IN THE HIGH COURT OF KERALA AT ERNAKULAM

The Hon'ble MR. Justice T.R. Ramachandran Nair, J.

W.P.(C) No. 30040 of 2011

Dated this the 24th day of February, 2012

Head Note:-

Cochin University of Science and Technology Act, 1986 – Section 39 - the First Statutes will continue to be in force, unless amended or superseded by Statutes in terms of the provisions of Section 39.

J U D G M E N T

1. The petitioner is aggrieved by the proceedings Ext.P1, issued by the University, nominating the sixth respondent as Head of the Department of Atmospheric Sciences.

2. The petitioner's case in a nutshell, is the following: He is presently working as Associate Professor in the Department of Atmospheric Sciences. Out of the six teaching members of the Department, four are Associate Professors/Professors and two are Assistant Professors. As per Statute 18 of the Cochin University of Science and Technology First Statutes, 1991 the Syndicate will have to nominate a teacher not below the rank of Reader as Head of the Department according to seniority, on a rotational basis for a period of three years. It is submitted that the current turn is that of the petitioner, as Prof K. Mohankumar who is the sixth respondent herein, Prof. Babu C.A. and Dr. K.R. Santhosh have already served as Heads of the Department IN TURN during the last three terms, the last one having served for the period from 04-07-2008 to 03-07-2011.It is also the case of the petitioner that the Syndicate had to take a decision but an order is issued nominating the sixth respondent, as per the sanction accorded by the Vice Chancellor.

3. The first respondent has filed a counter affidavit. The stand taken therein is that the petitioner is actually a Lecturer (Selection Grade) and there are only three designations for faculty members, viz. Professors, Readers and Lecturers. Even though UGC Regulations 2010 have been implemented, whereby faculty members will be Assistant Professor, Associate Professor and Professor, the University is still governed by the Cochin University of Science and Technology First Statutes, 1991. In compliance with the UGC Regulations, amendments in the Statutes have not been made so far. It is pointed out that out of the five seniormost faculty members, the petitioner and Dr.V. Madhu are working as Lecturer (Selection Grade) and going by Statute 18, only a teacher not below the rank of Reader can be nominated as Head of the Department. Only if there is no Professor or Reader in a Department, a Lecturer can be nominated and herein there are three other teachers, viz. Dr.K. Mohan Kumar, Dr. C.A.Babu and Dr. K.R. Santhosh. It is also pointed out that the petitioner does not possess Ph.D. which is an essential qualification for promotion to the post of Reader.

4. Heard learned counsel for the petitioner Shri Sreelal Warrier and Shri Shyam Krishnan, learned Standing Counsel for the University.

5. Learned counsel for the petitioner submitted that in the light of the UGC Regulations a redesignation has been made of the post of Lecturer Selection Grade as Associate Professor. It is submitted that the said UGC Regulations have been implemented as permitted by the Government in the Order No. Ad.D2/UGC/PR/2006 dated 22-12-2010. Para 3.1 of the schedule equates Readers and Lecturers Selection Grade who have completed three years, for grant of placement as well as for redesignation as Associate Professor. It is therefore submitted that Statute 18 will have to be read as modified by the UGC Regulations and if that be so, a Lecturer Selection Grade who has been redesignated as Associate Professor will be equivalent to the grade of Reader and hence the petitioner is liable to be appointed as Head of the Department.

6. Learned Standing Counsel for the University, while opposing the prayer, submitted that the Scheme of the UGC regulations which have been implemented now, have been utilised for redesignating the Lecturers concerned for the purpose of granting monetary benefits alone. The implementation of the scheme is not by way of an amendment of the Statute and so far the Statutes have not been amended, including Statute 18. Therefore, the provision relevant as on today will not help the petitioner since he has not been appointed as a Reader at any point of time. For appointment as a Reader, Ph.D. is the qualification. It is therefore submitted that the choice has gone to the sixth respondent.

