w w w . L a w y e r S e r v i c e s . i n



Dr. P.D, Divya, Assistant Professor (On Contract), Department of Veterinary Biochemistry, College of Veterinary & Animal Sciences, Mannuthy & Others v/s The State of Kerala, Represented by Its Special Secretary To Government, Law (Legislation (I) Department, Secretariat, Thiruvananthapuram & Others

    W.P(C). Nos. 15112 & Along With 19275, 15580, 19274 & 19908 of 2014 & 14174, 9353, 7655, 6673, 565, 19030 & 17876 of 2015

    Decided On, 12 December 2018

    At, High Court of Kerala

    By, THE HONOURABLE MRS. JUSTICE P.V. ASHA

    For the Appearing Parties: Sunil Kuriakose, Government Pleader, Millu Dandapani, Aysha Youseff, SC, Mary Beena Joseph, Sr. Government Pleader, P. Riji, P.V. Jayachandran, Elvin Peter, P. Rahul, V. Rajendran, P.C. Sasidharan, E.B. Shivanandan, Nidhi Balachandran, S. Ramesh, Pooja Surendran, T. Naveen, Isaac Kuruvilla Illikal, K.N. Abhilash, K.S. Nizar, K.R. Ganesh, Paul V. Kollinal, S. Sudheeshkar, Sunil Nair Palakkat, Saju John, V. Varghese, K.P. Rajeevan, M.C. Gopi, Advocates, V.P. Seemandini, Sr. Advocate.



Judgment Text

1. All these writ petitions relate to selection and appointment to the post of Assistant Professors in various disciplines in various institutions under the Kerala Veterinary and Animal Sciences University (`University' for short). The petitioners in all these Writ Petitions submitted applications pursuant to the notification issued on 12.06.2014. Therefore, all these cases were heard together and are disposed of by this common judgment.

2. The claims raised by the petitioners in WP(C) Nos. 19274 of 2014, 19275 of 2014, 30862 of 2014 and 565 of 2015 are more or less similar. Petitioners in all these cases have submitted applications pursuant to notification issued on 12.06.2014, for appointment as Assistant Professors in various disciplines. The age limit notified for submitting applications was “should not have attained the age of 40 years as on the last date for submission of application that is 31.7.2014. For candidates from SC/ST Category, there would be a relaxation of 5 years in the upper age limit.” The petitioners had crossed the age of 40 years. They belong to Other Backward Class (OBC) and therefore they claim that they are entitled to get age relaxation under Rule 10(c) of the Kerala State and Subordinate Service Rules (KS&SSR). They also claim regularisation claiming the benefit of Note to Statute 149 of the University First Statutes, 2014. The petitioners in each of these Writ Petitions are seeking appointment in different disciplines. Brief facts in each of the writ petitions are the following.

WP(C).No.19274 of 2014

3. Petitioner was working as a Veterinary Surgeon in the Department of Animal Husbandry under the Government of Kerala with effect from 17.02.2006 to 04.09.2009. After availing study leave and acquiring Ph.D he rejoined duty in June 2011 and worked there upto 17.02.2012. From 18.02.2012 to 30.09.2013 he worked as Academic Consultant in the Department of Surgery and Radiology in the College of Veterinary and Animal Sciences, Pookode. While so, he was appointed as Assistant Professor with effect from 01.10.2013 on deputation. While he was continuing there the University issued notification inviting applications from eligible candidates to be appointed to the post of Assistant Professors on permanent basis. Though the notification did not provide for age relaxation to candidates belonging to OBC, the petitioner claims that as per Rule 2(3) of the Public Services (Raising of Upper Age Limit for Appointment) Rules, 1978 the maximum upper age limit for direct recruitment to any post shall in no case exceed 50 years and therefore the notification to the extent it prescribed the upper age limit at 40 years is arbitrary. Pursuant to the notification he submitted application for appointment to the post of Assistant Professor in Veterinary Surgery and Radiology. The petitioner claims that as Section 58 of KVASU Act, 2010 provides that the rules for reservation of appointments to the posts under the Government in favour of SC/ST and OBC are applicable in the case of appointment of teaching and non teaching staff and other employees of the University and as statute 138 provides that service conditions of teachers shall be as prescribed in the UGC Regulations and the Government Orders as amended from time to time, the candidates like the petitioner were entitled to age relaxation by 5 years as admissible to OBC candidates. Moreover, under Statute 139 the provisions under the Kerala Service Rules, the Kerala State and Service Subordinate Rules and Kerala Government Servant's Conduct Rules for the time being in force, as amended from time to time are applicable to the teachers of the University. The petitioner claims that as per the UGC regulations, the upper age limit for appointment to a teaching post is 45 years. Being a candidate belonging to OBC, he is entitled to reservation as well as age relaxation and therefore the notification is bad in the eye of law, to the extent it does not permit relaxation of upper age limit to the members of OBC. It is his further case that he is entitled to age relaxation as well as regularization in accordance with the Note to Statute 149 as he was working under the Government and thereafter in the University on deputation and was having all the prescribed qualification for appointment as Assistant Professor. He claims that since he was on deputation in the Government Department to the University from 18.2.2012 with all the requisite qualification, he is entitled for regularisation in the post of Assistant Professor in Veterinary Surgery and Radiology. The Writ Petition was field on 24.7.2014, immediately after the notification was issued. On the basis of interim orders passed in this case, the petitioner was allowed to participate in the process of selection subject to the result of the Writ Petition. He was included in the rank list and the University thereafter appointed him as Assistant Professor subject to the result of the Writ Petition.

