IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 22ND DAY OF JUNE 2023/1ST ASHADHA, 1945
W.A.NO.27 OF 2023
AGAINST THE JUDGMENT DATED 17.11.2022 IN WP(C).NO.26918/2022 OF HIGH
COURT OF KERALA
APPELLANT/5TH RESPONDENT IN W.P.(C).NO.26918/2022:
PRIYA VARGHESE
AGED 43 YEARS
D/O.K.C VARGHESE, PRAXIS, KANJIROD, KOODALI PO,
KANNUR DISTRICT, PIN - 670592
BY ADV.SRI.RENJITH THAMPAN (SR.)(K/276/1990)
BY ADV.SRI.K.S.ARUN KUMAR
BY ADV.SMT.AMRUTHA P S
BY ADV.SRI.VIJAY SANKAR V.H.
BY ADV.SMT.SRUTHY UNNIKRISHNAN
BY ADV.SRI.SAQIB RIZWAN
BY ADV.SRI.JERIN JOSEPH
RESPONDENTS/WRIT PETITIONER & RESPONDENTS 1 TO 4, 6 & 7 IN W.P.
(C).NO.26918/2022:
1 DR. JOSEPH SKARIAH
AGED 52 YEARS, CHIRAKUZHY, THURUTHY P.O,
CHANGANASSETY, KOTTAYAM DISTRICT, PIN - 686535
2 CHANCELLOR OF UNIVERSITIES IN KERALA
KANNUR UNIVERSITY, KERALA RAJ BHAVAN,
KERALA GOVERNER'S CAMP PO,
THIRUVANANTHAPURAM, PIN - 695099
3 VICE CHANCELLOR (SELECTION COMMITTEE CHAIRMAN)
KANNUR UNIVERSITY, CIVIL STATION,
THAVAKKARA, KANNUR DISTRICT, PIN - 670002
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4 SECRETARY, HIGHER EDUCATION DEPARTMENT
4TH FLOOR, ANNEX 11, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
5 THE SELECTION COMMITTEE FOR ASSOCIATE
PROFESSOR, (MALAYALAM)
KANNUR UNIVERSITY, REP BY ITS CONVENOR,
KANNUR UNIVERSITY, CIVIL STATION, THAVAKKARA,
KANNUR DISTRICT, PIN - 670002
6 THE REGISTRAR, KANNUR UNIVERSITY
CIVIL STATION, THAVAKKARA, KANNUR DISTRICT,
PIN - 670002
7 THE CHAIRMAN, UNIVERSITY GRANTS COMMISSION (UGC),
BAHADUR SHAH ZAFAR MARG, NEW DELHI, PIN - 110000
BY ADV.SRI.GEORGE POONTHOTTAM (SR.)(K/000570/1979)
BY ADV.SRI.SANTHARAM.P
BY ADV.SRI.P.RAVINDRAN (SR.)
BY ADV.SRI.I.V.PRAMOD, SC
BY ADV.SRI.S.GOPAKUMARAN NAIR (SR.)
BY SRI.T.B.HOOD, SPL.G.P. TO A.G.
BY ADV.SRI.S.PRASANTH, ADDL.CGSC
BY SRI.S.KRISHNA MOORTHY, SC, UGC
BY SRI.THOMAS ABRAHAM, SC
BY ADV.SMT.REKHA ARAVIND(K/2130/1999)
BY ADV.SRI.P.G.GOKULNATH (K/000170/2017)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
15.06.2023, THE COURT ON 22.06.2023 DELIVERED THE FOLLOWING:
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'C.R.'
J U D G M E N T
A.K. Jayasankaran Nambiar, J.
The facts in Brief:
This appeal is preferred by the 5th respondent in W.P.(C).No.26918 of
2022 aggrieved by the judgment dated 17.11.2022 of the learned Single
Judge in the writ petition. The brief facts necessary for disposal of the
appeal are as follows:
The writ petitioner Dr.Joseph Skariah is an Assistant Professor in the
Department of Malayalam in St. Berchman's College, Changanassery. In the
writ petition, he impugned Ext.P4 notification of the Kannur University that
published the provisional rank list of candidates for selection to the post of
Associate Professor [open category] in the Department of Malayalam under
the University. In the said rank list, he was ranked second after the
appellant herein, the 5th respondent in the writ petition, who was ranked
first. It is significant that, in the writ petition, the Kannur University that
had issued the notification was not made a party and, instead, it was only
the Registrar of the University, who was the signatory to Ext.P2 notification
issued on behalf of the University, that was arrayed as the 6th respondent
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therein.
2. The case of the petitioner in the writ petition was that the
appellant herein was not qualified to hold the post of Associate Professor
that was notified for selection because;
a. She did not have the prescribed minimum experience of 8
years in teaching and/or research in an academic/research position
equivalent to that of Assistant Professor in a University, College or
Accredited Research Institution/Industry;
b. She was given disproportionate marks by the Selection
Committee towards research score, research guidance, teaching
experience and publications; and
c. She was given more marks than the petitioner in the
interview that and the same was in violation of all procedures and
with a view to favour her.
3. Counter affidavits were filed on behalf of the 5th
respondent/appellant, as also the Registrar of the University, refuting the
contentions in the writ petition. Reply affidavits were also filed by the writ
petitioner to the aforesaid counter affidavits. Thereafter, the matter was
heard by a learned Single Judge.
