IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 28TH JANUARY 2008 / 8TH MAGHA 1929 WA.No. 223 of 2008 --------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.17928/2007 .................... APPELLANT/ 4TH RESPONDENT: ----------------------------------------------- K.RAHMATHULLAH ,LECTURER IN MATHEMATICS UNIVERSITY OF KERALA, RESIDING AT SAINA NIVAS,NEAR MUNICIPAL TOWN HALL, ATTINGAL. BY ADV. SRI.R.RAJASEKHARAN PILLAI, ADV. SMT.SABINA JAYAN. RESPONDENTS: ----------------------- 1. B.THALMI,LECTURER IN MATHEMATICS, RESIDING AT TC 25/1037-(I) EAST THAMBANOOR, THYCAUD PO, THIRUVANANTHAPURAM. 2. THE UNIVERSITY OF KERALA REPRESENTED BY THE REGISTRAR UNIVERSITY BUILDINGS,THIRUVANANTHAPURAM. 3. THE VICE CHANCELLOR UNIVERSITY OF KERALA, UNIVERSITY BUILDINGS,THIRUVANANTHAPURAM. 4. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI. K. SANDESH RAJA, ADV. SRI.V.JAYAKUMAR, ADV. SRI.M.RAJAGOPALAN NAIR-SC FOR KERALA UTY., THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------- W.A.NO.223 OF 2008 -------------------------------------------------------------- Dated this the 28th day of January, 2008. JUDGMENT Balakrishnan Nair, J: The 4th respondent in the writ petition is the appellant. The writ petitioner and the appellant were the candidates, who applied for appointment to the post of Lecturer in the Department of Mathematics in the University of Kerala. It was a post reserved for the Muslim community. Ext.P1 was the notification issued. The relevant portion of the qualification prescribed for this post reads as follows: “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. Note 1 Candidates besides fulfilling the above qualification should have cleared the eligibility test for Lecturership conducted by the UGC, CSIR or similar tests accredited by the UGC. However, the candidates who have completed M.Phil Degree by 31st December, 1993 or have submitted Ph.D thesis in the concerned W.A.No.223/08 . 2 subject on or before 31st December, 2002 are exempted from appearing in the NET examination. In case such candidates fail to obtain Ph.D degree, they shall have to pass the NET examination”. 2. The writ petitioner was having all the requisite qualifications. According to him, admittedly the 4th respondent was not having the NET qualification. But he claimed exemption on the ground that he completed the M.Phil degree on 31.12.1993. The University accepted the claim of the 4th respondent and selected him for appointment The writ petition was filed challenging the said selection. 3. The petitioner mainly relied on the decisions of this Court in O.P.No.11436/1996 and the decision in W.A.No.487/1998 arising out of the said judgment. The appellant herein was a party respondent to those judgments. The learned Single Judge held in O.P.No.11436/1996 that the petitioner acquired the necessary qualification of passing M.Phil degree only on 5.6.1995. His claim that he passed M.Phil degree on 31.12.1993 was repelled. In W.A.No.487/1998 the said decision was affirmed. The relevant portion of the appellate judgment reads as follows: W.A.No.223/08 . 3 “Assuming for a moment that such an order (Annexure II) referred supra is valid, as far as the present case is concerned, it may be pointed out that the appellant did not submit his thesis before 31st December, 1993 and that being so, he does not satisfy the second condition. That being the factual position the appellant cannot claim any benefit by virtue of the said order. That apart we are at loss to understand what prompted the Syndicate to take such a decision. It cannot be disputed that Viva Voce is also part of the examination. A candidate will not be eligible to get his M.Phil degree unless appears in the Viva Voce and obtain required marks. Admittedly here in this case Viva Voce was conducted only on 26. 4.1995. If that is so, to give a retrospective effect and to declare that once candidates get through the examination successfully the degree will be dated as 31st December, 1993 is arbitrary, irrational, illogical and without any basis what so ever. We do not understand the purpose or object for which such an order came to be passed. Such an order cannot be justified in the eye of law. 11. In this view of the matter we hold that there are absolutely no merits in the writ appeal and the same is liable to be dismissed. 12. We are inclined to award costs of Rs.2000/= (Rs. Two thousand only) payable by the appellant to the 6th respondent for two reasons. (1) The appeal is totally devoid of merits and (2) while in the additional counter affidavit filed by the appellant in the original petition on 23.10.1996 it is clearly stated that dissertation was submitted in April, 1994, a reading of 'Ground B' in this appeal would give a very clear and irresistable impression that the appellant submitted his dissertation before 31.12.1993. We do not understand how the appellant can make such a statement in the said Ground B, which is contrary to his own admitted W.A.No.223/08 . 4 case before the learned Single Judge in his additional counter affidavit. For the reasons stated above the appeal shall stand dismissed with costs as indicated above.” The appellant who was mulcted with costs in that writ appeal is none other than the appellant herein. 4. Relying on the above decision of the Division Bench, the writ petitioner contended that the 4th respondent/ appellant herein was not qualified and therefore his selection is liable to be set aside. The appellant contended that as he submitted the dissertation before 31.12.1993, he should be treated as having completed the degree by the said date. But, the learned Single Judge overruled the said contention and held that completion of degree means not completion of the course. On the basis of the above finding, the writ petition was allowed and the selection of the appellant was set aside and a direction was issued to appoint the writ petitioner. 5. The appellant challenges the said decision of the learned Single Judge contending that Ext.P9 decision cannot be made applicable as W.A.No.223/08 . 5 it was rendered when the qualification prescribed under the earlier regulations that the candidate should have acquired M.Phil by 31.12.1993 for exemption from NET qualification was remaining in force. As per Annexure II A produced along with a petition to receive the same in this writ appeal, the prescribed qualification is as follows: “NET shall remain the compulsory requirement for appointment as Lecturer even for candidates having Ph.D degree. However, the candidates who have completed M.Phil Degree by 31st December 1993 or have submitted Ph.D thesis to the exempted from appearing in he NET examination”. 6. Now, as per Annexure II A the prescribed qualification is only completion of M.Phil degree. It does not mean acquisition of M.Phil degree, it is submited. Ext.P9 decision relied on by the learned Single Judge, therefore, can have no application, it is submitted. The learned counsel for the appellant also explained the inordinate delay from the part of the University in holding the Viva and awarding the degree. The learned counsel also relied on the W.A.No.223/08 . 6 submissions made in the counter affidavit of the University at paragraph 4. So, the University has taken a decision to treat that those who have cleared examination during the relevant period shall be treated as having acquired the M.Phil degree before 31.12.1993. So, the appellant is deemed to be qualified, it is submitted. 7. In this case we are concerned with the prescribed qualification which means that the candidate must complete the degree by 31.12.1993. It is not disputed that the Vivo Voce of the M.Phil examination taken by the petitioner was held only in April,1995. Viva is an integral part of the examination, which led to award of a degree. A candidate who completed the examination only in 1995 cannot be treated as having completed the degree in 1993. Therefore, what ever be the stand of the University, the petitioner cannot be treated as qualified in terms of the notification. The efforts made by the learned counsel for the appellant to get over the decision in Ext.P9 cannot be accepted. It is an inter party judgment. Unless it is reversed in appeal or corrected in review, the same will bind the parties thereto, even if it is demonstrably wrong. As the appellant does not have the requisite qualification, the writ petition was rightly allowed. W.A.No.223/08 . 7 In the result, we find nothing wrong with the decision of the learned Single Judge and accordingly the writ appeal is dismissed. BALAKRISHNAN NAIR , JUDGE P.N. RAVINDRAN, JUDGE. cl