7. Therefore, the short point is whether it requires an amendment for implementing the UGC scheme, especially in a matter like this. The Government Order implementing the UGC Scheme, under the heading "Revision of Scale of Pay of Teachers in Universities, Affiliated Colleges, Teachers in Law Colleges and Engineering Colleges and Kerala Agricultural University and Teachers in Physical Education and Qualified Librarians, etc." is issued as per G.O.(P) No.392/2010/H.Edn. dated 10-12-2010. Based on the said order, the University herein issued an Administrative Order, viz. No.Ad.D2/UGC/PR/2006 Dated, Kochi - 22, 22-12-2010, for adoption of the Government Order to be implemented by the University.

8. Clauses 4 and 5 of the above Government Order reads as follows:

"4. The Regulations shall come into force with effect from 18-09-2010, ie the date of publication of the Regulations in the Government of India Gazette. 

5. All the Universities shall incorporate the UGC Regulations in their Statutes and Regulations within one month from the date of this order. Government will initiate steps to amend the Acts of the University, if required to implement the Regulations. Government will also initiate steps to amend the Special Rules to give effect to the stipulations of the UGC Regulations."

Therefore, the Regulations are effective from 18-09-2010. Time is provided to the University to incorporate the UGC Regulations in their Statutes within one month from the date of order. The Government will have to initiate steps to amend the Acts of the University, if required. Thus, the Statutes of the respective Universities will have to be amended which admits of no doubt. There is no other method by which UGC regulations could be incorporated, into the Statutes of the University.The benefit obtained by the petitioner by way of redesignation is under clause 6.8.0 read with the schedule. Clause 6.8.0 reads as follows:

"6.8.0. The Schedule annexed to these Regulations outlines the Pay scales, Designations and stages of promotions under CAS of incumbent and newly appointed teachers and equivalent positions in the Library and Physical Education and Sports cadres in Central Universities and Colleges thereunder and institutions deemed to be Universities whose maintenance expenditure is met by the UGC."

Clause 3.1 of the Schedule, as already referred to, is as hereunder:

"3.1. Incumbent Readers and Lecturers (Selection Grade) who have completed three years in the current pay scale of Rs. 12,000 -Rs. 18,300 on 1 January, 2006 shall be placed in Pay Band IV of Rs.37,400 - Rs.67,000 with AGP of Rs.9,000 and shall be redesignated as Associate Professor."

Therefore, monetary benefits along with redesignation have been granted to the petitioner also. The stand taken by the learned counsel for the petitioner vehemently, is that no amendment is required, in the light of the implementation of UGC Scheme.

9. Learned counsel for the petitioner referred to Statutes 2 and 3 of the First Statutes, 1991 and it is submitted that going by Ext.P8, as the amendments have been effected with respect to the designation & minimum qualification of the vacant teaching positions to make the same consistent with the new UGC Regulations, no further amendment is required. The relevant statutes relied on are Statutes 2 and 3 under the Cochin University of Science and Technology  First Statutes, 1991. Statute 2 is under the heading "Institution of posts", which reads as follows:

"2. Institution of posts - The Academic Council shall be competent to institute Professorships, Readerships, Lecturerships and such other teaching posts required by the University in each department on the motion of the Syndicate or on the proposals of Academic Council."

Statute 3 is the under heading "Abolition or Suspension of posts", which reads as follows:

"3. Abolition or Suspension of posts - On the motion of the Syndicate and on report from the Academic Council the senate thereon may abolish or suspend any Professorship, Readership, Lecturership or other teaching posts, provided, however, that no such suspension or abolition shall be made in the case of a post which is not permanently vacant at that time. No such suspension or abolition shall take effect until after Six months, notice has been given to the permanent incumbent."

Going by Statute 2, the Academic Council is competent to institute Professorships, Readerships, Lecturerships and such other teaching posts required by the University in each department on the motion of the Syndicate or on the proposals of Academic Council. Statute 3 confers power on the Syndicate to abolish or suspend any Professorship, Readership, Lecturership or other teaching posts. Therefore, Statute 2 is not the one resorted to by the University to provide for redesignation.  The said Statute will apply only if the Syndicate or the Academic Council seeks to institute Professorship, etc. in each department. Herein, that is not the situation. Consequently, Statute 3 also will not apply. Of course, the case of the petitioner is that the non appointment of the petitioner as Reader is immaterial in the light of the redesignation.

