARED DTD.21.6.05. P5. COPY OF THE NOTIFICATION DTD.16.8.88. P6. COPY OF THE DEGREE CERTIFICATE DTD.31.5.83. P7 COPY OF THE RELEVANT PAGES OF VOVERS' LIST. P8. COPY OF THE APPLICATION BY R4. P9. COPY OF THE NON CREAMY LAYER CERTIFICATE. P10. COPY OF THE SCORE SHEET. P11. COPY OF THE ORDER DTD.22.8.05. P12. COPY OF THE ORDER DTD.14.9.04. P13. COPY OF THE CERTIFICATE DTD.16.11.84. P14. COPY OF THE CERTIFICATE DTD.3.8.85. P15. COPY OF THE CERTIFICATE DTD.22.12.87. P16. COPY OF THE APPLICATION DTD.1.12.04 BY R4. P17. COPY OF THE INTIMATION DTD.10.8.05 BY THE UNIVERSITY. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE MINUTES OF THE MEETING DTD.6.9.05. R1B. COPY OF THE COMMUNICATION DTD.7.9.05 TO R4. R4A. COPY OF THE NOTIFICATION DTD.1.12.04. R4B. COPY OF THE NOTIFICATION DTD.6.12.04. R4C. COPY OF THE GOVT. ORDER. R4C. COPY OF THE GUIDELINES FOR FIXATION. R4D. COPY OF THE ORDER OF THE REGISTRAR DTD.7.9.05. R4E. COPY OF THE BIO DATA OF R4. R4F. COPY OF THE FRONT PAGE OF SSLC BOOK. R4G. COPY OF THE SERVICE CARDS. R4H. COPY OF THE DEED DTD.22.8.95. R4I. COPY OF THE LETTER DTD.5.1.2005 BY THE REGISTRAR TO R4. R4J COPY OF THE PH.D. CERTIFICATE R4K COPY OF THE ORDER DTD.27.12.07 sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 25694 of 2005 ================== Dated this the 23rd day of March, 2010 J U D G M E N T In this writ petition, the bone of contention as between the petitioner and the 4th respondent is the post of Reader in Political Science in the Kerala University, which vacancy was reserved to be filled up from among the candidates belonging to Muslim community, to satisfy the roster point applicable to that community. Both the petitioner and the 4th respondent applied for the post. The 4th respondent was selected. The petitioner is challenging the selection of the 4th respondent on four grounds. The first is that as on the last date for submitting applications, the 4th respondent did not have the qualification prescribed for the post. Secondly, the experience qualification prescribed, viz., 8 years teaching experience should have been one obtained after the acquisition of the basic qualification of Ph.D., which the 4th respondent did not possess at the relevant time. Thirdly, for the purpose of consideration for selection, the candidate was expected to produce a non-creamy layer certificate to prove their eligibility for reservation, which, the 4th respondent produced only on 1.9.2005, after the selection process was over. The last contention is that quality publications in the areas of scholarship is a necessary qualification prescribed, which also the 4th respondent did not possess. w.p.c.25694/05 2 2. The basic facts necessary for disposal of this writ petition are as follows:- By Ext.P2 notification, the University invited applications for appointment to various posts including the post of Reader in Political Science reserved for Muslim candidates. The qualifications prescribed for the post were as follows: “Good academic record with a doctoral degree or equivalent published work. Candidates from outside the University system in addition shall also possess at least 55% marks or an equivalent grade at the Master's Degree level. Eight years experience of teaching and/or research including upto 3 years for research degree and has made some mark in the areas of scholarship as evidenced by quality of publication, contribution to educational renovation, design of new courses and curricula.” The last date prescribed for submitting applications was 6.12.2004. Interview was conducted on 22.8.2005. The petitioner filed the writ petition on 29.8.2005 challenging inclusion of the 4th respondent in the list of candidates to be considered for selection on the ground that the 4th respondent did not possess the qualifications prescribed for the post. Subsequent to the filing of the writ petition, the 4th respondent was appointed pursuant to the selection under challenge. 3. The 1st contention of the petitioner is that on the last date for submitting applications, viz., 6.12.2004, the degree of Ph.D. was not awarded to the 4th respondent. The petitioner points out that even before this Court the 4th respondent has not chosen to produce the degree certificate of Ph.D. obtained by him. It is pointed out that the Syndicate recommended the 4th respondent for awarding Ph.D. degree w.p.c.25694/05 3 only on 27.11.2004 and the degree was awarded only after the last date prescribed for submitting applications. Therefore, according to the petitioner, the 4th respondent did not possess the degree of Ph.D. as on the last date prescribed for submitting applications. The second contention is that the eight years' experience in teaching prescribed should have been one obtained by the candidates after obtaining the basic qualification prescribed viz., degree of Ph.D. In so far as the degree of Ph.D. was awarded to the 4th respondent subsequent to the last date prescribed for submitting applications, the 4th respondent did not possess the prescribed experience qualification also. In support of this contention, the petitioner relies on two decisions of this Court, viz., Dr.Vijayachandran Pillai and another v. University of Calicut and others [2009 (2) ILR 874] and Vasundhara.G. v. Dr.Sallas Benjamin and others [2010(1) ILR 531]. The third contention raised is that as per the notification itself the candidates were required to produce a certificate to the effect that they did not belong to the creamy layer as contemplated in G.O(P).No.36/2000/SC/ST dated 27.5.2000. Interview was held on 22.8.2005, on which date also, the 4th respondent had not produced the non-creamy layer certificate to prove his eligibility for reservation. He produced it only on 1.9.2005, much after the interview was