The impugned judgment:
4. The learned Single Judge considered only the issue of whether the
experience possessed by the appellant could be treated as teaching/research
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experience for the purposes of deciding her eligibility to aspire for the post
in question. The findings of the learned Single Judge in that regard are
contained in paragraph Nos.46 to 110 of the impugned judgment, and they
essentially hold that the experience gained by the appellant herein, while on
deputation under the Faculty Development Programme at Kannur University,
and as Director of Student Services at the Kannur University, cannot be
treated as teaching/research experience for the purposes of Regulation
4.1.II of the UGC Regulations, 2018. As regards the objection raised by the
appellant herein regarding the maintainability of the writ petition, inasmuch
as the University had not been impleaded as a party in the writ petition, the
learned Judge found that the objection had been raised only by the appellant
herein and not by the Registrar of the University or any of the other
respondents, and further that when the said Registrar who was on the party
array had filed pleadings before this Court without raising such an objection,
the absence of the University on the party array was not fatal to the cause of
the writ petitioner. It is the above findings of the learned Single Judge that
are impugned in this Writ Appeal.
5. We have heard Sri.Renjith Thampan, the learned senior counsel
duly instructed by Adv.Sri.K.S.Arun Kumar appearing on behalf of the
appellant, Sri.George Poonthottam, the learned senior counsel duly assisted
by Adv.Sri.Santharam P. appearing on behalf of the 1st respondent/writ
petitioner, Sri.P.Ravindran, the learned senior counsel duly assisted by
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Adv.I.V. Pramod appearing on behalf of the 6th respondent Registrar,
Sri.I.V.Pramod, the learned Standing Counsel appearing for the Vice
Chancellor and Selection Committee of the Kannur University, Sri. S.
Gopakumaran Nair, the learned senior counsel appearing for the Chancellor
of Universities in Kerala, Sri.T.B.Hood, the learned senior Government
Pleader appearing for the 4th respondent and Sri. S.Krishnamoorthy, the
learned counsel appearing on behalf of the 7th respondent University Grants
Commission [UGC].
The arguments in the appeal:
6. The submissions of Sri.Renjith Thampan, the learned senior
counsel appearing for the appellant, briefly stated, are as follows:
The writ petition was bad for non-joinder of necessary parties. It is
highlighted that the Kannur University that had issued Ext.P2
notification, as also caused the Selection Committee to convene for the
purposes of selection of the candidates pursuant to the said notification,
and thereafter published Ext.P4 rank list notifying the candidates
selected, was never made a party in the writ petition. That the Kannur
University was a necessary party in the writ petition would also flow from
the fact that the learned Single Judge, while disposing the writ petition,
issued directions to the Kannur University for compliance. It is clear,
therefore, that no decision as regards the legality of the actions of the
Kannur University, and no directions in that regard, could have been
taken/issued without the University being on the party array. Reliance is
placed on Chief Conservator of Forests, Govt. of A.P. v. Collector
and Others - (2003) 3 SCC 472, Jogendrasinhji Vijaysinghji v. State
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of Gujarat and Others - [(2015) 9 SCC 1], Poonam v. State of Uttar
Pradesh and Others - [(2016) 2 SCC 779], Vidur Impex and
Traders Private Limited and Others v. Tosh Apartments Private
Limited and Others – [(2012) 8 SCC 384], Kanaklata Das & Others
v. Naba Kumar Das & Others - [JT 2018 (1) SC 576] to contend that
the writ petition was bad for non-joinder of necessary parties.
The teaching/research experience of the appellant, relevant for the
purposes of her appointment as an Associate Professor, can be tabulated
as follows:
Sl.
No. Institution and post held Period of service Experience
1
Assistant Professor,
Sree Vivekananda College
Kunnamkulam.
14.3.2012
to
28.07.2015
3 years 4
months and
15 days
2
Deputation for Faculty
Development Programme at
Kannur University (with active
service and service lien at Sree
Vivekananda College
Kunnamkulam.)
29.07.2015
to
8.2.2018
2 years 6
months and 11
days
3
Assistant Professor,
Sree Kerala Varma College,
Thrissur.
09.02.2018
to
06.08.2019
1 year 5 months
and 29 days
4
Director of Students Services,
on Deputation to Kannur
University
07.08.2019
to
15.06.2021
1 year 10
months and
9 days
5
Assistant Professor,
Sree Kerala Varma College,
Thrissur.
16.06.2021 to
06.07.2021 21 days
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6
Assistant Director,
Kerala Bhasha Institute,
Thiruvananthapuram.
07.07.2021
to
21.10.2021
3 months 15
days
Apart from that the appellant also had the following teaching experience:
1
Lecturer in Malayalam on
Adhoc/Temporary/contract,
University Teacher Education
Centre, Kannur University.
27.06.2001 to
25.02.2002 8 months
2
Lecturer in Malayalam on Ad-hoc/
Temporary/ contract, University
Teacher Education Centre, Kannur
University.
05.06.2002 to
28.2.2003
8 months 24
days
As far as the periods of service as Assistant Professor in Sree
Vivekananda College, Kunnamkulam and Sree Kerala Varma College,
Thrissur are concerned, there is no dispute that the said services counted
towards teaching experience.
