IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 16655 of 2007(G) -------------------------- PETITIONER(S): --------------- ARUNKUMAR.V.A., RESIDING AT CLIFF'S HOUSE, NANTHANCODE, THIRUVANANTHAPURAM, (PRINCIPAL-IN-CHARGE JOINT DIRECTOR, IHRD, THIRUVANANTHAPURAM.) BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENT(S): --------------- 1. THE UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM. 2. THE VICE-CHANCELLOR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM. ADDITIONAL RESPONDENT: 3. THE DIRECTOR, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, VAZHUTHAKKAD, THIRUVANANTHAPURAM. (ADDL.R3 IS IMPLEADED AS PER ORDER ON I.A.NO.7433/07 DTD.7.6.07) ADV.M.RAJAGOPALAN NAIR, SC ADV. SRI.P.K.SURESH KUMAR FOR R1 SRI.N.N.SUGUNAPALAN, SC, IHRDE FOR ADDL.R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON 02/07/2009 DELIVERED THE FOLLOWING: W.P.(C).No. 16655/07. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE NOTIFICATION DTD.8.12.05 BY R1. P2. COPY OF THE REGULATIONS RELATING TO REGISTRATION FOR AND THE AWARD OF DEGREE OF DOCTOR OF PHILOSOPHY. P3. COPY OF THE MEMO DTD.16.5.2006 BY R1. P4. COPY OF THE CERTIFICATE DTD.23.5.20006 BY THE DIRECTOR, IHRD. P5. COPY OF THE CERTIFICATE DTD.28.7.2006. P6. COPY OF THE ORDER DTD.9.11.2006 BY R1. P7. COPY OF THE NEWS ITEM IN INDIAN EXPRESS DTD.9.5.07. P8. COPY OF THE REPORT IN MALAYALA MANORAMA DTD.9.5.07. P8A. COPY OF THE REPORT IN MALAYALA MANORAMA DTD.13.5.2007. P9. COPY OF THE OFFICIAL PRESS RELEASE DTD.17.5.07 BY R1. P10. COPY OF THE REPORT IN MALAYALA MANORAMA DTD.17.5.07. P11. COPY OF THE SHOW CAUSE NOTICE DTD.17.5.07. P12. COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER. P13. COPY OF THE REPORT PUBLISHED IN MALAYALA MANORAMA DTD.27.5.07. P14. COPY OF THE UNIVERSITY ORDER DTD.3.8.2007. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE LETTER DTD.10.5.07 BY R1 TO THE DIRECTOR OF IHRD. “B. COPY OF THE LETTER DTD.14.5.07 BY THE DIRECTOR, IHRD. “C. COPY OF THE MINUTES OF the MEETING OF THE STANDING COMMITTEE OF THE SYNDICATE DTD.16.5.07. “D. COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE HELD ON 26.5.07. R3A. COPY OF THE CERTIFICATE DTD.23.5.06 ISSUED TO THE PETITIONER. “B. COPY OF THE CERTIFICATE DTD.28.7.06. “C. COPY OF THE LETTER DTD.10.5.07 BY R1 TO R3. “D. COPY OF THE LETTER TO R1. ANNEXURE I. COPY OF THE MEMORANDUM OF ASSOCIATION AND RULES AND REGULATIONS. “II. COPY OF THE LETTER DTD.4.4.08 BY THE DIRECTOR OF IHRD TO THE COUNSEL. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.16655 of 2007 ================== Dated this the 2nd day of July, 2009 J U D G M E N T The petitioner is a post-graduate Degree holder in Computer Education, working as Principal, in-charge of Joint Director in the Institute of Human Resources Development, Thiruvananthapuram, the 3rd respondent herein. He applied to the 1st respondent University for registration for the degree of Doctor of Philosophy. As per the Regulations framed by the University, registration for Ph.D. is on the basis of an entrance test conducted by the University. However, College/University Teachers with seven years' teaching experience are exempted from writing the entrance test. With the help of Exhibits P4 and P5 certificates regarding experience from the 3rd respondent, which certified that the petitioner `has been under the service of IHRD under various academic responsibilities including teaching from 3rd January 1997', the petitioner sought registration under the said exemption clause. By Exhibit P6 dated 9.11.2006, the University granted registration to the petitioner granting exemption from writing the entrance test. Thereafter news items appeared in the newspapers alleging that the petitioner had no teaching experience and the registration granted to him for Ph.D. was therefore illegal. The news items went on to allege that the petitioner has been unduly favoured, as he is the son of the Chief Minister of the State. The Research Committee of the syndicate of the University enquired into the w.p.c.16655/07 2 allegation, who found that the petitioner did not have any teaching experience and recommended cancellation of the registration. The 2nd respondent Vice-Chancellor of the University accepted the report of the Research Committee subject to approval of the Syndicate and authorised the Registrar of the University to take further proceedings in that regard. The Registrar issued Ext.P.11 show cause notice directing the petitioner to show cause why the registration should not be cancelled. Petitioner submitted Ext. P12 explanation. Ext.P13 news item appeared in the newspapers reporting that the report of the Research Committee recommending cancellation of registration was approved by the Syndicate. It is at that juncture the petitioner filed this Writ Petition challenging Ext. P11 show cause notice, the decision of the Research Committee dated 17.5.2007, the approval of the same by the 2nd respondent and the decision of the Syndicate meeting on 26.7.2007 approving the action of the 2nd respondent. The respondents took notice in the writ petition through counsel. On 11.7.2007 