WP(C) No.19275 of 2014

4. Petitioner belongs to Islam-Muslim community included in OBC. He was aged 50 years at the time of notification. He joined as Veterinary Surgeon in the Department of Animal Husbandry under the Government of Kerala for the period from 25.04.1991 to 29.09.1999 after acquiring MVSc degree. He was thereafter promoted as Assistant Director and he worked in that post from 30.09.1999 to 26.10.2009. After availing study leave and acquiring Ph.D, he rejoined duty on 09.10.2012 and continued upto 27.12.2012. He has been on deputation as Assistant Professor in the University from 28.12.2013 onwards. When the notification was issued by the University, he submitted application for appointment to the post of Assistant Professor in Veterinary Epidemiology and Preventive Medicine. His claim is that since he was in Government Service after acquiring all the qualification for the post of Veterinary Surgeon in the Government Department, he was entitled to the benefit of Note to Statute 149. On the basis of the interim order passed in the connected cases, subsequently the University appointed the petitioner subject to the result of the Writ Petition. He is the 3rd respondent in WP(C).No.14174 of 2015 in which his appointment is challenged on the ground that he is over aged.

WP(C) No.30862 of 2014

5. The petitioner belongs to Hindu Ezhava community included in OBC. His age was 45 years when the notification was issued. He was working as Veterinary Surgeon in the Department of Animal Husbandry under the Government of Kerala after acquiring MVSc Degree from 28.12.1995 to 04.04.2011. He got promoted as Senior Veterinary Surgeon with effect from 05.04.2011. He was on deputation as Academic Consultant in the Department of Poultry Sciences in the College of Veterinary and Animal Sciences Mannuthy. He claimed relaxation in age on the ground that he worked in a Government Department as Veterinary Surgeon for the period from 28.12.1995 to 04.04.2011 and thereafter on deputation in the KVASU from 01.06.11 onwards and also on the ground that he belongs to OBC. In this case also the petitioner appeared in the process of selection on the basis of the interim order and subsequently he was appointed as Assistant Professor subject to the result of the Writ Petition.

W.P(C).No.565/2015

6. Petitioner was appointed as Academic Consultant in the Department of Statistics in the College of Veterinary and Animal Sciences, Mannuthy as per order dated 19.4.2012 for a period of 3 years and she had been working there from 27.4.2012. Pursuant to the notification issued by the University she submitted an application for appointment to the post of Assistant Professor in Statistics. From Ext.P2 application it is seen that she was aged 48 years as on the date of application, her date of birth being 19.1.1966. She is challenging the notification to the extent the age limit is fixed at 40 years. She further claims that as she has been working on deputation from 2012 onwards, she is entitled for regularisation in the post as well as relaxation from upper age limit. According to her, Section 57 of the Act does not prescribe the upper age limit for direct recruitment; Section 58 provides for reservation to Scheduled Castes, Scheduled Tribes and Other Backward Classes. As per Statute 138, service conditions of teachers shall be as prescribed by the UGC Regulations and the Government orders as amended from time to time. Statute 139 makes the Kerala State and Subord

Please Login To View The Full Judgment!

inate Service Rules (KS&SSR) applicable to the teachers of the University. According to her, the prescription of 40 years of age is contrary to Section 57 of the Act. She appeared in the process of selection on the basis of the interim order and subsequently he was appointed as Assistant Professor subject to the result of the Writ Petition.

W.P(C).No.15580 of 2014

7. The petitioners filed this Writ Petition on 18.06.2014 challenging the notification issued by the University for selection and appointment as Assistant Professors to the extent it excluded the petitioners, who were working on deputation in the University, from getting absorption and continuity in service in the post of Assistant Professors and seeking a direction to absorb them against the vacant posts with protection to the service rendered by them, in tune with the Note appended to Regulations 140 to 149 of the First Statutes 2014 of the University. However, all of them submitted applications and participated in the selection on the basis of interim orders passed by this Court. Out of the 12 petitioners, it is stated that petitioners 8, 10 and 12 have already rejoined their parent Department. Petitioners 5, 7 and 11 were appointed subject to the result of the Writ Petition, though they are over-aged. Petitioners 1 to 4 were working as Academic Consultants in the Dept. of Microbiology, Diary Chemistry, Diary Chemistry and Diary Business Management respectively. The 5th petitioner had been working as Veterinary Surgeon in the Animal Husbandry Department from 22.08.2005. She was appointed in the Department of Veterinary and Epidemiology and Preventive Medicine in the college of Veterinary and Animal Sciences Pookode, Wayanad w.e.f 01.06.2011 on deputation basis. Her qualification is BVSc and Animal Husbandry, MVSc and NET (subject for NET not stated). The 6th petitioner was working as Veterinary Surgeon in the Animal Husbandry Department from 31.08.2009. She was posted as Assistant Professor in the Department of Veterinary Biochemistry from 01.06.2011 onwards on deputation basis. The 7th petitioner had been working as Veterinary Surgeon in the Animal Husbandry Department from 15.01.2002 onwards. She was appointed as Assistant Professor in the Department of Clinical Veterinary Medicine in the college of Veterinary and Animal Sciences, Mannuthy from 29.1.2011. Her qualification is BVSc and Animal Husbandry, MVSc, Ph.D, NET qualification (Subject in Ph.D and NET is not given). The 8th petitioner had already returned to the parent Department. The 9th petitioner had been working as Veterinary Surgeon in the Animal Husbandry Department from 24.8.2005 and was on deputation as Assistant Professor in the Department of Veterinary Epidemiology and Preventive Medicine w.e.f 27.05.2011. Qualification is BVSc and Animal Husbandry, MVSc with NET (subject not given). The 10th petitioner already returned. The 11th petitioner had been working as Physical Education Teacher in the Education Department. He had been on deputation as Assistant Professor in the Department of Physical Education from 1.7.2011 in the college of Veterinary and Animal Sciences, Mannuthy. His qualification is Bachelor of Physical Education and Master of Physical Education with Ph.D. The 12th petitioner already returned to the parent Department. All these petitioners have filed this Writ Petition claiming absorption in the light of the service rendered by them under the Government and on deputation in the University in the respective post. They claim the benefit of Note below Statutes 140 to 149. They claimed that they were under the legitimate expectation that they would be absorbed in the respective posts in tune with the Note below Statute 149. According to them, 111 sanctioned posts were lying vacant in the University in the various colleges and centres under it. Even though they had submitted a joint representation Ext.P4 on 10.6.2014, no action was taken on it. The University issued the notification inviting application for direct recruitment on 12.6.2014 (Ext.P5 in this writ petition). They pointed out that petitioners 5, 7 and 11 are over-aged. They claim that they are entitled to age relaxation as well as for absorption. They rely on the orders Exts.P6 and P6(a) issued on 21.12.1981 and 11.8.1987 respectively by the Kerala Agricultural University by which deputationists were absorbed.

