IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 29TH JUNE 2009 / 8TH ASHADHA 1931 WP(C).No. 3004 of 2007(G) -------------------------------------- PETITIONER(S): ------------------------ 1. A.N.SASIDHARAN, INSTRUCTOR IN PHYSICAL EDUCATION, MAHARAJAS TECHNOLOGICAL INSTITUTE, THRISSUR. 2. NAJEEB.H, INSTRUCTOR IN PHYSICAL EDUCATION, WOMEN POLYTECHNIC COLLEGE, KAYAMKULAM. 3. ZACHARIAS JOSEPH, INSTRUCTOR OF PHYSICAL EDUCATION, GOVT.WOMEN POLYTECHNIC COLLEGE, MALAPARAMBA, KOZHIKODE. 4. ANISHKUMAR MORIAS.C., INSTRUCTOR IN PHYSICAL EDUCATION, GOVT.WOMEN POLYTECHNIC COLLEGE, THIRUVANANTHAPURAM. 5. SOBHANA.K.R, INSTRUCTOR IN PHYSICAL EDUCATION, GOVERNMENT WOMEN POLYTECHNIC COLLEGE, KUMALI. 6. BABU.D.THATTIL, INSTRUCTOR IN PHYSICAL EDUCATION, GOVERNMENT WOMEN POLYTECHNIC COLLEGE, KORATTY,THRISSUR DISTRICT. BY ADVS. MR.P.BHASKARAN MR.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETRIAT, THIRUVANANTHAPURAM. WP(C) NO.3004/2007 2. THE DIRECTOR OF COLLEGIATE EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 3. THE UNIVERSITY GRANTS COMMISSION, REPRESENTED BY ITS SECRETARY, BAHADUR SHAH ZAFAR MARG, NEW DELHI, 110 002. 4. KERALA PUBLIC SERVICE COMMISION, REP. BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. BY GOVT. PLEADER MR.I.V.PRAMOD BY ADVS.MR.PRAKASH PUTHIADAM, ADDL.CGSC FOR R3 MR.SUNNY XAVIER, ACGSC FOR R.3 MR. ALEXANDER THOMAS, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.3004/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTIFICATION DT. 14.6.06 ISSUED BY the 3RD RESPONDENT. P2:- COPY OF THE REPRESENTATION DT. 22.8.06 SUBMITTED TO THE 2ND RESPONDENT. P3:- COPY OF THE PAPER CUTTING OF THE NOTIFICATION DT. 27TH SEPTEMBER 2006, MALAYALA MANORAMA THOZHIL VEEDHI. P4:- COPY OF THE COUNTER AFFIDAVIT IN WP(C) NO.4467/05 OF THIS HONOURABLE HIGH COURT. P5:- COPY OF THE JUDGMENT IN WPC. 28352/06 (A) DT. 31.10.06 OF THE HONOURABLE HIGH COURT OF KERALA. P6:- COPY OF THE ORDER DT. 22.3.07 ISSUED BY R1. TRUE COPY P.S. TO JUDGE TSS S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 3004 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 29th June, 2009. J U D G M E N T The petitioners are working as Instructors in Physical Education in various Government Polytechnics under the Technical Education Department of the Government of Kerala. They possess the qualification of Master's Degree and M.Phil. in Physical Education. For being appointed as lecturer in Physical Education as per U.G.C Regulations, the petitioners have to pass the National Eligibility Test conducted by the U.G.C. However, by Ext. P1, the U.G.C regulation has been amended, whereby those who have passed M.Phil were also permitted to be considered for appointment as lecturer, although, they did not possess the NET qualification. However, the State Government has not chosen to incorporate that relaxation in qualification in the Collegiate Education Service Rules and as a result, the petitioners are not being considered for appointment as lecturer in Physical Education. At the same time, for filling up the vacancies which have arisen, the respondents are taking steps to recruit candidates through Public Service Commission. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(a) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to take expeditious steps for appointing the petitioners as Lecturer in Physical Education against the vacancies which have arisen with effect from the date of the 2nd amendment to UGC Regulation 2000. (b) issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent not to fill up the vacancies of the Lecturer in Physical Education in Collegiate Education Department on the basis of the written examination conducted by the PSC on 22-9-2006. (c) issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent not to conduct the interview on the basis of the written test conducted on 22.9.2006 W.P.C. No. 3004/07. -: 2 :- for the appointment to the post of Lecturer in Physical Education.” 2. I have heard learned counsel for the petitioner, the learned Government Pleader and learned counsel for the Public Service Commission. 3. The issue involved in this writ petition is no more res integra insofar as a Division Bench of this Court in Biju v. University of Kerala, 2008(1) KLT 707 has spoken on the same. In the same, this Court has held in paragraph 7 as follows: “The contention of the appellants that there is conflict between Exts.P1 and P2, cannot be accepted. It is true, Ext.P2 prescribes something more than that is prescribed under Ext.P1, as a qualification for a Lecturer, who is to teach at undergraduate level. The Regulations of the UGC fixes the benchmark qualifications. If the University or the State Government feels that in the colleges under them, a higher qualification should be prescribed, the same will not amount to a legislation or a subordinate legislation, repugnant to the UGC Act or the Regulations framed thereunder. This view is supported by the decision of the Apex Court in State of Tamil Nadu v. S.V.Bratheep (2004(4) SCC 513). It is a decision, arising under the All India Council for Technical Education Act. Under the Act, the Council has prescribed the minimum marks for admission to the Engineering course. The Government prescribed something more which is higher to the minimum prescription made by the Council. The Apex Court upheld the said decision of the Tamil Nadu Government. The relevant portion of the said decision reads as follows : “Argument advanced on behalf of the respondents is that the purpose of fixing norms by AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr.Preeti Srivastava case (1999) 7 SCC 120) that the State can always fix a further qualification or additional qualification to what has been prescribed by AICTE and that proposition is indisputable. The mere fact that there are vacancies in the colleges would not be a matter which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE, they should be admitted even if they fall short W.P.C. No. 3004/07. -: 3 :- of the criteria prescribed by the State. The scope of the relative entries in the Seventh Schedule to the Constitution has to be understood in the manner as stated in Dr.Preeti Srivastava case and therefore, we need not further elaborate in this case or consider arguments to the contrary such as on application of occupied theory, no power could be exercised under Entry 25 of List III as they would not arise for consideration.............................................................................. In this view of the matter, we think these appeals deserve to be allowed in part and the order of the High Court stands modified to the extent of stating that it is permissible for the State Government to prescribe higher qualifications for purposes of admission to the engineering colleges than what had been prescribed by AICTE and what has been prescribed by the State and considered by us is not contrary to the same but is only complementary or supplementary to it.” In view of the above quoted decision, if something more is prescribed, it cannot be taken as contrary, but only as complementary or supplementary to the prescription already made by the Council. We are of the view that the principles laid down in the above decision will squarely apply to the facts of this case. So, there is no conflict between Exts.P1 and P2. In other words, Ext.P2 is not ultra vires of Ext.P1. In this case by not adopting the relaxation made by the UGC the State Government insists on a higher qualification than that prescribed by the UGC, which issue is squarely covered by the above decision. Therefore, applying the ratio of that decision, I am of opinion that the petitioners cannot succeed in this writ petition. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/