this Court clarified that pendency of the writ petition will not stand in the way of the University taking a final decision in the matter. Thereafter the petitioner was informed by Ext.P14 order dated 3.8.2007 that sanction has been accorded by the syndicate to cancel the Ph.D. Registration of the petitioner and orders are issued accordingly. Therefore, the petitioner got the writ petition amended incorporating challenge against Ext.P14 also. As per the amended w.p.c.16655/07 3 writ petition the petitioner seeks the following reliefs: “(i) to call for the records leading to Exhibit P-11 and to quash the same by the issue of a writ of certiorari or other appropriate writ direction or order. (ii) to call for the records leading to the decision of Syndicate Committee on research and scholarships dated 17.5.2007 and the approval granted by the 2nd respondent for the same as stated in Exhibit P-9 and the decision of the Syndicate meeting held on 26.7.2007 approving the action of the 2nd respondent and to quash the same by the issue of a writ of certiorari or other appropriate writ direction or order; (iii) to declare that the petitioner is entitled to get registration as part time research scholar leading to Ph.D Degree in January 2006 Session as per Exhibit P-6 order of the 1st respondent. And (iv) to grant such other reliefs as this Hon'ble Court may deem fit in the circumstances of the case.” 2. The petitioner raises several grounds, in support of the prayers. The first is violation of principles of natural justice. According to the petitioner, Ext.P11 show cause notice was issued after taking a decision to cancel the registration, since the decision of the Research Committee was approved by the 2nd respondent, whose decision was approved by the Syndicate. Therefore, there was no pre-decisional hearing, which is an essential ingredient of natural justice. He further contends that non-supply of copies of the complaints and the clarification letter from the 3rd respondent after considering which the Research Committee had submitted their recommendation to cancel registration themselves amount to violation of principles of natural justice. Ext.P11 is also attacked on the ground of being ambiguous and not w.p.c.16655/07 4 appraising the petitioner determinatively the case he has to meet. He alleges haste, mala fides and political motivation in the whole proceedings. The registration having been given after all authorities up to the Syndicate having been satisfied about the qualifications of the petitioner, it was not open to the Research Committee and the Syndicate to alter or review the earlier decision and they have no power to revoke the earlier decision, is another ground raised in the writ petition. Lastly the petitioner contends that the petitioner does have seven years of service under the IHRD which is sufficient qualification for granting registration without writing the entrance test. 3. Counter affidavits have been filed by the 1st respondent before and after amendment of the writ petition controverting the contentions of the petitioner. The 3rd respondent has also filed a counter affidavit supporting the experience certificate issued by them to the petitioner. 4. The 1st respondent contends that the petitioner was granted registration on the basis of the experience certificate issued by the 3rd respondent, without probing into its veracity, as the same was issued by a responsible Government organisation. Later, when complaints were received from student organisations alleging that the petitioner does not have sufficient teaching experience, by Ext. R1(a) letter addressed to the 3rd respondent, clarification regarding the teaching experience was sought, who replied by Ext. R1(b). The w.p.c.16655/07 5 syndicate standing committee considered the same in its meeting on 16.5.2007 and found that the petitioner did not possess the required teaching experience for exemption from entrance test and by Ext. R1 (c) minutes, recommended cancellation of the petitioner's registration. The action of the Standing Committee in making the recommendation was approved by the Vice-Chancellor subject to ratification by the Syndicate. The action of the Vice-Chancellor was ratified by the Syndicate in its meeting held on 26.5.07, which is not a ratification of the recommendation, but only part of the procedure of the University. The action of the Vice-Chancellor in causing issue of show cause notice and placing the explanation of the petitioner before the Syndicate was also approved by the Syndicate as evidenced by Ext. R1(d) minutes of the Syndicate meeting held on 26.5.07. According to the 1st respondent, at that time the Syndicate had not considered the matter on merits. The Syndicate took the decision as stated in Ext.P14 after considering the entire matter on merits, including the explanation submitted by the petitioner. According to the 1st respondent, the petitioner did not have the required teaching experience for exemption from appearing in the entrance test and therefore the University had only corrected a mistake committed by them