8. Respondents 1 to 3 – the University, has filed a counter affidavit stating that the provision for regularisation of deputationists provided in the Note below Statute 149 is purely discretionary and does not create any vested right on the deputationists. Para.5 in the counter affidavit is relevant which reads as follows:

“5. The Board of Management of the University have considered the first statures in its 30th meeting held on 8.6.2014 and decided against regularizing any contractual teacher/deputationist against clause 149 as the clause gives options to the University. This is as the competent authority was convinced that the open advertisement and recruitment subject to first statutes aligned to UGC regulations in force and reservation policy in force would offer fair and open opportunity to all aspirants whether in contractual/other service or out of University. Based on decision not to regularize any eligible deputation candidate, the University has through Notification No.KVASU/GA/A/1648/2014 dated 12.6.2014 advertised all vacant posts including those occupied by all contractual teachers including deputationists from Government. All are free to apply and compete against the present notification. This is conscious, well considered a decision by the competent authority and is in the nature of a policy decision. It would be appreciated that when such policy decision is taken and the same is without any kind of arbitrariness, the Courts do not exercise their power of judicial review. The decision is left to the wisdom of the authorities concerned.”

It is stated that the notification for direct recruitment was issued subsequent to the decision in the 30th meeting held on 8.6.2014 and all the vacant posts including those occupied by all contractual teachers including deputationists from Government are already notified and it was open to any qualified hand to compete again pursuant to the said notification. It is stated that though the Note to Rule 149 of the Statute provided for age relaxation equivalent to post qualified service in parent organisation for regularisation in the University service, it is only an enabling provision and the University is vested with the full discretion; it has already exercised its discretion by deciding not to regularise such persons. Therefore, the petitioners do not have any vested right to get absorbed. It is further stated that age relaxation as per the Statute and Government of Kerala norms can be permitted as per UGC guidelines to eligible candidates irrespective of whether they were presently on deputation or not. It is further stated that in case any deputationists are selected, their experience in the earlier Department and also in the University would be reckoned with respect to Rules 10.1 of the UGC Regulations.

9. As per the interim order dated.19.06.2014 in WP(c).No.15580/2014, appointments pursuant to the notification for direct recruitment was interdicted. By another order dated 19.06.2014 in W.P.(C) No.15112/2014, the regularisation of employees in terms of the Note to Statute 149 of the 1st Statute of the University was stayed. Subsequently by order dated 05.03.2015, the interim order passed in W.P(c).No.15580/2014 was modified and against the proceedings pursuant to notification was modified allowing the University to make appointments subject to the result of the Writ Petition. That interim order was made applicable to W.P. (C).Nos. 15112 of 2014, 19274 of 2014, 19275 of 2014, 26208 of 2015 and 565 of 2014. The University made appointments thereafter subject to the result of the Writ Petitions.

W.P(c).No.15112/2014

10. The 1st petitioner is a Post Graduate in Veterinary Science with specialisation in Veterinary Biochemistry with NET. The 2nd petitioner is a Post Graduate in Veterinary Science with specialisation in Animal Husbandry Extension with NET. The 3rd petitioner is a Post Graduate in Veterinary Science with specialisation in Veterinary Epidemiology and Preventive Medicine with NET and undergoing Ph.D. They are challenging the inclusion of Note to Statute 149 in the University first Statutes alleging that the same is inconsistent with the provisions in the Act. The Note starts with a non obstante clause providing for regularisation, age relaxation, etc. The petitioners allege that the said Note is added by the Government beyond its legislative competence and it is in clear violation of the mandate of Articles 14, 16 and 21 of the Constitution of India. It is pointed out that the Statutes including the first statute cannot override the parent Act though the power to make first statute is conferred on the Government. Section 49 provides that the number, qualifications, emoluments and other conditions of service of officers, teachers and other employees of the University and preparation and maintenance of records of their services and activities shall be as prescribed in the Statute. But there is no provision in the Act for relaxation and therefore the Note nullifies the Act itself. It is pointed out that the Note to the extent it provides that persons coming to the University on deputation from ICAR or Government of India or Kerala with lien there and serving on vacant University posts as on 31.12.2013 with the prescribed UGC qualifications, NET and minimum 2 years of service in the University may be given age relaxation equivalent to the post in the parent department and be regularised in the University, is beyond its legislative competence and that there is no provision in the act for such regularisation or relaxation. The powers conferred on the University as provided in the Act are to provide facilities for instruction and training in such branches of learning related to Veterinary and Animal Sciences. Section 6(xii) of the Act confers power on the University to create posts of Directors, Deans of Faculties, Teachers, etc. required by the University and also the Statutes to prescribe the scales of pay for such posts with the prior approval of the Government, qualifications, method of appointment etc. Section 52(2) confers power on the Government to make first statute and first ordinance. The power to make appointment of officers and teachers are on the managing council of the University. Chapter X of the University deals with appointment of teachers, officers and staff, subject to the provisions of the Act, Statutes and Ordinances. It further provides for reservation in appointments in accordance with Rules 14 to 17 of the KS&SSR. But there is no provision for relaxation. The qualification and method of appointment of teachers in the University are prescribed in Statute 140. The teachers, who are appointed on contract/deputation basis, based on applications invited as per Ext.P1 notification and Ext.P2 rank list prepared in 2013 are seeking regularisation/absorption in the light of the Note to the Statute. It is pointed out that while issuing the notification Ext.P1, nothing was stated regarding the eligibility for absorption. In the agreement executed by the University at the time of their appointment also, nothing was stated regarding the eligibility for absorption. At the time of those appointments made on contract/deputation, the Government have made the first statute. As per order dated 19.06.2014, the regularisation of employees in terms of the Note to Statute 149 was interdicted.