over. Therefore, according to the petitioner, for that reason also, the 4th respondent could not have been considered for selection at all. w.p.c.25694/05 4 The petitioner also raises a contention that the 4th respondent did not have any quality publication in the areas of scholarship, which is also one of the qualifications prescribed for the post. 4. In answer to the these contentions, the University and the 4th respondent would contend that the 4th respondent did obtain the prescribed qualifications prior to the last date fixed for submitting applications. According to them, the Syndicate resolved to award the degree of Ph.D. to the 4th respondent on 27.11.2004, which is the date on which, the 4th respondent obtained the qualification of Ph.D. Regarding the second contention, they would contend that going by Ext.P2 notification inviting applications, it does not specifically state that the experience of 8 years should be after acquiring Ph.D. degree. They try to distinguish the decision in Vasundhara's case (supra) on the ground that the wordings in the 2 notifications are different, in so far as in Ext.P2, 8 years experience of teaching/research including three years research preceding the Ph.D. Degree is the experience qualification prescribed, whereas in the decision in Vasundhara's case, five years teaching experience prescribed is excluding the period spent for obtaining research degree. According to them, the question as to whether the experience should be before or after the basic qualification depends on the rule applicable and the notification issued as laid down by the Full Bench of this Court in Shaila Beegum v. Kerala Public w.p.c.25694/05 5 Service Commission [1997 (2) KLT 273(FB)]. They would contend that in this case the prescription does not expressly or impliedly show that the experience should be after obtaining Ph.D. Regarding the third contention, the 4th respondent would contend that simply because the appropriate authorities delayed granting of certificate to the 4th respondent, the 4th respondent shall not be put to prejudice. In any event, he would submit that the syndicate considered the recommendation of the selection committee only on 6.9.2005 as evidenced by Ext.R1(a) minutes produced by the University and the 4th respondent had produced a creamy layer certificate on 1.9.2005 prior to the decision of the syndicate. According to the University and the 4th respondent, once the 4th respondent proves his eligibility for reservation, before the syndicate decided to approve the recommendation of the selection committee, that would be sufficient compliance insofar as that is not a qualification prescribed to be obtained prior to the last date for submitting applications. The 4th respondent would contend that the 4th respondent has quality publications in the areas of scholarship as prescribed in the notification also. 5. I have considered the rival contentions in detail. 6. It is true that the power to award degrees in a University is vested with the senate of the University. It has been stated so in the w.p.c.25694/05 6 Kerala University Act and Statutes. That does not necessarily mean that the acquisition of qualification of Ph.D. Degree would be only when the senate actually issues the degree certificate to the candidate. Statute 4 of Chapter 19 of the Kerala University First Statues, 1977, prescribes the mode of awarding of Degrees of Doctor of Philosophy. The said statute reads thus: 4. Degree of Doctor of Philosophy:- (1) The Degree of Doctor of Philosophy (Ph.D.) in the Faculty of Education may be awarded only as prescribed hereunder to persons holding Masters Degree in Education or Master of Philosophy (M.Phil) in Education of this University or of any other University recognised by the University as equivalent there to on the results of research work extending over a period of not less than two years after qualifying for the Masters Degree as embodied in a thesis relating to subjects coming within the purview of the Faculty. The research shall be undertaken under the guidance of a supervising teacher in an institution of this University or in an institution approved by the Syndicate. (2) A candidate shall be required to register himself as a research student and as a candidate for the Degree of Doctor of Philosophy before the commencement of his course of research. (3) The application for registration as a research student and as a candidate for the Ph.D Degree shall be made to the Registrar on or before the 15th January and 15th July of the year in the prescribed form, and shall be accompanied by: (a) a diploma or certificate showing the academic qualifications of the applicant and such other evidence of attainments as will show his fitness to pursue the proposed course of research; (b) the written consent of a teacher of the University or other supervisor recognised for the purpose by the Syndicate, agreeing to supervise the work of the applicant; and (c) a registration fee as prescribed by the Ordinances. (4) The application for registration as a research student and candidate for the Degree shall be considered and disposed of by the Syndicate. Provided that the opinion of the Board of Studies concerned shall w.p.c.25694/05 7 be obtained with regard to the suitability of the institution if outside Kerala for the purpose of any particular course of research. (5) Within six months before the expiry of the prescribed minimum period after registration or at any other time afterwards the candidate shall submit to the Registrar, together with the prescribed fee, four copies of a thesis, printed or type-written in English with a brief summary in an Indian language embodying the results of research carried out by him. The candidate shall state, in a