Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta and V. Ramasubramanian*, JJ., reversed the impugned order of the Allahabad High Court holding that where no particular qualification, particularly Master’s Degree in ‘Karm Kand’ was prescribed for the post of Lecturer in ‘Karm Kand’ either by the University Statute or in the advertisement, candidature of the appellant could not be rejected for not holding a Master’s degree in ‘Karm Kand’.

Opining that the appellant’s rejection was a result of stale relationship of the Chancellor and the Vice-Chancellor, the Bench commented,

“…perhaps the entire selection process undertaken in 2006 by the University, became victims of the crossfire between the Chancellor and the Vice-Chancellor.”

Background

In the instant case, the appellant had approached the Court to assail the impugned order of the Allahabad High Court, which had dismissed his writ petition seeking to quash an order of the Chancellor of the Mahatma Gandhi Kashi Vidyapeeth University, rejecting his request to be appointed as Lecturer (Karm Kand). Admittedly, the appellant was engaged as a Guest Lecturer on remuneration from the year 2006 and ever since, he had been teaching students undergoing a one year diploma course in ‘Karm Kand’ for the past nearly 16 years.

Noticeably, the University had invited applications for appointment to the post of lecturer in “Karm Kand”. The genesis of the dispute was that though the Selection Committee had recommended the appellant’s name for appointment but the Executive Council disagreed on the ground that the Vice-Chancellor failed to request the Chancellor to nominate subject experts in the Selection Committee. Hence, initial objection was that the Selection Committee did not include the subject experts nominated by the Chancellor.

Issue before the High Court

Noting that there were no subject experts in ‘Karm Kand’, as no University was offering a specific course in ‘Karm Kand’, the High Court remanded the matter back to the Chancellor to ascertain whether subject experts were actually available and whether the failure of the Vice Chancellor to seek nomination of such experts from the Chancellor vitiated the whole process. Finding that the answer to the said question was too difficult to be provided, the Chancellor went on a detour to find out what are the differences between the subject of Sanskrit and the subject of ‘Karm Kand’. Consequently, the Chancellor held that the appellant did not hold a Master’s degree in ‘Karm Kand’; hence he did not possess the prescribed qualifications for appointment.

Analysis and Findings

Contrary to the order of the Chancellor, the Bench noted that the advertisement did not specify particularly that a candidate applying for the post of Lecturer in ‘Karm Kand’ should hold a Master’s Degree in ‘Karm Kand’. Similarly, the University Statutes did not prescribe any specific qualifications necessary for appointment to the post of Lecturer in ‘Karm Kand’, hence the Bench opined that in the absence of any specific prescription, the University ought to have referred the question of what constitutes relevant subjects, before the process of selection began. Further, the Bench observed that neither the University nor the Chancellor took a stand in the first instance that the appellant was not qualified in the “relevant subject”.

Considering that no candidate was available with a post graduate degree in ‘Karm Kand’ and the Selection Committee which comprised of a representative of the Department of Sanskrit found the appellant to possess a Master’s degree in the relevant subject. Another development that strengthen the case in favour of the appellant was that the Department of Sanskrit by a subsequent meeting had apprised that the Academic Qualification of the Karm Kand and for the post of Professor of Sanskrit be kept one and the same as well as the Specialized experience of karm kand be stipulated as compulsory which was passed unanimously.

Verdict

In the backdrop of above, the Bench opined that dismissal by the High Court was clearly erroneous. The Bench commented,

“…it is time for the University to put an end to this ‘Yuddh Kand’ and allow the appellant to move from ‘Karm Kand’ to ‘Karm Phal Kand’.”

Consequently, the appeal was allowed and the impugned order was set aside. The University was directed to regularize the services of the appellant.

[Dinesh Chandra Shukla v. State of U.P., 2022 SCC OnLine SC 353, decided on 24-03-2022]


*Judgment by: Justice V. Ramasubramanian


Appearance by:

For the Petitioner: Advocate Sneha Kalita

For the Respondents: Advocates Sandeep Devashish Das, Sanjay Kumar Tyagi and Kamakshi S. Mehlwal


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsSupreme Court

Supreme Court: While addressing the question of law with regard to lifespan of relinquishment of claim for consideration for promotion in educational institutions, the Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed,

“…the paramount consideration not to disrupt the academic and research work of a senior Professor when his turn arises and if he has shown unwillingness, his seniority has to be given its predominance and opportunity be available to him to serve when the next rotation becomes due…”

The instant appeal had been preferred to assail the judgment of the Kerala High Court whereby it had set aside the judgment of the Single Judge and directed the Cochin University of Science and Technology to nominate respondent 1 as Head of the Department (HOD) of School of Management Studies of Cochin University.