As regards the service rendered by the appellant while on deputation
under the Faculty Development Programme at Kannur University, the
appellant continued to have active service and service lien at Sree
Vivekananda College, Kunnamkulam during the period between
29.7.2015 and 8.2.2018 when she was sent on deputation for the Faculty
Development Programme. The Tenth Plan Guidelines for Faculty
Improvement Program (FIP) notified by the UGC, as also the Guidelines
for the Special Scheme of Faculty Development Programme (FDP) for
Colleges for the Twelfth Plan (2012-17) published by the UGC, indicate
that the Faculty Improvement and Faculty Development programmes
were introduced with the aim of enhancing the academic and intellectual
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environment in the Institutions by providing faculty members with
enough opportunity to pursue research and also to participate in
seminars/conferences/workshops so that participation in such
programmes would enable faculty members to update their research and
pedagogic skills. The Programme envisaged eligibility requirements for
being enrolled under the Program and only 20% of the permanent
teachers were eligible to avail teacher fellowship from an Institution at
any point in time. It is pointed out that there is a detailed procedure
prescribed for availing the benefit of the Faculty Development
Programme and the Programme also provides for the appointment of
substitute teachers in accordance with the procedure prescribed by the
UGC in place of the teachers that are chosen to pursue the Faculty
Development Programme with a strict condition that in the event of the
person selected for the Programme not completing the Programme
within the time envisaged for the same, he/she would be liable to refund
the entire costs incurred by the UGC for payment of salary and other
allowances to the substitute teacher. Reliance is placed on Exts.R5 (j)
and R5 (k) Government Orders to demonstrate that the appellant had
been accorded sanction by the Government for undergoing the Ph.D.
course for the period from 29.7.2015 to 8.2.2018 under the Faculty
Development Programme of the UGC, on her executing a bond to comply
with the conditions aforementioned. It was clear, therefore, that the
deputation under the Faculty Development Programme was in the nature
of a sanctioned Research Programme, that was undertaken with the
permission of the employer institution, so as to augment the pedagogic
skills of the appellant, which could then be utilised by the
Institution/University. That being the case, the period spent on
deputation for the Faculty Development Programme had to be treated as
research experience that was simultaneous with teaching experience for
the purposes of Regulation 3.11 of the UGC Regulations, 2018.
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The State Government has recognised the period spent on sponsored
study as duty, as evidenced by Ext.R5 (e) and Ext.R5 (f) Government
Orders which sanctioned the deputation of various persons for
undergoing Ph.D. course under the Faculty Improvement Programme,
and hence, a different stand cannot be taken in the case of the appellant
without attracting the vice of discrimination under Article 14 read with
Article 16 of the Constitution of India. Reliance is placed on the
decisions in Saheeda P. v. State of Kerala and Others - [2018 SCC
Online Ker 10110]; Dr. Nirmala Mittal v. State of Haryana and
others - [2007 SCC Online P&H 1502]; State of Haryana v. Smt.
Nirmala Mittal - [2008 SCC Online P&H 1933]; Varghese v. State
of Kerala - [1989 KHC 419] that dealt with the purport of Faculty
Development Programmes, to highlight that these programmes have
been treated as valid research programmes that provide research
experience.
As regards the experience gained by the appellant while on deputation as
Director of Student Services, and Programme Coordinator of the NSS, in
the Kannur University, it is pointed out that the learned Single Judge
decided the issue based solely on the averments of the appellant in her
counter affidavit in the writ petition that the Director of Students
Services activities were not really teaching activities in the strict sense.
Reference is made to the extract of the Kothari Commission report that
was re-produced in a judgment of this Court in W.P.(C).No.15447 of 2007
[Ext.R5 (v)], as also the extracts from the All India Survey on Higher
Education (2010-11) published by the Ministry of Human Resource
Development, Department of Higher Education, Government of India
[Ext.R5 (w)] and the Draft National Curriculum Framework and
Guidelines for Fostering Social Responsibility and Community
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Engagement in Higher Educational Institutions in India, prepared by the
UGC [Ext.R5 (z)] to point out that the UGC felt that new approaches to
learning, based on dialogical, co-learning, participatory and problemoriented methods were required for teaching existing curriculum.
Reference is also made to the National Educational Policy of 1992,
produced as Annexure-A along with I.A. No.1 of 2023 in the Writ Appeal,
to demonstrate that recognition of outstanding contribution of teachers
to the National Service Scheme had to be seen as an extension work
under the third dimension of the University system as equivalent to
research work for the purposes of incentivizing teachers, and to
encourage their interest and participation in the National Service
Scheme. Inasmuch as the appellant was appointed as a Programme
Coordinator, she had important responsibilities for guiding students
under the National Service Scheme and considering the importance
granted to the Scheme under the National Policy of Education, the
experience gained by the appellant while on deputation as a Director of
Students Services had to be seen as teaching/research experience.
Reliance is placed by the learned counsel on the decisions reported in P.
S. Ramamohana Rao v. A. P. Agricultural University and Another -
[1997 KHC 1099] and University of Kerala and Others v. Dr. K.K.
Venu and Others - [2014 (3) KHC 149].
It is settled law that this Court will not ordinarily interfere with the
decisions of academic bodies. In the instant case, the University had
clearly relied on the statutory provisions based on which Ext.P2
notification had been issued and found the appellant to be satisfying the
conditions of eligibility for the post of Associate Professor in Malayalam.
The issue as to whether or not a particular experience qualified as
teaching/research experience for the purposes of the statutory provisions
or the UGC Regulations, 2018 was for the University to decide based on
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its understanding of the prevailing concept of pedagogy recognised and
regulated by the UGC.
7. The arguments of Sri. George Poonthottam, the learned senior
counsel appearing on behalf of the 1st respondent writ petitioner, briefly
stated are as follows:
The writ petition was not bad for non-joinder of parties as the Registrar
of the University was made a party and Section 14 of the Kannur
University Act, 1996 clearly states that Suits by or against the University
shall be instituted by or against the Registrar.
The experience gained by the appellant while on deputation under the
Faculty Development Programme or, as Director of Student Services,
could not be treated as teaching experience for the simple reason that
she, admittedly, did not engage in the activity of teaching students during
the said tenure. It is not in dispute that the appellant had availed leave to
pursue her Ph.D. under the Faculty Development Programme, and that
being the case, she did not qualify for the benefit given under Regulation
3.11 of the UGC Regulations, 2018, to teaching faculty who could pursue
their Ph.D. programmes without availing leave. Further, the appellant did
not engage in any classroom teaching activity while she was on
deputation as a Director of Student Services/ Programme Coordinator of
the NSS and hence her experience while on the said deputation could not
count towards teaching experience for the purposes of the selection
notification.