11. Respondents 2 and 3 have filed counter affidavit stating that the first statute was framed only on 19.05.2014 after the University was incorporated as per the Act 3 of 2011 on 29.12.2011. Thus the qualification of teachers including Assistant Professors was prescribed only by the Statutes made on 19.05.2014. It is stated that in order to maintain the essential teacher strength in the various faculties, the University had to resort to contractual appointments following the UGC minimum standards and also deputationists from other institutions and such appointments were styled as Academic Consultants and Assistant Professors (on contractual/deputation as the case may be). When the first statute was framed by the Government, Statute 149 was introduced with a note which confers discretion on the Board for regularisation of the deputationists subject to fulfillment of certain conditions. Vice Chancellor is also conferred with some discretion to issue notification of other faculties. It is only discretion and does not create any vested right on the deputationists. It is also stated that the Board of Management had already decided not to resort to regularisation, in its meeting held on 8.6.2014 and thereafter the University invited applications by issuing notification dated 12.6.2014. According to them, it is only an enabling provision to induct candidates. It is stated that all the vacancies which have been temporarily filled up on deputation or contractual basis have already been notified and those who fulfilled all the qualifications including age prescribed in the Rules were eligible to apply and compete. It is stated that the University requires to appoint eligible candidates against the vacancies occupied by contractual staff and deputationists in order to ensure the statutory requirements of teachers as stipulated by the Veterinary Council of India and in case teachers recruited on open competition are not appointed, the teaching strength would be insufficient. It is further stated that pursuant to notification issued by the University on 12.6.2014, the University has conducted the selection subjecting all candidates to the very same process of selection.

12. Though a counter affidavit is filed by the State Government, it does not contain anything other than what is stated by the University. Nothing is stated in answer to the contentions as to legislative competence or as to the reason behind providing a provision for regularisation. Some of the petitioners in W.P.(C) No.15580 of 2014 got impleaded in W.P.(C) No.15112 of 2014. They are claiming the benefit of the Note. Apart from the Note in the first Statute, those who claim regularisation have not pointed out any other provision under which regularisation or relaxation can be granted. Counter Affidavits of either the official respondents or party respondents do not rely on any other provision than the Note to claim regularisation or relaxation.

W.P(c).No.19908/2014

13. Petitioner had been working as Assistant Professor in the Regional Research and Training Centre in the University after acquiring MVSc, NET, MBA etc. He had been working as a Veterinary Surgeon in the Animal Husbandry Department from 14.01.2002 onwards. He was appointed as an Academic Consultant in the University, on deputation on 5.12.2012. He was redesignated as Assistant Professor on 1.10.2013. Whileso, pursuant to notification issued on 12.6.2014, he submitted Ext.P4 application for regular appointment, on 25.6.2014. He attained 40 years of age on 23.7.2014. Only because the last date fixed for receipt of application was 30.7.2014, he became ineligible. The learned Senior Counsel points out that at least 13 Universities in India have prescribed the age limit for appointment, as on 1st January of the year in which selection is made. It is also pointed out that no age limit is prescribed for appointment under the UGC regulations. Statute 139 provides that service conditions of teachers in UGC Regulations and Government Orders issued from time to time would follow. The petitioner crossed the upper age limit one week ahead of the last date for receipt of application. Though the petitioner claimed regularisation and age relaxation relying on the Note below Statute 149, at the time of hearing, the learned Senior Counsel submitted that the petitioner is not pressing those contentions. Therefore, the only contention of the petitioner is that the upper age limit for appointment shall be reckoned as on the first day of January of the year in which applications were invited, as in the case of the University of Kerala, University of Calicut, University of Fisheries and Ocean Studies, Kerala Agricultural University, M.G University, Kannur University, Government Engineering College etc., as can be seen from Exts.P10 to P16. The petitioner also relies on the provision in Ext.P3 notification which provides that the Government orders issued from time to time would apply to the selection. It is pointed out that Public Services (Date for Determination of Age for Eligibility for Appointment) Rules, 1977, provides for determining the age as on the first day of January of the year in which applications are invited. The contention of the petitioner is that Government Orders issued from time to time as well as the regulations of UGC are applicable to the selection and appointment in the University and therefore the age limit has to be reckoned as on 1st January. The petitioner has produced Exts.P19 and P20 minutes of the Board of Management, whereby it was decided to reckon the age limit as on 1st January, and produced Ext.P27 agenda notes for the meeting held on 30.10.2017 along with I.A.No.1/2018, pointing out that there was a suggestion for amendment regarding the prescription of age limit to make it as 1st January of the year in which applications are called for in the light of the 1977 Rules and the rules followed in all the Universities. It is also pointed out that the age reckoned as on 1st January as per Statute 195, for non teaching staff also will not alter the situation. The petitioner points out that Statute 138 which provides that service conditions of teachers shall be as prescribed in the UGC Regulations and the Government Orders issued from time to time and Statute 139 which make applicable the provisions in the KS&SSR and therefore the rules applicable for Government servants and those in other Universities have to be applied. According to the petitioner, it would be harsh to deny appointment or even to cancel the appointment after all these years just because he was over-aged by just one week. On the basis of the interim order dated 04.08.2014, this Court directed to consider the candidature of the petitioner. Thereafter, the University appointed the petitioner subject to the result of the Writ Petition, pursuant to the common order passed on 05.03.2015. It is stated that the University has declared the probation of the petitioner.

