Case: University of Cochin Vs. Dr. N. Raman Nair and Others

1. The University of Cochin was granted special leave to appeal to this Court against the Judgment and order of the Kerala High Court allowing a Writ Petition of the respondent Dr. N. Raman Nair who had applied unsuccessfully onfor the post of Reader in the Department of Hindi after coming into force of the Cochin University Act 30 of 1971 (hereinafter referred to as the Act) The High Court had quashed a resolution passed by the Syndicate onfor appointing Dr. A. Ramchandra Dev to the post. The High Court had also quashed the resolution of the Syndicate of the University passed onthe relevant part of which runs asthat1. the rules mentioned under Section 6 (2) of the Cochin University Act, 1971 be implemented in the case of teaching staff as a class except in the case of post of Professor which shall be filled up exclusively in consideration of merit; but the reservation quota against this category should be provided additionally in the category should be provided additionally in the category of Readers. Lecturers, Teaching Assistant, etc., takenhad directed the University to make appointments in confirmity with Section 6 (2) of the Act. Section 6 lays downUniversity open to All Classes and CreedsNo person shall on grounds only of religion race, caste, sex, descent place of birth residence, language political opinion or any of them, be ineligible for oragainst in respect of any employment or office under the University or membership of any of the authorities or bodies of the University or admission to any degree or course of study in the University.(2) In making appointments to posts in any service, class or category under the University, the University shall mutatis mutandis, observed the provisions of Clauses (a), (b) and (c) of rule 14 and the provisions of Rules 15, 16 and 17 of the Kerala State and Subordinate Service Rules as demanded from time to time.

Reasoning:
In doing so it may appear that the principle of equality of opportunity on the basis of individual merit is being modified. Even if that be the result, the wider object is to promote equality between groups of citizens.Sections 6 (2) lays down the mandatory duty upon the University to observe clauses (a), (b) and (c) of Rule 14 as well as Rules 15, 16 and 17 of the Rules set out above. But it does not indicate the manner in which the classification of members of a service under the University has to be made for the purposes of applying these rules. Inasmuch as every statutory power to be exercised reasonably we can say that the classification has to be reasonable. Thus, the University may treat all the teaching of posts as belonging to one class for the application of the rules. On the other hand it may treat only posts of Readers in all subjects or in a particular subject as a category by itself for the application of these rules. It cannot exempt any class or category such as Professors from the operation of the rules altogether. Only if it so classifies all posts in a service under the University as to make its classification prima facie unreasonable, could the validity of the classification made by it be assailed. The power is presumed to be exercised reasonably on the strength of facts and circumstances relevant for purposes intended to be achieved by the classification. These purposes have also to pass the test of legality and constitutionality.6. Clause (c) of Rule 14 lays down a Scheme of rotation for every block of 20 vacancies. But it does not specifically say that the rule of rotation will be applied in the order in which vacancies occur. We however think that by necessary implication the rule is intended to be applied to vacancies in the order in which they occur. It could not be meant to be applied with reference to the date on which a vacancy is announced or advertised because these are fortuitous matters over which those in power in the University may, if so inclined be able to exercise control. The whole object of such rules is to introduce fixity of principle and of the method of its application so as to remove, so far as possible, uncertainty and opportunities for abuse of power. That being the object of such a rule it seems obvious to us that the rule must have been intended to operate with reference to the dates on which the vacancies occur and not with reference to some other events such as the dates of declaration or advertisement of the vacancies.7. The rules were made by the Government in 1967, hence, the note occurs at the bottom of Rule 15 that the rotation provided for will commence fromThis could not obviously be done under the Cochin University Act 30 of 1971which was published in the State Gazette onTherefore for the purposes of applying these rules to the University the rotation could only apply to vacancies existing on the date when the Act came into force and in the order in which they had occurred.8. It appears that the Syndicate of the University appointed a Standing Committee to draw up a list of the vacancies in the class of posts with which we are concerned at the time when the Act came into force under which the appointments were to be made in accordance with the rotation rules.The above mentioned document was signed by the Pro. Vice Chancellor of the University. It indicates that the vacancy of a Reader in the Department of Hindi was the first to occur. But instead of allocating it to the open competition class for the purposes of applying the rotation rule it was allocated to the reserved block of posts. This was also an illegality complained of by the respondent Dr. Nair.The stand of the University was that it had followed the rotation rule according to which appointments were to be made alternately by a general or open competition and by choice, restricted to backward groups. Dr. A. Ramchandra Dev however took up the position that the University could even alter the rules inasmuch as it had the power to apply them "mutatis mutandis" according to situations as they arose. It appears that at the time of arguments in the High Court the University adopted the stand of Dr. A. Ramchandra Dev on this question. It seems to have been contended in the High Court on behalf of the University that it was empowered to make the changes in the rules to meet the particular needs of the University so as to enable it to implement the provisions of Section 6 (2) of the Act in the way it thought fit.11. We think that the High Court was right in holding that the power to apply the rules "mutatis mutandis" does not include the power of amending the substantial provisions in the rules. The High Court held : "Formal and inconsequential changes for dovetailing the rules into theof the Act alone seems to be contemplated". We think that the High Court was right in confining the power of the University to making only what