The experience gained by the appellant while working as Lecturer at the
Teacher Education Centre at Kannur University on ad hoc/contract basis
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cannot be reckoned towards teaching experience because the said
service was rendered many years ago and was not on regular basis. That
apart, the said service was as Lecturer and not as Assistant Professor.
The 8 years of teaching experience stipulated for the post of Associate
Professor is one that has to be gained after acquiring the basic
qualification of Ph.D. prescribed for the post. The appellant obtained her
Ph.D. qualification only in 2019 and hence she could not have had 8 years
of teaching experience as a Ph.D. holder at the time of applying for the
post of Associate Professor under Ext.P2 notification. Reliance is placed
on the Full Bench judgment of this Court in Basheer A. (Dr.) v. Dr.
Saiful Islam A. and Others - [2014 (4) KHC 379] in support of the
said contention.
8. The submissions of Sri. P. Ravindran, the learned senior counsel
appearing on behalf of the Registrar of the University, Sri. T.B Hood, the
learned Government Pleader, and Sri. Krishnamoorthy, the learned Standing
Counsel for the UGC were based on the counter affidavits filed by the
respective parties in the writ petition.
The issues that arise for our consideration:
9. On a consideration of the facts and circumstances of the case, as
borne out by the pleadings on record, and the arguments of learned counsel
on either side, we are of the view that the following issues arise for our
consideration viz.
1. Was the writ petition bad for non-joinder of parties?
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2. Can the research period undergone by the appellant under the Faculty
Development Programme of the Kannur University count towards the
research experience of the appellant for the purposes of Ext.P2
notification read with the UGC Regulations of 2018?
3. Can the period spent by the appellant while on deputation as Director of
Student Services of the Kannur University be counted towards the
teaching experience required for appointment as an Associate Professor
pursuant to Ext.P2 notification?
4. Can the period spent by the appellant as Lecturer at the Teacher
Education Centre at Kannur University on ad hoc/contract basis be
counted towards the teaching experience as Assistant Professor required
for appointment as an Associate Professor pursuant to Ext.P2
notification?
5. Does the teaching experience of 8 years as Assistant Professor stipulated
for the post of Associate Professor in Ext.P2 notification have to be
gained after the candidate in question acquires the Ph.D. qualification?
Discussion and Findings;
Issue (1)
10. We deem it apposite to first deal with the objection raised by the
appellant as regards non-joinder of necessary parties in the writ petition. In
any adversarial litigation, the rule regarding joinder of parties is designed to
ensure that the lis is not adjudicated in the absence of a party whose
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presence before the court is essential for a complete resolution of the
dispute. The law in this regard is well settled and it would suffice to refer to
just the decision in Mumbai International Airport (P) Ltd1
, where the
Supreme Court, referring to Order 1 Rule 10 (2) of the Code of Civil
Procedure [CPC], observed that the general rule in regard to impleadment of
parties is that the plaintiff in a suit, being domnus litis, may choose the
persons against whom he wishes to litigate and cannot be compelled to sue a
person against whom he does not seek any relief. But the said general rule is
subject to the provisions of Order 1 Rule 10(2) of the CPC that makes it clear
that a court may, at any stage of the proceedings, either upon or even
without an application, and on such terms as may appear to it to be just,
direct that any of the following persons may be added as a party; (a) any
person who ought to have been joined as a plaintiff or defendant, but not
added; or (b) any person whose presence before the court may be necessary
in order to enable the court to effectively and completely adjudicate upon
and settle the questions involved in the suit. In short, the court is given the
discretion to add as a party, any person who is found to be a necessary party
or proper party.
11. The court went on to state that a necessary party is a person who
ought to have been joined as a party and in whose absence no effective
decree could be passed at all by the court. If a necessary party is not
1 Mumbai International Airport (P) Ltd v. Regency Convention Centre and Hotels (P) Ltd – (2010) 7 SCC 417
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impleaded, the suit itself is liable to be dismissed. A proper party is a party
who, though not a necessary party, is a person whose presence would enable
the court to completely, effectively and adequately adjudicate upon all
matters in dispute in the suit, though he need not be a person in favour of or
against whom the decree is to be made.
12. In the instant case, the main prayer in the writ petition was to
quash the notification issued by the Kannur University and yet the
University itself was not made a party in the writ petition. No doubt, the
Registrar of the University was impleaded as the 6th respondent in the writ
petition, presumably because Section 14 of the Kannur University Act
prescribes that suits against the University be instituted in the name of the
Registrar. That however could not have been a reason to ignore the
provisions of Section 3 of the same Act that declares the University to be an
independent body with perpetual succession and a common seal that can
sue and be sued in its own name. The statutory provisions leave us with no
manner of doubt that what is envisaged therein is that any suit or like
proceedings initiated against the University be done in the name of the
University, represented by its Registrar. As discernible from the observations
of the Supreme Court in Chief Conservator of Forests, Govt. of A.P2
, the
statutory prescription that the University must be sued in its own name is
not a mere procedural formality but essentially a matter of substance and
2 Chief Conservator of Forests, Govt. of A.P. v. Collector and Others – (2003) 3 SCC 472
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considerable significance. This is all the more so in a matter such as the
present where the prayer in the writ petition was to quash a selection
proceedings and the rank list drawn up by the University pursuant thereto.
In a challenge against the decision of the University in an academic matter,
the lis could not have been effectively adjudicated without ascertaining the
University’s justification for its decision. It is trite that in academic matters,
the decisions of the University or other Educational body has to be given due
weightage.