14. The respondent University has filed a counter affidavit, in which it is stated that the age is to be determined as on the last date for receipt of application as provided in the notification. It is stated that the petitioner was deputed to the University w.e.f 5.12.2012 before the statutes were framed. He did not have two years deputation service as on 31.12.2013. As the petitioner crossed the age of 40 years as on 31.7.2014, he is not eligible for submitting application and the claim for relaxation of upper age is not admissible; there is no provision in the Act or Statute which provides for relaxation of age for determining the upper age limit as on the first day of January of the year.

15. The 4th respondent has also filed counter affidavit pointing out that Ext.P8 is not applicable to the Universities and the said Rules are not adopted by the University. Statute 139 is specific to the extent it provides that subject to the provisions in the Act and Statute, the KS&SSR etc. would be applicable.

W.P(C).No.19030/2015

16. Petitioner submitted application for appointment as Assistant Professor in Veterinary Science (Physiology) and she is rank No.4 in the rank list. She is challenging the appointment of the 2nd respondent, who is the petitioner in W.P(C).No.19908/2014, on the ground that she is over-aged.

W.P(C).No.9353/2015

17. Petitioner challenges the appointment of the 3rd respondent, who is the petitioner in W.P(c).No.19274/2014 as Assistant Professor in Veterinary Surgery and Radiology. The petitioner is rank No.6 and the 3rd respondent is rank No.4. The 3rd respondent was over-aged at the time of notification itself and he filed W.P(c).No.19274/2014 claiming age relaxation and regularisation under Note to Statute 149. The petitioner points out that the 3rd respondent is not eligible for the benefit of Note to Statute 149 as the said benefit is available only to those who had completed 2 years of service in the University as on 31.12.2013. It is also his case that the 3rd respondent is not eligible for relaxation of age under Statue 140, as the maximum age fixed is 40 years. It is also the case of the petitioner that there is no conscious decision taken by the University to provide age relaxation and the notification does not even indicate the same. Therefore, it is the case of the petitioner that she, being the next candidate in the rank list, eligible for reservation under Ezhava/Thiyya community within the age limit, is entitled to appointment.

18. In the counter affidavit of the 2nd respondent it is stated that selection procedure followed by the Kerala Public Service Commission would be followed in the selection of Assistant Professors in the University, with respect to age relaxation. However, it is stated that the 3rd respondent was allowed to participate in the selection process based on the interim order passed in W.P(c).No.19274/2014 and that the 3rd respondent is not entitled to the benefit of age relaxation.

W.P(c).No.14174/2015:

19. Petitioner is challenging the appointment of respondents 3 to 5. The petitioner is a Master's Degree Holder in Veterinary Science (Veterinary Epidemiology and Preventive Medicine) and with NET. She has worked in the University as Assistant Professor on contract basis in the very same subject from 15.01.2014 to 08.03.2015. In the notification issued by the University on 12.6.2014, 9 vacancies were notified in the Department of Veterinary Epidemiology and Preventive Medicine, out of which 3 were in the college of Veterinary and Animal Sciences, Pookode and 6 were in the College of Veterinary and Animal Sciences at Mannuthy. In Ext.P3 rank list published on 11.2.2015 the petitioner is rank No.8, but respondent No.3, who was over-aged and was 50 years at the time of submitting the application, is rank No.3. Similarly, respondent No.4, who was also above the age of 40 years and rank No.1, got appointment. In the case of the 5th respondent, the case of the petitioner is that he does not have the prescribed qualification. His qualification is Master of Veterinary Science Degree in Epidemiology and Ph.D in Bacteriology. The qualification prescribed for the post as per the notification is “good academic record as defined by the concerned University with at least 55% marks (or an equivalent grade in a point scale wherever grading system followed) at the Masters Degree level in a relevant subject from an Indian University, or an equivalent degree from an accredited foreign University. The candidate must have cleared the NET conducted by the UGC, CSIR or similar test. Referring to the provisions in Statute 140 (iii) it is pointed out that what is required is academic records with at least 55% marks in Masters Degree level “in a relevant subject”, from an Indian University. According to the petitioner, the qualification of the 5th respondent is in Epidemiology and Ph.D is in Bacteriology. For the post of Assistant Professor in Veterinary Epidemiology and Preventive Medicine, Master of Veterinary Science Degree in Epidemiology or Ph.D in Bacteriology cannot be said to be one in any relevant subject; Epidemiology as well as Bacteriology are non clinical subjects. The Department of Epidemiology and Preventive Medicine in the University is clinical in nature. The petitioner submits that Epidemiology is a non clinical course which does not involve clinical practice, treatment etc. but mainly involves survey of animal diseases, surveillance and monitoring of livestock diseases, animal disease forecasting, strategies of disease management, prevention, control and eradication, economics of animal diseases and national and international regulations on livestock diseases.