on account of the misrepresentation made by the petitioner. The other allegations raised by the petitioner against the action of the University are also denied in the counter affidavits. w.p.c.16655/07 6 5. In his counter affidavit, the 3rd respondent supports the experience certificate issued by him. According to him, it contains the correct details regarding the service of the petitioner with the IHRD. He would submit that the IHRD was totally unaware of the requirement of the University and the University did not seek any clarification as to whether the certificate satisfies their requirement at that time. When the University requested for details, the same were given. The details are also furnished in the counter affidavit. According to him, the experience of the petitioner is academic in nature categorised as teaching. 6. Counsel on both sides were heard in extenso. I have considered the arguments of both sides. 7. Since a decision in favour of the petitioner on the issue as to whether he possesses the required teaching experience would obviate the necessity to consider the other technical contentions raised by the petitioner, I shall consider that question first. Ext. P3 is the “Regulations relating to Registration for and the award of the Degree of Doctor of Philosophy” framed by the University. Regulation 4 contains the eligibility condition for Registration, which reads thus: “4. Eligibility for Registration Admission for Ph.D. Registration shall be made on the basis of an entrance test conducted by the University. No candidate shall be allowed to apply for the test unless he/she has secured 55% marks and above for his/her qualifying P.G. Degree Examination. SC/ST candidates shall be given a relaxation of 10% marks in Science and 15% marks in other w.p.c.16655/07 7 subjects. However one seat in each subject shall be reserved for SC/ST provided they qualify in the test. A relaxation of 5% marks shall be allowed to candidates with 10 years College teaching experience. Minimum marks for eligibility for registration shall be 50% in the Entrance Test. In the case of SC/ST candidate the minimum marks for eligibility shall be 40%. (a) Candidates who have qualified U.G.C./C.S.I.R./ G.A.T.E. Test or who possess an M.Phil. Degree by Research and Thesis shall be exempted from the test. (b) College/University Teachers with seven years teaching experience be exempted from the purview of Entrance Test. (c) Candidates with D.M/M.Ch. Degrees shall be exempted from appearing for Ph. D. Entrance Test. (d) The Kerala State Level Eligibility Test is considered on par with NET of the UGC for registration for Ph.D. Research. (e) The NET of ICAR shall be treated as equivalent to NET of the UGC for registration for PhD. Research. (f) Scientists/Engineers working in approved Research Laboratories either owned or managed by the Central/State Government or an autonomous Research Institution of National Status, with seven years experience in the grade Scientist/Engineer and having two research papers published in the recognised research journals of the concerned subject approved by the Board of Studies concerned, are exempted from the entrance test required for Ph.D. Registration of the University.” (underlining supplied) Going by the same, for exemption from the entrance test, the applicant should be a college/University teacher with 7 years of teaching experience. Section 2 (7) of the Kerala University Act defines “ College” thus: '“College” means an institution maintained by, or affiliated to the University, in which instruction is provided in accordance with the provisions of the Statutes, Ordinances and Regulations;' Section 2 (27) defines `teacher' thus: '“teacher”, means a principal, professor, associate professor, assistant professor, reader, lecturer, instructor, or such other person imparting w.p.c.16655/07 8 instruction or supervising research in any of the colleges or recognised institutions and whose appointment has been approved by the University;' Section 2 (28) defines `teacher of the University' thus: '“teacher of the University” means a person employed as teacher in any institution maintained by the university;' Since both the counsel for the petitioner and the counsel for the 3rd respondent submitted that the IHRD is running colleges, I asked the counsel for the 3rd respondent whether the petitioner has worked in any of the colleges under the IHRD and the counsel replied that as per the records made available to him, the petitioner has not. But he would contend that this Court has, in W.P.(C).No.3141 of 2004 and W.A. No. 865/06 held that the post of Director of Centre for Adult Continuing Education and Extension, of University of Kerala and the post of Director of Department of Publications of University of Kerala are teaching posts. Therefore, according to counsel, the post of Principal-in-charge of Joint Director discharging academic responsibilities is a teaching post and therefore, the experience put in by the petitioner should be regarded as teaching experience. 