preface, the sources from which he has derived information or guidance for his work; the extent to which he has availed himself of the work of other and the portions of the thesis which he claims as original. (6) The thesis shall be accompanied by a declaration signed by the candidate that it has not previously formed the basis for the award of any degree, diploma, associateship, fellowship, or other similar title or recognition. The candidate shall also submit a report by the Supervising Teacher certifying that the thesis is a record of bona fide research carried out by the candidate. (7) In addition to the thesis, the candidate may submit, as additional evidence, any memoir or work published by him alone or jointly with others. The thesis shall be valued by a Board of Three Examiners appointed for the purpose by the Syndicate. The candidate may be required to undergo, at the direction of the Examiners, an oral and/or practical test on the subject of the thesis. (8) The report of the Examiners shall be considered by the Syndicate. If the candidate is adjudged worthy to be awarded the degree, a resolution to that effect shall be passed by the Syndicate and the candidate shall be admitted to the Degree under the prescribed conditions. (9) If the thesis is not approved for the award of the Degree, the candidate may submit after an interval of not less than six months, a new or a revised thesis, together with the same fee. The procedure prescribed in the preceding clauses shall be followed in respect of this thesis also. (10) A candidate shall not be allowed to submit his thesis on more than two occasions: Provided that it shall be competent for the Syndicate, if the Board of Examiners so recommend, to permit the candidate to submit his thesis for a third time. (11) The thesis, whether approved or not shall not be published without the sanction of the Syndicate, and the Syndicate may grant permission for the publication under such conditions as it may think fit to impose.” (underlining supplied) w.p.c.25694/05 8 Statute 1 of Chapter 5, which chapter deals with the powers of the Senate, reads thus: “1. Powers of the Senate:- In addition to the powers conferred on the Senate by the provisions of the Act, the Senate shall have the following powers, namely:- (i) to confer degrees and other academic distinctions on persons - (a) who unless exempted therefrom in the manner prescribed, shall have pursued a prescribed course of study in a college or institution maintained by or affiliated to the University and shall have passed the prescribed examination or examinations, or (b) who shall have carried on research under prescribed conditions; (ii) to grant diplomas, titles, certificates and other academic distinctions to persons who shall have pursued a prescribed course of study under prescribed conditions; (iii) to confer honorary degrees or other distinctions or distinguished persons in accordance with the conditions prescribed by the Statutes; xxx xxx xxx xxx” Going by the same, on the syndicate adopting a resolution of awarding of Degree of Doctor of Philosophy, the candidate shall be admitted to the degree. Therefore, formal awarding of the degree by the senate in a convocation is only a further formality, in so far as the Act and Statutes do not contemplate any procedure to be followed after a resolution of the Syndicate for the purpose of awarding of degree, although Section 19(2)(j) of the Kerala University Act confers power on the Senate to cancel any degree, diploma, title or any other distinction granted to any person in accordance with the provisions of the Statutes. Admittedly in the case of other degrees, once results of w.p.c.25694/05 9 the examination conducted for ascertaining the eligibility for the award of the degree are published, the candidates who have passed the examination become eligible for the degree. As such, the date of acquisition of qualification in the case of other degrees is the date when the results of the examination are published and not the date when the Senate awards the degree certificate. There also, the degree is actually awarded by the senate after the syndicate decides to publish the results. Therefore, adoption of the resolution by the syndicate in Statute 4(8) of Chapter 19 of the First Statute is akin to the publication of the results of the examination. This is so because in the award of degree of Doctor of Philosophy does not contemplate passing of an examination. The requirements are to submit a thesis on a particular subject and to undergo an oral and/or practical test on the subject of the thesis. A team of examiners evaluate the thesis and after considering their recommendations, the Syndicate adopts a resolution to award the degree to the candidate, whereupon the candidate shall be admitted to the degree. The Statutes do not prescribe any further procedure on the part of the Senate for awarding the degree. Once the Syndicate adopts the resolution, the Senate awards the degree. Therefore, I am of opinion that the date of acquisition of qualification of Ph.D is the date on which the Syndicate adopts the resolution to award the degree of Ph.D. Going by that date, w.p.c.25694/05 10 the 4th respondent had acquired the degree of Ph.D. prior to the last date for submitting applications, viz 6.12.2002, in so far as Syndicate adopted the resolution to award degree to the 4th respondent on 27.11.2004. As such, I am of opinion that the petitioner is not entitled to succeed on the basis of the first ground raised. 