13. We certainly cannot agree with the finding of the learned Single
Judge that merely because the Registrar of the University or any of the other
respondents did not raise such an objection, it was not an objection that was
worthy of consideration on merits. We cannot also accept the submission of
the learned senior counsel appearing for the writ petitioner that the strict
rules of pleadings and impleadment of parties applies only to proceedings
before the civil courts and not to constitutional courts. In view of the settled
law on the subject, and the specific provisions of Order 1 Rule 10 of the
CPC, the principles of which are not alien to the writ jurisdiction, we find
that the writ petition was indeed bad for non-joinder of necessary parties.
14. We might hasten to add at this juncture that while our finding on
this issue would have sufficed to allow this writ appeal by dismissing the
writ petition, insofar as the learned Single Judge in the impugned judgment
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has entered findings therein against the appellant that touch upon her
academic qualifications and experience, we feel it necessary to deal with the
other issues raised in this appeal as well.
Issue (2)
15. In the impugned judgment, the learned Single Judge finds that
the appellant could not have reckoned the period spent undergoing the
Faculty Development Programme of the Kannur University towards the
research experience of the appellant for the purposes of appointment as an
Associate Professor pursuant to Ext.P2 notification read with the UGC
Regulations of 2018. He also finds that the period spent by the appellant
while on deputation as Director of Student Services of the Kannur University
cannot be counted towards the teaching experience required for the same
appointment.
16. To examine the legality of the said findings, we deem it apposite
to first examine the extent to which research and community outreach
programmes are recognised as integral aspects of pedagogy under the
Indian model of Higher Education that is regulated by the UGC.
17. Mark Van Doren famously remarked, “The art of teaching is the
art of assisting discovery”. His words resonate with the ideals informing the
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Humboldtian model of Higher education that emphasizes the close
integration of teaching and research. Under the said model, Professors are
not only responsible for imparting knowledge to students but also engage in
original research contributing to the advancement of knowledge. While the
model advocates academic freedom, allowing scholars and students to
pursue their interests and research without undue external influence or
interference, it also emphasizes a well-rounded education, encouraging
students to explore a wide range of subjects beyond their specific field of
study so as to develop critical thinking skills, foster intellectual curiosity and
promote inter-disciplinary understanding. The system values the cultivation
of moral and ethical values, promoting the idea of education as a means of
personal and societal transformation and encourages students to engage
with societal issues and contribute to the betterment of society. The
Humboldtian model has had a significant impact on higher education
systems globally, shaping the principles of academic institutions worldwide,
including in our country. Although, some countries have embraced a neoliberal model of higher education in recent years, characterized by a shift
towards marketization, increased competition and the application of
business-like practices within universities that urged universities to
concentrate their efforts on the diffusion and extension of knowledge rather
than its advancement, and leaving it to the specialist research institutes to
pursue research and discovery, some aspects of the former model appear to
have found favour with the UGC in our country for the standards laid down
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by them closely relate and approximate to the Humboldtian model. The
legitimacy of the university academic in the Humboldtian tradition stems
from the fact that they are actively conducting research at the same time as
working as a teacher. In fact there are many who feel that no matter how
skillful a teacher might be, without some form of research engagement they
will fall short in a higher education context.3
18. The UGC Regulations, 2018, that have been adopted by the State
Government and therefore apply to the Kannur University contain many
provisions that indicate the extent to which research work is encouraged
among the teaching community. While the Code of Professional Ethics
prescribed for them under Regulation 17.0.I mandates, inter alia, that a
teacher should seek to make professional growth continuous through study
and research, Regulations 8 and 9 that deal with Study Leave and Research
Promotion Grant respectively also point in that direction. A mere perusal of
the provisions of Regulation 8.2 that deals with Study leave shows that it is a
leave sanctioned solely for the purpose of enabling a teacher to undertake
research projects or pursue doctoral research while he/she continues as a
teacher of the University/College/Institution. While the teacher concerned
undergoes a process of selection for the sanction of the leave, and is obliged
to comply with onerous conditions in connection therewith, he/she gets the
benefit of counting the leave period towards service as a teacher,
3 Bruce Macfarlane (2021): ‘The Spirit of Research’, Oxford Review of Education
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notwithstanding that the University may appoint a substitute teacher in
his/her place during the leave period. On completion of the leave period, the
teacher is obliged to join the University/College/Institution concerned and
undertake to serve there for a continuous period of three years from the
date of resuming duty on the expiry of the leave period.
19. The provisions therefore clearly reveal a scheme of promotion of
research among faculty members that the University/College/Institution then
seeks to take advantage of by demanding the continued service of the
teacher concerned. The Faculty Improvement Scheme, and the Faculty
Development Scheme that replaced it, both notified by the UGC, contain the
procedure to be followed for selecting upto 20% of the regular faculty of an
institution for the conferment of research opportunities under the scheme.
The said schemes and Regulations therefore effectively complement each
other.
20. It is against the backdrop of the above scheme that is ingrained in
the Regulations that one has to interpret the provision in Regulation 3.11 on
which considerable arguments have been advanced before us. The said
Regulation reads as under;
“3.11.- The time taken by candidates to acquire M.Phil. and/or Ph.D. Degree shall not be
considered as teaching/research experience to be claimed for appointment to the teaching
positions. Further the period of active service spent on pursuing Research Degree
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simultaneously with teaching assignment without taking any kind of leave, shall be counted
as teaching experience for the purpose of direct recruitment/promotion. Regular faculty
members upto twenty percent of the total faculty strength (excluding faculty on
medical/maternity leave) shall be allowed by their respective institutions to take study leave
for pursuing Ph.D. degree. (emphasis supplied)”
21. What is clearly discernible from a reading of the said provision is
that a distinction is made between ‘candidates’ who are mentioned in the
first limb of the provision and ‘faculty members’ who are referred to in the
next two limbs of the provision – by implication in the second limb, and
expressly in the third limb.