Background

Notably, both the appellant and respondent 1 were members of the teaching faculty and the appellant was senior to respondent 1. In terms of Section 39(1) of the University Act, the Government of Kerala framed its Statute 18 envisaging the appointment of a Director/HOD. The crux of the issue was that the appellant being the next senior most Professor in queue was eligible to be nominated by rotation as HOD in the year 2017, however, because of his preoccupation in teaching and research he had expressed his unwillingness to be considered for the post. Accordingly, the next eligible Professor Dr. Mavoothu D. was nominated as Director/HOD for a period of three years.

It was the case of the appellant that before the term of Dr. Mavoothu D was going to expire; he had showed his willingness at that stage for appointment as Director/HOD. At the same time, respondent 1 who was next to the appellant in seniority equally protested the claim of the appellant.

Statute 18

The Syndicate of the University observed that the relinquishment made by the appellant was specific to the nomination in the year 2017 and that was the reason Dr. Mavoothu D. was nominated. Taking note of Statute 18; that the rotation begins according to seniority and not at the point at which earlier nomination was made, the University held that the appellant had to be considered first.  The reasoning given by the University was that it gives paramount importance to academic and research work and doesn’t want to disrupt the academic and research work of a senior Professor when his turn arises but intend to nominate the teacher after those activities are over and accordingly recommended the name of the appellant to be appointed as HOD.

Relinquishment of promotion; whether transitory or perpetual?

Challenging the order of the University, the respondent 1 had approached the High Court, the Single Judge had observed that the senior most person had to be considered for appointment as HOD/Director of the Department on rotational basis for a period of three years and the appellant who had relinquished his claim on rotation of three years in the year 2017 had expressed his unwillingness only for the period when his name came for consideration in 2017 but the time when a fresh consideration had taken place, the appellant could not be denied his right of fair consideration as the relinquishment could not be for an infinite period.

However, by the impugned judgment, the findings of the Single Judge was overturned by the Division Bench on the premise that Statute 18 conspicuously takes note of seniority on a rotational basis for a period of three years and once the relinquishment was made by the appellant in terms of the Statute 18, the appellant had foregone his right of consideration for all times to come and respondent 1, who was the next in queue, was to be considered for nomination.

Analysis and Findings

Noticeably, what is being envisaged from Statute 18 is that teachers who are eligible for being considered for HOD according to seniority on a rotational basis for a period of three years, if shows unwillingness or makes a request to be relieved from such a responsibility for academic reason, can certainly be relieved for that rotation but there is no prohibition which deprives the teacher from being considered for appointment as HOD when the second rotational term becomes due. However, it was not in dispute that earlier on two different occasions, the Professors who had shown their unwillingness at one point of time were considered by the University when the second rotational term became due because of his/her seniority and eligibility to be nominated for the post of Director/HOD.

Relying on in N. Suresh Nathan v. Union of India, 1992 Supp.(1) SCC 584., wherein it had been held that “past practice which is being followed for long time if not contrary to law, be given its true precedence and ordinarily not to be interfered by the Courts in exercise of power of judicial review under Article 226 of the Constitution of India”, the Bench opined, although there was no prohibition under Statute 18, still if two views are possible and the University had interpreted in the way which serves the purpose keeping in view the paramount consideration to the academic and research work and the seniority of the teachers while considering for appointment as HOD, the same could not be called inappropriate and unjust.

Since, the appellant had relinquished his claim in the year 2017 because of undergoing research work at that time, the Bench opined that keeping in view the paramount consideration not to disrupt the academic and research work of a senior Professor when his turn arises and if he has shown unwillingness, his seniority has to be given its predominance and opportunity be available to him to serve when the next rotation becomes due and that was the reason the appellant was also considered and recommended by the Syndicate to be nominated as HOD/Director School of Management Studies keeping in view the mandate of the Statute.

Conclusion

In the light of above, the Bench concluded that the interference made by the Division Bench in interpreting Statute 18 of the University wa not sustainable in law and deserved to be set aside. Consequently, the appeal was allowed and the impugned judgment was quashed and set aside.

Jagathy Raj V.P. v. Rajitha Kumar S., 2022 SCC OnLine SC 152, decided on 07-02-2022]


*Judgment by: Justice Ajay Rastogi


Appearance by:

For the Appellant: P.S. Patwalia, Senior Advocate

For Respondent 1: Bina Madhavan, Advocate


Kamini Sharma, Editorial Assistant has put this report together 


 

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah and B.V. Nagarathna*, JJ., held that the action of the selectively applying the proviso to Rule 25(a) in relation  to one person, while not applying the said proviso in relation to similarly situated persons, is arbitrary and therefore illegal. The Bench stated,

“We accept the settled position of law that the rule applicable in matters of determination of pension is that which exists at the time of retirement, we are unable to find any legal basis in the action of the respondent University of selectively allowing the benefit of Rule 25 (a).”