20. The 4th respondent has filed a counter affidavit in which it is stated that she is entitled to relaxation from upper age limit by 3 years age as she belongs to OBC, as provided in Rule 10(c) of Part II of KS&SSR; her date of birth being 23.7.1973 she would be within the age limit in case the said relaxation is granted. As on the last date fixed for receipt of application viz. 31.7.2014, her age was 41 years 2 months and 6 days. She has also produced the non creamy layer certificate issued by the Village Officer. It is also stated that she is already appointed in the post of Assistant Professor and the said order of appointment is not challenged and therefore no relief can be granted as against her. According to her, as per Section 58, Statutes and provisions in KS&SSR are made applicable to the teachers of University and therefore she is within the age limit. Along with I.A.No.1/2018, the 4th respondent produced Ext.R4(c) report dated 02.07.2018 of the committee constituted by the academic council of the University to review the score card, submitting revised proposal for approval of the academic council. Clause 2 of the proposal is on relaxation of age, qualification, etc., for eligible candidates as per Central/State Government rules in vogue. Relying on the proposal it is stated that the 4th respondent is eligible for age relaxation.

21. The 3rd respondent, who is the petitioner in W.P(c).No.19275/2014, has not filed any counter affidavit. But she claims age relaxation in her Writ Petition relying on clause 2(3) of the Public Services (Raising of upper age limit for appointment) Rules, 1978 which provides for a maximum upper age limit for direct recruitment to any post as 50 years. She has also claimed for absorption/age relaxation on the ground that she has been working in the University from 28.12.2013 onwards.

22. The 1st Respondent has filed counter affidavit stating that they followed all the prescribed procedures including the reservation roster envisaged in Section 58 of the Act, Statute and orders issued from time to time. It is stated that though 9 vacancies were notified in the discipline of Veterinary Epidemiology and Preventive Medicine, 6 candidates could be appointed; 3 vacancies are kept unfilled as NCA (no candidate available) under Ezhava, SC and LC as per Rule 15(a) of KS&SSR; rank No.1 was appointed as a candidate in general category applying the reservation rules. The 3rd respondent was considered on the basis of the interim directions issued by this Court in W.P(c).No.19275/2014. It is stated that being a candidate belonging to Ezhava community, she is eligible for upper age relaxation by 3 years as per the Kerala State and Subordinate Service Rules. According to them, clinical practice is not included in the PG syllabus of Veterinary Epidemiology and Preventive Medicine. Regarding the contentions with respect to the nature of the subject it is stated in paras.6 and 7 as follows:

“6. The contentions in para.8 are not factually true. Clinical practice is not at all included in the PG syllabus of Veterinary Epidemiology and Preventive Medicine. This clearly indicate that ICAR does not consider clinics to be an essential qualification for this discipline, which is clear from Ext.P5 itself. Clinical Practice is mandatory for the PG syllabus of Animal Reproduction, Gynaecology & Obstetrics, Veterinary Clinical Medicine, Ethics and Jurisprudence & Veterinary Surgery & Radiology.

7. xxxxxxxx Post Graduate subject content of Post Graduate subject content of Veterinary Epidemiology and Preventive Medicine as per ICAR 2009 is addressed differently by differentUniviersities of India. Some grant post graduate degree of Veterinary Epidemiology and Preventive Medicine and others in Epidemiology while still others grant degree of Veterinary Preventive Medicine; these are mere changes of nomenclature, the course content will cover the entire ICAR PG syllubus for this discipline and only one PG Degree will be granted by each institution. xxxxxxxx”

According to the respondents, much difference is not there in MVSc in Veterinary Preventive Medicine and MVSc in Epidemiology and Preventive Medicine. The respondent has stated that the name of the post is changed only recently. It is also pointed out that syllabus content of Epidemiology from Indian Veterinary Research Institute, a premier institute in Veterinary post graduate studies and research and syllubus of the respondent University, are more or less similar.

23. The petitioner has filed reply affidavits refuting the contentions of 1st and 4th respondents. Producing Ext.P8 minutes of the 32nd general body meeting of the Board of Management of the University held on 02.08.2014, the petitioner asserted that there was no decision by the Board to grant any age relaxation. It was pointed out that there was no notification providing for age relaxation. It is pointed out by the learned counsel for the petitioner that her deputation in the University commenced only on 28.12.2013 and even going by the Note below Statute 149, only those who have 2 years of service as on 31.12.2013 alone would have any claim for absorption/age relaxation. In answer to the contention of the University regarding the qualification possessed by the 5th respondent, the petitioner has produced Exts.P9 to P11 the PG Degree acquired by him which does not have any relevance for the concerned discipline. Producing Ext.P9 notification issued by the Agricultural Scientists Recruitment Board for NET Examination 2011, the petitioner points out that Veterinary Epidemiology comes under the discipline of Para Clinical Veterinary Science and the Veterinary Preventive Medicine comes under Clinical Veterinary Sciences. It is pointed out that only when these two disciplines come together i.e. Veterinary Epidemiology and Preventive Medicine, the ICAR would treat it as a Clinical Veterinary Science. She has also produced the syllabus for these 2 disciplines pointing out that these syllabus for the discipline Epidemiology and that for the discipline Veterinary Epidemiology and Preventive Medicine in the PG level of Indian Veterinary Research Institute are not at all similar as contended by the University and that both are treated as 2 different disciplines.