22. The prohibition against inclusion of the time taken for acquiring a
Ph.D. degree in the computation of teaching/research experience is one that
applies to ‘candidates’ by which term is intended a person who is not
working as a teacher in any institution at the time of applying for the
teaching post in question. ‘Faculty members’, on the other hand, refers to
persons who are already working as teachers in an institution at the time of
applying for the teaching post in question, and for them, the period spent on
pursuing a research degree simultaneously with teaching assignment and
without taking any kind of leave, will count towards teaching experience. In
other words, merely on account of their having pursued a research degree
simultaneous with their teaching assignment, their research period will not
be excluded. Similarly, even those regular faculty members, upto 20% of the
total faculty strength, who have availed study leave to pursue the Ph.D.
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programme under the Faculty Development Programme, will get the benefit
of including the period spent on pursuing a research degree in the
teaching/research experience stipulated for the teaching post that is notified
for appointment.
23. We are therefore of the view that the period spent by the
appellant on pursuing her Ph.D. degree under the Faculty Development
Programme cannot be excluded while reckoning her teaching/research
experience in the post of Assistant Professor for appointment as an
Associate Professor pursuant to Ext.P2 notification.
Issue (3)
24. As regards the period spent by the appellant while on deputation
to the Kannur University as Director of Students Services/Project
Coordinator of the National Service Scheme (NSS), we find that the learned
Single Judge has essentially relied on the averments in the counter affidavit
filed by the appellant in the writ petition, where she had averred that her job
did not involve any teaching in the strict sense, to hold that the period spent
on the said deputation cannot count towards teaching experience. In our
view, the answer to the question as to whether or not the experience gained
by a teacher, while on deputation to a non-teaching post, qualifies as
teaching experience must depend upon the nature of activities undertaken
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by the teacher in the post to which she is deputed and not merely by the
classification – as teaching or non-teaching – accorded to the post. It cannot
also be determined solely on the basis of the averments in her affidavit
where she has merely stated that there was no teaching ‘in the strict sense’.
25. The scope of the phrase ‘teaching experience’ can be determined
only through an understanding of the true nature and scope of the word
‘teaching’ or ‘pedagogy’ itself. Changing conceptions of learning bring along
corresponding changes in the conception of teaching. We have already
alluded to the transformation in the models of higher education noticed
globally, from the Humboldtian model to the Neo-liberal model to an eclectic
mix of both in more recent times. The model of higher education pursued in
our country can be gleaned from a perusal of the UGC Regulations as well as
the National Education Policy in vogue. In Ext.R5 (z) document, which is an
extract from the National Curriculum Framework & Guidelines published by
the UGC in February 2019, there is a chapter on ‘Fostering Social
Responsibility & Community Engagement in Higher Education Institutions
(HEI) in India’ where it is clearly stated that the document emerged from
UGC’s long standing commitment to strengthen social responsibility and
community engagement of Higher Education Institutions in India. It goes on
to clarify that to achieve the objectives of socio-economic development of
New India, HEI’s can play an important role through active community
engagement that will contribute to improvements in quality of both teaching
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and research in HEI’s in India. It calls for the development of institutional
mechanisms to adopt a holistic and functional approach to community
engagement, encompassing all the three functions of HEI’s – teaching,
research and service. It recommends that performance assessments of
teachers, researchers and administrators in HEI’s should include review of
their involvement and contributions to community engagement in teaching
and research; that criteria of weightage to community engagement by
teachers and researchers should be explicitly included in assessments for
recruitment, regularisation and promotion. While exploring the option of
adapting existing courses for community engagement, it is stated as follows:
“The purpose of teaching is to enable learning of students. However, the reality of the
present system of teaching in most HEI’s is that students feel disempowered when taught
only in the classroom style delivery of content. Despite advancement in teaching aids,
infrastructure, updated curricula and pedagogies, students are unable to relate what they
study in the classroom to the field realities in which they live and where they would work
in future. Therefore, it is important that the classroom theory is linked to the realities of
the local field areas. Thus, existing courses can be adapted, both in content and pedagogy,
for community engagement to facilitate learning from the field. For instance, management
curriculum may include aspects of micro-financing in rural context; chemistry syllabus
can have a component of conducting water and soil analysis in surrounding field areas;
political science syllabus could include mapping of local rural governance institutions and
their functioning…[Engaged] teaching entails interaction of students with the curriculum
and the world around the university. An engaged, outward, trans-disciplinary stance will
enable enriching the curriculum and promoting learning in multi-modal pedagogies in
addition to classroom and laboratories.”
26. Similarly, as early as in the National Education Policy of 1992
(produced as Annexure B along with I.ANo.1/2023) it was envisaged that
special incentives be evolved to encourage teachers’ interest and
participation, quite apart from incentives to encourage and sustain
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participation of students and youth in programmes under the National
Service Scheme (NSS). It was also sensing the need for a responsible person
such as a teacher to occupy the post of Programme Coordinator of NSS that
the recruitment rule for the post prescribes that an aspirant to the post has
to have teaching experience. Thus, merely because the post of Director of
Student Services/Programme Coordinator of NSS is classified as a nonteaching post in the recruitment rules of the University, it does not follow
that the incumbent in the post does not gain ‘teaching experience’ in the
broader sense of the term.