8. But, as per the Regulations for exemption from entrance test two conditions have to be satisfied. Firstly, the applicant should be a College/University teacher and secondly he should have seven years of teaching experience. Neither the petitioner nor the 3rd respondent raises a contention that the petitioner is a college teacher or a University teacher. Exts.P4 and P5 certificates produced by the w.p.c.16655/07 9 petitioner along with his application certify thus: “Ext.P4 - “Certified that Sri. Arun Kumar V.A., Principal, in-charge of Joint Director of IHRD has been under the service of IHRD under various academic responsibilities from 03rd January 1997. Ext.P5 - “Certified that Sri. Arun Kumar.V.A, Principal in-charge of Joint Director of IHRD has been under the service of IHRD under various academic responsibilities including teaching from 3rd January 1997”. The only difference between the two is that Ext.P4 does not contain the words “including teaching”, which finds a place in Ext.P5. They do not certify either that the petitioner is a College/University teacher nor that he has 7 years' teaching experience, which are the two requirements for exemption from entrance test. By Ext.R1(a) letter dtd. 10.5.2007, the Registrar addressed the 3rd respondent thus: “In this connection I am to request you to kindly intimate the following details: 1. The details of service of Shri Arun Kumar V.A in the IHRD and the details of various academic responsibilities undertaken by him from 03.01.1997. 2. The details of teaching experience, viz., subject taught, name of institution/institutions and the period of teaching in each institution.” In reply, the 3rd respondent, by Ext. R1(b) dtd. 14.5.2007 informed the Registrar thus: “(i) Shri. Arun Kumar was appointed as Assistant Director, Software Division in the IHRD Head Quarters w.e.f. 3.1.1997 and continued as such upto 16.7.2005. While holding the above position he was assigned with the charge of Joint Director from 16.2.2005. In the meanwhile he was promoted as Principal, College of Applied Science, Kattappana w.e.f. 16.7.2005. Considering the administrative exigencies and shortage of senior staff at IHRD Head Quarters he was posted as Principal-in-charge of Joint Director at IHRD Head Quarters and is continuing as such as on date. w.p.c.16655/07 10 (ii) The service of Shri. Arun Kumar was spared to the Coir Fed from 18.6.1999 to 21.6.2001 on deputation basis vide G.O.No.(Rt) 520/99/10 dt. 15.6.1999. Academic Responsibilities As Assistant Director, Software Division, IHRD Head Quarters, Principal, College of Applied Science, Kattappana and Joint Director in charge, IHRD Head Quarters he has been discharging his academic responsibilities as detailed here under. (i) IHRD being a solution Provider of Software he was put in charge for conducting training programmes and courses for various clients which is purely of academic nature. Government also considered the nature of work of IHRD and recognized the IHRD as a Total Solution Provider (TSP) of Government of Kerala (G.O(Ms) No.62/99/IT dt. 22.4.99). (ii) Conducting online Courses in Linux and introduced several training programmes to Master Trainers and school teachers through IT School which is purely of academic nature. (iii) Provided guidance and assistance for students (graduate/PG level) of Computer Science/IT related subjects for their final years project woks which is also purely academic nature categorized under teaching. In this connection, I am also to inform your (sic) that as per rules the services of an employee spared for a period on deputation basis has to be considered for all his benefits in the parent department/institution and as such the period of deputation of Shri.V.A.Arun Kumar was therefore included for his service benefit and considered as IHRD service as per rule.” Ext.R1(b) also does not disclose that the petitioner worked as a College/University teacher and that he had 7 years' teaching experience. It shows that the petitioner had 9½ years of service of which 7½ years was in the IHRD and 2 years in Coir Fed. It further states that in the IHRD, the petitioner was put in charge for conducting training programmes and courses for various clients which is purely academic in nature. It further states that the petitioner has conducted on line courses in Linux and introduced several training programmes to w.p.c.16655/07 11 master trainers and school teachers through IT school which is purely of academic nature. It is also stated therein that the petitioner provided guidance and assistance for graduate and PG students, for their final year project works which is also purely of academic nature categorised as teaching. The 3rd respondent has tried to rope in the service in Coir Fed also as part of IHRD service, implying thereby that that should also be reckoned for the purpose. By the same the 3rd respondent has strained very much to support the petitioner's claim. At the same time he is cautious enough to state that IHRD was unaware of the requirements of the University, since the University did not furnish any specific proforma for this purpose. But he has sadly failed to prove either that the petitioner is a College/University teacher or that he had 7 years of teaching experience. The experience mentioned in Ext.R1(b), even if academic in nature, hardly qualifies as teaching experience. Therefore, without any doubt, the petitioner did not possess either of the two qualifications prescribed by the Regulations for claiming exemption from entrance test. 9. Therefore, the contention of the 1st respondent that the registration originally granted was under a mistake which has been corrected by cancelling the registration eminently merits acceptance. 