24. The 5th respondent has not filed any counter affidavit. The 1st respondent has not stated anything regarding the appointment of the 4th respondent, who is 5th petitioner in W.P(c).No.15580/2014, which is filed claiming regularisation and relaxation from upper age limit. All appointments are made subject to the result of the pending writ petiitons. Relying on the judgment in Ganapath Singh Gangaram Singh Rajput v. Gulbarga University [(2014) 3 SCC 767] where the Apex Court interpreted the expression “post graduate degree in relevant subject”, it was argued that the 5th respondent did not have the post graduate degree in a relevant subject. In that case it was found that Post Graduate Degree in Mathematics cannot be a relevant subject for MCA. The appointment was held illegal.

25. On consideration of the pleadings and rival contentions on both sides, it appears that the petitioner who is rank No.8 in Ext.P3 list, would be eligible for appointment only if 3 candidates - respondents 3, 4 and 5, are found ineligible. Though 9 vacancies are notified, only 6 candidates were given appointment. Other vacancy is kept apart as NCA. In the case of respondents 3 and 4, who are overaged, I find that as Statutes do not provide for age relaxation for OBC candidates when there is a separate provision regarding the age relaxation and it does not include OBC and Statute 139 starts with “subject to the Act and Statute”, it cannot be said that Rule 10(c) of KS&SSR is applicable. The Fixation of upper age limit Rules 1977 is not made applicable to the University either by any provision in the Act or in the statute. Therefore, either the 3rd respondent or the 4th respondent would not be eligible for age relaxation. The University themselves have stated that they have not exercised the discretion for regularisation provided in the Note to Statute 149. Even otherwise, the Note only provides for age rleaxation/regularisation to only those who were having 2 years of service as on 31.12.13.

26. The case of the petitioner against the 5th respondent is that his qualification is not in a relevant subject. The post notified is in the discipline of Veterinary Epidemiology and Preventive Medicine and the 5th respondent does not have PG Degree in that discipline or in a relevant discipline. On the other hand, the petitioner is a Post Graduate in Veterinary Epidemiology and Preventive Medicine, as can be seen from Ext.P1. She passed NET in Clinical Veterinary Science. The petitioner has produced various materials to show that the qualification acquired by the 5th respondent is not the one in a relevant subject. PG Degree in a relevant subject is the requisite qualification for appointment. The Post Graduate Degree acquired by the 5th respondent is seen to be only in part of the subject. As argued by Sri. Isaac, the Apex Court had in the judgment in Ganapath Singh's (supra), considered a case where a candidate having Post Graduate Degree in Mathematics was appointed as Lecturer in MCA. The Apex Court found that the selection of the post graduate in Mathematics, only because Mathematics was one of the subjects for MCA was illegal. The Apex Court observed that it would be too much to say that a candidate having postgraduate degree in any of the subjects taught in MCA would make the holders of a Masters degree in those subjects as holder of Masters degree in Computer Application and that when a candidate possessing Masters degree in MCA is available, the action of the Board of Appointment in selecting an unqualified and ineligible person was shocking. It would appear that the selection of the 5th respondent in the present case also requires a similar consideration, based on the materials produced. Though there is considerable force in the contention of the learned Counsel for the petitioner, who vehemently argued with the support of various materials, and I am also of the view that a candidate who does not have a PG Degree in a subject which is relevant is not eligible for appointment, I am of the view that the matter requires consideration by experts in the field. This Court does not have the expertise to determine whether there is relevancy and whether the syllabus would indicate the difference in the two disciplines, whether it is clinical or non-clinical, etc., which are to be looked into by the authorities after referring the matter to a committee of experts.

27. The 5th respondent has not entered appearance despite service of notice. In fact in the absence of any objection from his part, it has to be presumed that what is claimed by the petitioner is liable to be accepted. However, since the matter can be decided only by the academic experts, I find that a reconsideration is necessary at the instance of the University. Hence I find that the appointments of respondents 3 and 4 after giving them age relaxation are unsustainable. Their appointments were made subject to the result of the Writ Petition. The stand of the University that they are eligible for relaxation under Rule 10(c) or that eligibility is as admissible to the Public Service Commission hands, is unsustainable. The appointment of the 5th respondent would be subject to the decision of the committee of experts.

28. I heard Smt. V.P. Seemanthini, learned Senior Counsel instructed by Adv. K.P. Rajeevan, M/s P.C.Sasidharan and P.V. Jayachandran, the learned Counsel appearing for the petitioners as well as for party respondents in some of the cases, M/s S. Ramesh, P.Rahul and Issac Kuruvila Illikkal, the learned Counsel appearing for the petitioners, Smt. Aysha Youseff, the learned Standing Counsel for the University, Smt. Mary Beena Joseph, learned Senior Government Pleader, M/s. Elvin Peter and Ganesh, learned Counsel appearing for the party respondents.