7. But it is quite a different situation as far as the second ground raised by the petitioner is concerned. The qualification prescribed includes eight years experience of teaching and/or research including upto 3 years research for research degree. Two Division Benches of this Court in the decisions cited by the petitioner, supra, have held that in respect of the post of Reader in the Calicut University the experience qualification prescribed should be one obtained after obtaining the basic degree of Ph.D. Of course, the learned counsel for the 4th respondent and the learned Standing Counsel for the University try to draw a distinction based on the two notifications. According to them, the fact that in the decisions cited, the prescription is five years experience excluding research during Ph.D, whereas, in Ext.P2 notification, the experience qualification is 8 years experience of teaching and/or research including upto 3 years for research degree, which would go to show that in the decisions cited, the experience should have been after obtaining Ph.D. whereas in Ext.P2 the indication is to the contrary. They rely on the decision of the Full Bench w.p.c.25694/05 11 of this Court in Shaila Beegum's case (supra). It is true that in Shaila Beegum's case (supra), the Full Bench laid down the law that the question as to whether the experience qualification should be after or before obtaining basic degree would depend upon the rules applicable to the notification issued. But in this case, after considering the notification for inviting applications for appointment as Reader in another University in Kerala in two decisions, the Division Bench of this Court has come to the conclusion that for recruitment to the post of Reader, the experience should have been obtained subsequent to the obtaining of the basic degree of Ph.D. The distinction sought to be drawn by the counsel for the 4th respondent and the learned Standing Counsel for the University does not appeal to me in so far as in both cases, the Universities are to follow the University Grants Commission norms regarding qualifications. In fact that is exactly what the Division Bench of this Court has held in Vasundhara's case (supra). In paragraphs 9 and 10 of that judgment, it is held thus: '9. The point whether teaching experience should be one acquired before or after the acquisition of the Ph.D qualification, is no longer res integra. That point is covered by the decision of this Court in Dr.Vijayachandran Pillai v. University of Calicut [I.L.R. 2009(2) Kerala 874]. In the said decision, it was held as follows: “8. The stipulation in Ext.P1 regarding teaching experience is as follows: 'Five years of teaching and/or research excluding the period spent for obtaining the research degree and has made some mark in the areas of scholarship as evidenced by quality of publications, contribution to educational innovation, design of new courses and curricula.' w.p.c.25694/05 12 Ph.D degree is an essential qualification for the post of Reader. The 3rd respondent was awarded Ph.D degree only on 23.9.2003. The last date for receipt of applications was 15.10.2003. That means, after the acquisition of the basic qualification of Ph.D., the 3rd respondent did not have any teaching or research experience.” 10. In view of the above legal position, even if the appellant's experience as a Guest Lecturer is taken into account, she is not qualified. Even assuming this point was not specifically raised by the 1st respondent/writ petitioner, the same was brought to the notice of the Court by the University through its additional counter affidavit. When this fact was brought to the notice of this Court, we think, this Court is not justified in ignoring that, as it is a pure legal question. The nature of the teaching post held by the incumbent, based on which experience is claimed, according to us, is also relevant in this case. Normally, a Lecturer in a University or in an aided College is appointed by a duly constituted selection committee. Thereafter, the appointment has to be approved by the University. In the case of Government Colleges, appointment is made based on the selection held by the Public Service Commission. A Guest Lecturer is appointed, in most of the cases, based on walk-in interview. Publications are usually made in local newspapers and based on that the candidates approach the head of the institution concerned and the incumbent is appointed as Guest Lecturer on hourly basis. The experience gained by such a candidate cannot be treated as the qualification prescribed by the University, based on U.G.C norms, for appointment to the post of Reader, which is a fairly senior teaching post. Normally, the candidate should be one, who must have teaching experience in the post of Lecturer, who got appointment after a regular selection. We think, the same is the reasonable view that should be taken, having regard to the qualification prescribed by the University, which is based on the norms formulated by an august body like the U.G.C. So, the view taken by the learned Single Judge, accepting the contention of the University in its additional counter affidavit that teaching experience should be one which is gained after regular selection and appointment to a teaching post, is a plausible view on the facts of the case. We think, it is a correct view also.' (underlining supplied) As far as both Universities are concerned, the UGC norms are the same and the same are binding on both the Universities equally. That being so, when in respect of one University based on the UGC norms, the Division Bench has held that for the post of Reader in the University, experience should have been one obtained subsequent to w.p.c.25694/05 13 the obtaining of Ph.D. Degree, I am unable to take a different view based on the distinction tried to be drawn by the counsel for the 4th respondent and the learned Standing Counsel for the University. In any event, the only difference I see between the two