Factual Matrix

The appellant joined as a Lecturer in the School of Legal Studies in Cochin University of Science and Technology on 07-09-1984. Prior to such appointment, the appellant was a lawyer practising in the District Court and Subordinate Courts and High Court of Kerala. The appellant made a representation before the Registrar of the University, requesting to reckon his practice of eight years at the Bar for the purpose of determining his pensionary benefits payable to him on his superannuation as provided under Rule 25 (a), Part III of Kerala Service Rules.

The respondent rejected the request of the appellant on the ground that the proviso to Rule 25 (a), Part III, KSR provides that the benefit under Rule 25 (a) would be available only to such employees who are recruited when practising at the Bar, to those posts requiring a qualification in law and experience at the Bar. Therefore, the respondent opined that since experience at the Bar was not essential for appointment to teaching posts at the University, the question of reckoning previous experience at the Bar would not arise in relation to the appellant.

The appellant stated in his appeal petition before the Chancellor that the proviso to Rule 25 (a), Part III, KSR was inserted in said Rule with effect from 12th February 1985. The appellant contended that the proviso could not be made applicable to him as the same was not in force as on the date on which he joined service at the respondent University. On the other hand, the respondent maintained that the Government or any other statutory body has the right to modify the service conditions, even retrospectively. The respondent further stated that since the proviso was introduced in Rule 25 (a) while the appellant was still in service, the proviso would apply to him.

Findings of the Court

Noticeably, in the case of one Dr. P. Leela Krishnan, a Professor of Law who was similarly situated as the appellant, the respondent University had duly considered the period of practice at the Bar as a part of qualifying service for the purpose of determining pension payable on superannuation, as perusal of extracts from the pension book of Dr. P. Leela Krishnan, revealed that his experience of practice at the Bar of 7 years, 2 months and 26 days was added to the period of his service at the  University, being 26 years, 9 months and 2 days. Accordingly, the respondent University had in determining his superannuation pension, considered 33 years, 7 months and 4 days as the qualifying period of service.

“Considering that no argument had been advanced on behalf of the respondents as to the manner in which the case of the appellant is different from that of Dr. P. Leela Krishnan and on what basis the benefit of Rule 25 (a) was granted to Dr. P. Leela Krishnan but was withheld in relation to the appellant.”

Pointing out the similarities between the two, the Bench stated, both these individuals were appointed as teaching faculty at the respondent University after practicing as advocates in various Courts of Kerala. They were both appointed before the proviso to Rule 25 (a) came into effect, i.e. before 12-02-1985 and retired after the said proviso came into force.

“In the circumstances, we find no valid ground to sustain the application of the proviso in relation to the appellant, thereby denying the benefit of Rule 21 25(a), when the same was not applied in the case of Dr. P. Leela Krishnan, thereby allowing the benefit of Rule 25(a).”

The law, as recognized in Deoki Nandan Prasad v. State of Bihar, (1971) 2 SCC 330, and Government of Andhra Pradesh v. Syed Yousuddin Ahmed, (1997) 7 SCC 24, states that the pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement. However, the Bench stated, law does not allow the employer to apply the rules differently in relation to persons who are similarly situated. Therefore, the Bench opined that if the respondent University sought to deny the benefit of Rule 25 (a), in light of the proviso which was subsequently inserted thereby limiting the benefit of the Rule, it ought to have done so uniformly; as the proviso could have been made applicable in relation to all employees who retired from service of the respondent University following the introduction of the proviso, i.e. after 12-02-1985.

Conclusion

In the light of above, the Bench held that the denial of the benefit under Rule 25 (a), KSR, to the appellant was arbitrary and not in accordance with law. Consequently, the appellant was held entitled to receive pension having regard to his total qualifying service, inclusive of the period of his service at the respondent University and the period of his practice as an Advocate in various Courts of Kerala.

Accordingly, the impugned judgment of the High Court, whereby it was approved the action of respondent university was set aside. The respondent University was directed to calculate the amount of pension short paid to the appellant from the date of his superannuation and disburse such amount together with interest at the rate 5% p.a. till date of payment in favour of the appellant.

[G. Sadasivan Nair v. Cochin University of Science and Technology, 2021 SCC OnLine SC 1155, decided on 01-12-2021]


Kamini Sharma, Editorial Assistance has put this report together 


Appearance by:

For the Appellant: K.P. Kylasanatha Pillay, Senior Counsel along with Sajith P. Warrier, Counsel

For the Respondents: Malini Poduval, Counsel

For the State: G. Prakash Counsel


*Judgment by: Justice B.V. Nagarathna

 

Tags: Service Law, Government Servant, University, Teacher, Bar Council, Experience, Retirement, Superannuation, Pension

Case BriefsHigh Courts

Gujarat High Court: Sangeeta K. Vishen, J., allowed an application directing the respondent to allow the petitioner to appear in the examination for the subject – Foundation Engineering while observing that technical glitches could be faced during an online examination.