27. We cannot also ignore the submission of Sri. T. B. Hood, the
learned Government Pleader appearing on behalf of the State that a finding
that the experience of a teacher in the post of Director of Student
Services/Programme Coordinator of NSS is not teaching experience, would
have disastrous consequences for the academic community in the State as
no teacher would be willing to go on deputation to such posts for fear of
losing out on career progression. We have to also remind ourselves, yet
again, that when the University, which is an academic body, has chosen to
treat the said experience of the teacher as ‘teaching experience’, then this
court must defer to the wisdom of the academic body and refrain from
interfering with the said decision unless it is shown to be clearly opposed to
the statutory provisions in vogue. No material was produced by the writ
petitioner to demonstrate an illegality in the decision of the University on
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this aspect. We are therefore of the view that the period spent by the
appellant on deputation as Director of Student Services/Programme
Coordinator of NSS was rightly reckoned as teaching experience by the
University while determining her eligibility to apply for the post of Associate
Professor notified in Ext.P2 notification.
Issue (4)
28. The teaching experience cited by the appellant in her application
for consideration to the post of Associate Professor, includes therein two
spells of service as Lecturer at the Teacher Education Centre, Kannur
University, on ad hoc/contract basis. The learned Single Judge found that the
said spells of service cannot be reckoned towards valid teaching experience
since they were rendered many years prior to the application
aforementioned and, further, the said service was rendered as a ‘Lecturer’
and not as an ‘Assistant Professor’. On a perusal of Ext.P2 notification, as
well as the UGC Regulations, 2018, we do not find any prescription therein
that suggests that the qualifying experience must be one that is attained
proximate in point of time with the date of preferring an application seeking
consideration for appointment to the post of Associate Professor. In its
absence, it was not for this Court to introduce a requirement in the
notification or the Regulations, which the academic policy makers did not
deem necessary. That apart, the nomenclature of ‘Assistant Professor’ was
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one that was introduced in later UGC Regulations to denote the entry level
teaching post in a University, which was earlier known as ‘Lecturer’. Thus,
the post of Lecturer was merely re-designated as Assistant Professor and
there was no qualitative change in the nature of duties attached to the post.
29. That said, we do find merit in the submission of the learned senior
counsel for the writ petitioner that consequent to the re-designation as
Assistant Professor, the qualification requirements for the post also changed
and were made similar to those that were required of the erstwhile Senior
Lecturers. In the case of the appellant, therefore, we have to see whether
she was possessed of the necessary qualifications stipulated for an Assistant
Professor under the UGC Regulations, 2018 at the time when she rendered
her service as Lecturer at the Teacher Education Centre, Kannur University,
on ad hoc/contract basis. We gather from the submissions of Sri. Renjith
Thampan, the learned senior counsel appearing on behalf of the appellant
that she had obtained her NET qualification by January 2002, and thereby
stood possessed of all the qualifications prescribed for an Assistant
Professor under the UGC Regulations, 2018. If that be so, then it follows
that, while she cannot count her first spell of 8 months that was rendered
prior to her attaining the NET qualification, the second spell of 8 months
and 24 days from 05.06.2002 to 28.02.2003 would qualify as valid teaching
service subject to her demonstrating that she qualifies for counting her
previous ad hoc or contractual service as past service for the post of
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Associate Professor, in terms of Regulation 10 (f) of the UGC Regulations,
2018.
Issue (5)
30. A contention that was raised by Sri. George Poonthottam, the
learned senior counsel appearing for the writ petitioner was that the
appellant herein did not satisfy the requirement of having 8 years teaching
experience after the date of acquisition of her Ph.D. degree. He points out
that the basic qualification prescribed for the post of Associate Professor in
Ext.P2 notification as well as in the UGC Regulations, 2018 is a Ph.D degree
and hence the further requirement under the Notification/Regulations that
an aspiring candidate for the post must possess 8 years teaching experience
as an Assistant Professor would mean that the candidate concerned had to
be possessed of the stipulated teaching experience as Assistant Professor
after acquiring the Ph.D. qualification. He relies on the provisions of Rule 10
of the KS&SSR that have been made applicable to the University under the
Kannur University Act and First Statutes, as also the judgment of a Full
Bench of this Court in Basheer A. (Dr.) v. Dr. Saiful Islam A. and Others
- [2014 (4) KHC 379] in support of the said contention.
31. At the outset, we might observe that the above contention of the
learned senior counsel was in fact considered by the learned Single Judge
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but did not find favour with him. In the impugned judgment, the learned
Judge brushes aside the said contention by holding the Full Bench decision
as not applicable to the facts in the instant case and apparently agreeing
with the submission made on behalf of the appellant herein that Rule 10 of
the KS&SSR would apply only to cases where the statutory rules were silent
on whether the experience prescribed should be before or after the date of
acquisition of the basic qualification for the post. The appellant had
contended that in the instant case, the statutory provision was clear in that
the teaching experience of 8 years had to be in a candidate’s capacity as
Assistant Professor, which post did not mandate the possessing of a Ph.D.
degree as requirement for continuing in the post.
32. At any rate, the writ petitioner is not in appeal before us against
the judgment impugned in this appeal and hence we do not see the need to
interfere with the finding of the learned Single Judge on the said issue.