are necessary "adaptations" so as to make the rules applicable to those in the service of the University in place of the Government servants for whom they were promulgated. It could include a power to ignore only such parts as may be inapplicable or in conflict with the Act itself. An instance of this would be as pointed out above commencement of the application of the rules after the Act came into force instead of in 1967 when according to a note in Rule 15 the Rules had to be enforced. The High Court rightly held that the Syndicate could not in any case alter the provisions of Section 6 (2) of the Act itself which made it incumbent on the University to apply the rotation rule as contemplated under the rules to every "service class or category under the University". It held that "If Section 6 (2) were to operate on its own terms made by the post of Reader for the first time made by the University should in the first turn go to the candidate adjudged best on open competition and only on the next turn or turns to candidates on the principle of communal rotation".12. If the post of Reader in the Department of Hindi was the first to arise in service under the University as appears to be the position from Ex.an application of the rotation principle would compel the first appointment to take place on the basis of an open competition. That principle could certainly not be modified by the University by taking shelter behind the words "mutatis mutandis". It has been stated by the learned Counsel for the University that the validity of the impugned resolution may be doubtful so far as the withdrawal of the post of Professor form the application of the abovementioned rules is concerned but learned Counsel submitted we need not decide that question as we are not concerned here with an appointment to the post of a Professor. If however the Professors and Lecturers and Readers were all to fall in one class it may become necessary to consider this question also. Moreover we indicated below the two parts of the resolution do not seem to be separable. It is true that Section 6(2) lodges in the University power to determine what should constitute a class or category of service under the University. No rigid formula to fit all circumstances can be laid down and the authority concerned must be left to define subject to constitutional limitations what should be a class or category. But this power would not, in our opinion, enable the University to dispense with the application of the rotation principle itself to any particular class or category of service under the University as appears to have been the real object of the resolution ofwith regard to Professors.13. The word service does seem to us to denote, as the High Court held, various classes or categories of posts within it. It is obviously the widest class a classification which puts the whole teaching staff in one class for purposes of applying the rule would seem unassailable. But one which puts all classes and categories of service from the peons to Professors together may be destroying the distinction between classes and categories of service, seems to run counter to the words used in section 6 (2). As that question is not before us, we refrain from deciding it. This provision appears to us to be intended to ensure that whatever may be kind of post to be held by a person in a service "under the University" principles laid down in Rules 14, 15, 16 and 17 must apply in making appointments to it. We are not called upon to decide here what is meant by a service "under the University" as it is admitted by both sides that this description applies to the post of a Reader. Nor have we to determine here the reasonableness of a classification which may put the teaching andstaff in one class orthat is all it was meant to do apart from attempting to place posts of Professors outside rules 14 to 17, the intention is expressed in every unsatisfactory and misleading language. It is of course open to the University to pass a resolution which does not contravene Section 6 (2) of the Act. A resolution which merely classifies or categories posts in a reasonable manner would not offend against statutory provisions. The resolution ofis however at least partly invalid on the face of it by attempting to place appointments to the post of a Professor outside the reservation and rotation rules altogether and it is partly at least ambiguous so that it is difficult to decipher its exact meaning. The second part seems designed in so far as one may guess its meaning to provide for "Other Backward Classes" a compensatory quote of reserved appointments in a category other than that of Professors in lieu of the removal of posts of Professors from subjection to the rules. If this is the real object as it seems to be the intention was to alter the scope or ambit of the rotation rule. The second part is apparently a consequence of the exclusion of the Professors from the operation of the rules ....... which is itself not permissible ..... and not an adaptation for the purposes of applying the rules to the University. Thus the two parts seem to be inseparable. We therefore consider the resolution to be wholly invalid. The validity of Section 6 (2) has not been questioned either in the High Court or here.15. We have been informed at the Bar that both the 1st and the 3rd Respondents, that is to say Dr. Nair and Dr. Ramchandra Dev are at present holding posts of Readers in the Hindi department as the needs of the University have expanded. It may however be necessary to determine the order of their appointments after the University has laid down its own method of reasonable classification either of the whole teaching staff of the University collectively or by putting various categories of the teaching staff into separate compartments for the application of the rules. We have held that the University has this power provided it is exercised on good and reasonable grounds. We have only indicated that on such facts as have come to our notice the particular vacancy for which both Dr. Raman Nair and Dr. Ramchandra Dev were competing seemed to us to be the first to arise for the purposes of applying Section 6 (2) of the Act. As this matter was not fully investigated and the power is vested in the University to make its own classification within the limits indicated by us, we think that it is desirable that the University should be left to make its own reasonable classification in accordance with the principles laid down above by us so as to determine which of the two Readers was entitled to be appointed earlier. In other words the Syndicate of the University will have to pass a fresh resolution which is in accordance with the law as explained by us and then to apply the rules in conformity with such a resolution in exercise of the powers possessed by the University.