The petitioner, an engineering student had approached the High Court against the Gujarat Technological University which had barred him to appear for the pre-check trial test declaring that he had failed in the test which was conducted for the subject. The counsel for the petitioner, N.M. Kapadia contended that the petitioner was unable to answer the entire set of questions due to technical glitches during the online examination. He further contended that when the pre-check trial test was conducted on 15-9-2020, the technical glitch was again experienced by the petitioner as well as other students. Accordingly, the University, on the same day had tweeted that “Students who are not able to successfully submit today’s Pre-check trial test can re-appear tomorrow i.e. 16-9-2020 from 11:00 to 11:30 AM Login will start from 10:15 AM Students can appear using the same credentials used by them today and that are displayed in their student portal.” It was submitted that thereafter, the petitioner had appeared in the pre-check trial test on 16-9-2020. It was further contended that as is discernible from the contents of the affidavit-in-reply filed by the respondent 1 – University, it suggests that there is the least likelihood of any malfunction. The University does not say that there was no malfunction in the system. The stand of the University was that remedial examination was available to the petitioner, as the petitioner had failed in one of the subjects; the same would grossly affect the career of the petitioner inasmuch as, the petitioner will carry two mark sheets for the same subject, for no fault of him. It was contended that right to education is a fundamental right and the same cannot be tinkered with by the University in such a fashion.

The Court while allowing the application directed the respondent to allow the petitioner to appear in the examination for the subject – Foundation Engineering. The Court further observed that the fact that the situation complained of was beyond his control and stated that

As the technology is and we all know, it has the tendency of uncertainties, be it network issues, device issues, etc. When working with technology, technical glitches cannot be ruled out and must be taken into consideration.”

[Harsh Hiteshbhai Gandhi v. Gujarat Technological University, 2020 SCC OnLine Guj 1328, decided on 18-09-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Madhya Pradesh High Court: This petition was filed before the Bench of S.C. Sharma and Virender Singh, JJ., stating that the Society of the petitioner was a registered Society under the M.P. Society Registrikaran Adhiniyam, 1973 and was running a College in the style of Shri Dadaji College, Satwas.

It was contended by the petitioner that they were entitled to 50% affiliation fees as the College was located in Sub-District Level. It was brought before Court that earlier also petitioner had filed a petition which was decided by this Court by an order on record whereby the Division Bench had directed the respondent university to pass a speaking order. As a consequence of above respondent had passed a speaking order which is on record reflecting the non-compliance of mandatory conditions as mentioned under Section 27 read with Section 13(3) of the M.P. Vishwavidhyala Adhiniyam, 1973. Respondent submitted that until and unless the deficiencies pointed out in the order are removed the granting of affiliation with 50% fees does not arise.

High Court was of the view that since petitioner had failed to remove the deficiencies as pointed by respondents the admission ought to be declined with the liberty to approach the University for grant of affiliation after the deficiencies are removed. [Dadaji Shashanik Avam Samajik Samiti v. State of M.P., 2019 SCC OnLine MP 717, dated 22-04-2019]

Case BriefsHigh CourtsUniversities and Educational Institutions

Punjab and Haryana High Court: Hearing an appeal which sought the quashing of the order passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh vide which the petitioner’s appeal was dismissed while upholding the order passed by the District Consumer Disputes Redressal Forum, Ludhiana, which denied his claim for refund of the initial deposit of Rs 10,000, the Court held that an admission brochure or the prospectus has a force of law which is to be strictly followed.

As the petitioner had chosen not to take admission after the first round of counselling, the amount was forfeited by the University as per Clause 9(iii) of the Regulation issued by the Punjab Technical University.The Commission concluded since the candidate having been admitted in the first round of counselling had not reported to the college therefore, the initial deposit stood forfeited as per the above said Regulation.

The Bench of G.S. Sandhawalia, J. observed that the respondents cannot be held liable for any deficiency in service and the petitioner was not entitled for refund in terms of the above clause of Prospectus. It has time and again been held by six Full Bench decisions of this Court that an admission brochure or prospectus has a force of law which is to be strictly followed. Even otherwise, the present writ petition would not be maintainable in view of alternative remedy available to the petitioner under the provisions of the Consumer Protection Act, 1986 where under Section 19, the appeal would lie to the National Consumer Disputes Redressal Commission. [Ankit Sharma v. Punjab Technical University, Jalandhar2016 SCC OnLine P&H 6474, decided on August 1, 2016]