10. My above finding itself is sufficient to decline relief in exercise of my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner. However, I shall w.p.c.16655/07 12 consider the other technical contentions raised by the petitioner also since elaborate arguments have been raised on the same also by both sides. 11. The first of the technical contentions raised by the petitioner is that there was no pre-decisional hearing before Ext.P11 show cause notice was issued and the same was issued after taking a decision to cancel the registration of the petitioner, which amounts to violation of principles of natural justice. In support of this contention he points out that in Ext.P11, it is stated that the Standing Committee of the Syndicate on Research and Scholarships at its meeting held on 16.05.2007 recommended to cancel the registration which recommendation had been approved by the Vice Chancellor. In reply, the University, in their counter affidavits, submits that the approval is not for cancelling the registration. According to them, the same is part of the procedure of the University. What the Vice-Chancellor had approved is only the action of the Standing Committee, for further action subject to approval of the Syndicate. Similarly the Syndicate in its meeting held on 26.5.07 only ratified that action of the Vice-Chancellor. According to them, that was ratification of the action in initiating proceedings for cancellation of registration and thereafter the Syndicate took the final decision after considering the reply filed by the petitioner. They therefore, would contend that there is no merit in the contention that there was no pre-decisional hearing. w.p.c.16655/07 13 12. I am inclined to agree with the 1st respondent on this point also. When the Standing Committee, after considering the clarification received from the 3rd respondent on the experience certificate issued by him, came to the conclusion that the petitioner did not possess the required teaching experience and recommended cancellation of the registration, the authority competent to take further action has to consider the recommendation and to decide whether further action is to be initiated on the basis of that recommendation. This only had been done by the Vice-Chancellor and the Syndicate. This is clear from Ext. R1(d) minutes of the Syndicate meeting held on 26.5.2007, which reads thus: “The Syndicate considered and ratified the action taken by the Vice Chancellor in having approved the recommendations of the special meeting of the Standing Committee of the Syndicate on Research and Scholarships held on 16.05.2007 regarding the cancellation of Ph.D. Registration granted to Sri. Arunkumar V.A, Research Scholar in Bio- informatics. The Syndicate also ratified the decision taken by the Vice- Chancellor to issue show cause notice to Sri. Arun Kumar.V.A, directing him to show cause for not cancelling his registration for Ph.D research and to place his explanation in this regard in the Standing Committee of the Syndicate on Research and Scholarships for consideration.” It is pursuant to that decision, Ext.P11 show cause notice was issued which was straight away challenged by the petitioner in this writ petition. In fact in the counter affidavit dated 16.6.2007 of the 1st respondent to the unamended writ petition it is specifically stated thus in paragraph 5: “5. The minutes of the Syndicate meeting would show that the Syndicate had not considered the issue, on merits but only was w.p.c.16655/07 14 considering the correctness of the action of the Vice-Chancellor in approving the recommendations of the Standing Committee. The recommendations of the Standing Committee, it may be noted, are subject to the approval of the Syndicate. It can be further seen that the action of the Vice-Chancellor in issuing a show cause notice to the petitioner and placing the petitioner's explanation before the Standing Committee was also ratified. Thus, the explanation would be considered by the Standing Committee and once again they will make their recommendations and the entire matter would finally be considered by the Syndicate. It is not as if the Syndicate has already considered the matter on merits and has taken a decision. Therefore, the contention of the petitioner that the notice given to him is hit by `useless formality' theory is unfounded.” However, they did not take any further action pursuant to Ext.P11, as the writ petition was filed before taking the final decision. On 11.7.2007, the University obtained