33. We thus allow this Writ Appeal by setting aside the impugned
judgment of the learned Single Judge, dismissing the writ petition and
finding in favour of the appellant on all the issues enumerated in paragraph
no.9 above, save in respect of the first spell of ad hoc/contractual service
rendered by her at the Teacher Training Centre, Kannur University and
covered by the discussion in relation to Issue (4). We declare that the
appellant Mrs. Priya Varghese is entitled to:
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(i) Reckon the period spent by her on research under the Faculty
Development Programme of the Kannur University towards the
research experience stipulated under Ext.P2 notification read with the
UGC Regulations of 2018;
(ii) Reckon the period spent by her on deputation as Director of Student
Services/Programme Coordinator of NSS of the Kannur University,
towards the teaching experience required for appointment as an
Associate Professor pursuant to Ext.P2 notification;
(iii) Reckon the second spell of 8 months and 24 days from 05.06.2002 to
28.02.2003, spent by her as Lecturer at the Teacher Education Centre
at Kannur University on ad hoc/contract basis towards the teaching
experience as Assistant Professor required for appointment as an
Associate Professor pursuant to Ext. P2 notification;
and that her candidature for the post of Associate Professor as notified in
Ext.P2 notification shall be considered accordingly.
Post Script
34. Before parting with this case, we deem it apposite to make a few
observations taking note of the media attention that this case received while
it was being adjudicated before the learned Single Judge. It is trite that
courts have necessarily to be cautious while interfering with the decisions of
academic bodies for we are often dragged into unfamiliar territories while
examining the legality of impugned decisions. We often encounter difficulties
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while trying to appreciate the true scope and ambit of provisions couched in
academic jargon, as there are invariably different context-based
perspectives that can be adopted in a given case. On such occasions,
prudence dictates that during the adjudication process, we give due
weightage to the views of the expert academic bodies and interfere with
their decisions only when there is a clear violation of the statutory
provisions or when their decision is vitiated on any of the grounds that
justify the exercise of the power of judicial review. That said, frighteningly
frequent are those occasions when the impugned decision in academic
matters attracts media attention for some reason or the other, and the court
has then to deal with the added distraction brought about through incessant
newspaper/channel discussions and overwhelming social media posts. It is
for this reason that courts have time and again exhorted the print and
electronic media to exercise restraint by deferring discussions on matters
pending before the court so that the rule of law can be better served by
avoiding an obstruction of the course of justice.
35. On its part, the media cannot be unmindful of the harm that is
caused to a litigant’s dignity and reputation through unjustified comments
and remarks, often based on the oral remarks made by a judge during the
adjudication proceedings, notwithstanding that the litigant ultimately
succeeds in those proceedings. They must note that no less a constitutional
functionary than the Chief Justice of India, had recently observed that not
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everything that is said by a judge during the course of interaction with
counsel in court can be taken as revealing the judge’s views on the merits of
the cause that is being adjudicated. While the right to a fair trial has long
been recognised as forming part of the fundamental right of a citizen under
Article 21 of the Constitution, in recent times, the right to privacy has also
been recognised as forming part of the said right through the judgment of
the Supreme Court in K.S.Puttaswamy & Anr v. Union of India & Ors. –
[(2017) 10 SCC 1]. Even prior to the said judgment, the right to protect
one’s reputation was recognised as forming part of the fundamental right
under Article 21 of the Constitution in Board of Trustees of the Port of
Bombay v. Dilipkumar Raghavendranath Nadkarni – [(1983) 1 SCC
124]. The International Convention on Civil and Political Rights, 1965 also
recognises the right to have opinions and the right of freedom of expression
subject to the right of reputation of others. The right has also been
recognised in State of Bihar v. Lal Krishna Advani – [(2003) 8 SCC
361].
36. Granville Austin in his treatise on our Constitution titled “The
Indian Constitution – The Cornerstone of a Nation”, states that while under
our Constitution, the guarantee of fundamental rights is mostly seen as
offering individuals and minority groups protection against arbitrary and
prejudicial state action, there are provisions under the Constitution, such as
Article 17, which abolishes untouchability, Article 15(2), which lays down
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that no citizen shall suffer any disability in the use of shops, restaurants,
wells, roads and other public places on account of his religion, race, caste,
sex or place of birth and Article 23, which prohibits forced labour, that are
designed to protect an individual against the actions of other private
citizens. On account of its nature as a right that is personal to an individual,
we are of the view that the newly recognised fundamental right to privacy,
which takes within its fold the right to protection of one’s reputation as well,
would merit classification as a fundamental right that protects an individual,
not only against arbitrary State action, but also against the actions of other
private citizens, such as the press or media. We trust, therefore, that the
media will take note of these observations and adopt a code of responsible
journalistic conduct that will inform news reporting in the days to come.
The Writ Appeal is allowed as above.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
MOHAMMED NIAS C.P.
JUDGE
prp/
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APPENDIX OF W.A.NO.27/2023
PETITIONER'S EXHIBITS:
Annexure-A A TRUE COPY OF THE RELEVANT PORTION OF
PROGRAMME OF ACTION, 1992 OF NATIONAL
POLICY ON EDUCATION
Annexure-B A TRUE COPY OF THE RELEVANT PAGES OF
NATIONAL SERVICE SCHEME MANUAL SHOWING
PARAGRAPH 17 OF CHAPTER 1 OF PART-I
Annexure-C A TRUE COPY OF THE RELEVANT PAGES OF
NATIONAL SERVICE SCHEME MANUAL SHOWING
CHAPTER 3 OF PART-IV
Annexure-D A TRUE COPY OF THE RELEVANT PAGES OF GO(P)
NO.58/2010/H.EDN DATED 27/03/2010
Annexure-E A TRUE COPY OF THE RELEVANT PAGES OF UGC
REGULATIONS ON MINIMUM QUALIFICATIONS FOR
APPOINTMENT OF TEACHERS AND OTHER ACADEMIC
STAFF IN UNIVERSITIES AND COLLEGES AND
MEASURES FOR THE MAINTENANCE OF STANDARDS
IN HIGHER EDUCATION, 2010 DATED 30/06/2010
RESPONDENTS EXHIBITS: NIL.
//TRUE COPY//
P.S. TO JUDGE
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