10. The legal position canvassed by the petitioner is clearly covered against him, in the light of the decision of a Division Bench of this Court in S.N. College Vs. N. Raveendran, 2001 (3) KLT 938. The matter concerned was regarding the qualification  for the post of Principal and  the applicability of the provisions of the UGC Scheme. The view taken mainly is that unless the amendments are effected in the University Statutes, the scheme cannot apply.

11. The Division Bench, after elaborately considering the statutory scheme and the relevant order relating to the implementation of the UGC Scheme adopted as per G.O.(P) No.171/99/H.Edn. dated 21-12-1999, held in para 7 as follows:

"The necessary amendments to that effect is yet to be made in the University Statutes. In fact, by the above mentioned Government Order the Director of Collegiate Education was empowered to give approval for all appointments and placements in Private Colleges as envisaged in the UGC scheme. Necessary amendments have to be made in University Statutes and Special Rules wherever necessary to give effect to the stipulations in the Scheme by the Universities concerned and Director of Collegiate Education."

In para 8, it was further held as follows:

"Unless and until amendments are effected in the University statutes the same would not be applicable to the private colleges. Management of private colleges are not bound to follow the same."

But the learned counsel for the petitioner tried to distinguish the said dictum, by relying upon Statutes 2 and 3 of the Statutes, which according to me, will not support the contentions of the petitioner. In fact, the Government Order by which the UGC Scheme was implemented, itself provides for amendment of the Statutes, enactments as well as Government Orders in the matter and therefore the requirement of an amendment is envisaged in the Government Order itself under the relevant clauses quoted already. Therefore, the argument to the contrary, cannot be accepted. In fact, the nature of the UGC Regulations and whether they are mandatory, was considered by another Division Bench of this Court recently, in Mathai Vs. Elizabeth Xavier, 2011 (2) KLT 468. While considering the demand for increase of retirement age, the Division Bench was of the view that they are not mandatory and this Court cannot direct the Government to increase the retirement age. The view taken in para 3 is as follows:

"This court would be justified in directing the Government to increase the retirement age only if we are convinced that the U.G.C. Regulations are mandatory and binding on the State Government and the State has no option to reject it."

It was held further in para 4 that the Regulations are only recommendatory or advisory in nature. I need not go into the legal issues as decided above, since we are only concerned with the question whether, without any amendment, Statute 18 will help the petitioner to get an automatic appointment as the Head of the Department. In fact, under Section 38 of the Cochin University of Science and Technology Act, 1986 various matters which can be provided under the Statutes, have been specified as items (1) to (11) therein. Item (2) is "appointment, conditions of service, powers and duties of the officers, teachers and other employees of the University." Section 39 provides for the procedure for making Statutes and sub-section (1) provides that " the First Statutes of the University shall be made by the Government, by notification in the Gazette and shall continue in force until amended or superseded by Statutes made by the Syndicate in accordance with the provisions of this section." Therefore, the First Statutes will continue to be in force, unless amended or superseded by Statutes in terms of the provisions of Section 39. Therefore, it is not as if without any amendment of Statute 18, the University could have accepted the pleas of the petitioner. Hence, I find no reason to accept the vehement plea raised by the learned counsel for the petitioner that even without an amendment in the light of Statutes 2 and 3, there is already an institution of the post of Associate Professor which will help the petitioner.

12. Even though reference was made to the decisions of the Apex Court in Ch. Tika Ramji and others etc. Vs. The State of Uttar Pradesh and others, AIR 1956 SC 676 and M. Karunanidhi Vs. Union of India and another, (1979) 3 SCC 431, it is not necessary to go into the question whether there is repugnancy, etc. as far as the U.G.C. Regulations and Statutes are concerned and in such cases, which will prevail. Therefore, I am not going into in detail the principles stated in those decisions. For all these reasons, the writ petition fails and the same is dismissed. No costs