Common grounds:

29. Certain common questions to be considered in these cases are whether the candidates, who were working in the University on deputation basis or otherwise, were entitled to regularisation/relaxation in upper age limit; similarly whether the candidates belonging to Other Backward Classes (OBC) are entitled to age relaxation as provided in Rule 10(c) of KS&SSR. First of all I shall deal with the claim for relaxation in the upper age limit, on grounds other than under Note below Statute 149. Petitioners in W.P.(C) Nos.19274/2014, 19275/2014, 30862/2014 and 565/2015, some of whom are also party respondents in W.P.(C) No.14174/2015, have claimed age relaxation on various grounds including Rule 10(c) of KS&SSR, Rule 2(3) of the Public Services (Raising of Upper Age Limit for Appointment) Rules, 1978. The petitioner in W.P.(C).No.19908 of 2014 is claiming that upper age limit has to be determined in accordance with Public Services (Date for Determination of Age for Eligibility for Appointment) Rules, 1977.

30. Adv. Isaac Illikal, relying on the judgment in Sree Sankaracharya University of Sanskrit and others v. State & Ors: 1996(2) KLT 378 argued that unless the advertisement specifically provides for relaxation in any qualification including age limit, no relaxation can be granted. It was also argued that Rule 10(c) of Part II of KS&SSR is not made applicable for selection and appointment to the teaching post in the University and relaxation is permissible only for SC/ST category, under Statute 140 of the University Statutes. Referring to Statute 139, it is pointed out that the applicability of the provisions in KSR and KS&SSR is “subject to the provisions of the Act and Statutes issued thereunder”. Therefore, when there is a specific provision in the Statute viz. Statute 140, which provides for relaxation of age only to SC/ST candidates, there cannot be any further relaxation and therefore Rule 10(c) of KS&SSR will not apply as it would be inconsistent with the Act and since no other rule relating to age limit is adopted and there is no regulation of UGC which prescribes upper age limit or relaxation in upper age limit, which can be applied in the case of those claiming relaxation. Relying on the judgment in Vijayachandran Pillai v. University of Calicut [2009 (3) KLT 176] Adv. Ramesh also argued that unless relaxation, if any, in the age limit is duly notified, there cannot be any relaxation during the process of selection. On the other hand, Sri Ganesh appearing for the 4th respondent, who was already over-aged, relied on para.31 of the judgment of the Apex Court in Girjesh Shrivastava v. State of M.P [(2010) 10 SCC 707], where it was found that an order for cancellation of an appointment would render most of the appellants unemployed. Seeing that they had left their previous employment in view of the new employment, it was found that they would be severely affected by the economic insecurity. Observing that most of them were in the age group of 35 to 45 and the prospects for getting them another job was dim, the judgment of the High Court was quashed observing that equities were not properly balanced while exercising the discretion by the High Court. Relying on the judgment in Ajet Kumar v. Sunil Kumar [ILR 1993 (2) Ker.765], where a Division Bench of this Court refrained from interfering with the selection in view of the lapse of time since the selection, it was argued that interference is not warranted in the selection.

31. I have considered the pleadings and contentions advanced. The Kerala Veterenary and Animal Sciences University Act, 2010 came into force on 14.06.2010, with its Head Quarters at Pookode in Wayanad District. Chapter X of the KVASU Act 2010 deals with appointment of Teachers, Officers and staff. Section 57 deals with appointment of Teachers. Sub section (1) of Section 57 provides that the members of the Teaching Staff of the University shall be appointed by the Board of Management subject to the provisions of the Act, Statutes and Ordinances. Sub section (5) provides that the procedure of selection of officers, teachers and other employees of the University shall unless otherwise provided in the Act be such as may be prescribed. Section 58 provides that the rules of reservation for appointment to posts under the Government in favour of Scheduled Caste or Scheduled Tribe and Other Backward Classes shall apply in the case of appointment of teachers and non-teaching staff and other employees of the University. The Veterinary and Animal Sciences University First Statute 2014 were issued in GO(P) No.108/14/AD dated 19.5.2014 in exercise of its powers under Subsection 2 of Section 52 of the Act and it was published in Kerala Gazette Extraordinary dated 20.5.2014. Chapter III of the Statute deals with teachers of the University. Statue 138 provides that the service conditions of the teachers shall be as prescribed by the UGC regulations and Government orders as amended from time to time. Statue 139 reads as follows:

139. Applicability of certain Rules to University Teachers:- Subject to the provisions of the Act and Statutes issued there-under, the Kerala Service Rules, the Kerala State and Subordinate Service Rules and the Kerala Government Servant's Conduct Rules for the time being in force, as amended from time to time, shall mutatis mutandis apply to the teachers of the University, with such modification as the context may require and the expression “Government” in those rules shall be construed as a reference to the “University”.

Statute 140 provides for the qualification for appointment to the post of Assistant Professor by direct recruitment. Masters Degree in a relevant subject with at least 55% marks is the general educational qualification with relaxation to SC/ST/differently abled categories. It further provides that the candidates should have cleared the National Eligibility Test (NET) conducted by the UGC, CSIR or similar test accredited by the UGC. Clause (iii) provides that NET/SLET/SET shall not be required for such Masters Programmes in the disciplines for which NET/SLET/SET is not conducted. Upper age limit for appointment is provided in Clause (iii) of Rule 140, which reads as follows:

“(iii) NET/SLET/SET shall also not be required for which Master programmes in disciplines for which NET/SLET/SET is not conducted. No candidate shall be eligible for the post, if he/she attains the age of 40 years on the last date of application for the post. For candidates from SC/ST category, a relaxation of five years shall be given in the upper age limit.

(emphasis supplied)

Therefore, under clause (iii) of Statute 140, the upper age limit for submitting application is prescribed as 40 years and that should be reckoned as on the last date of application for the post. Relaxation of 5 years is provided only for candidates from SC/ST category alone.

32. The stand of University on relaxation of age appears to be inconsistent. In certain counter affidavits or even in the very same counter affidavit they have stated that the concession as admissible to recruitment by Kerala Public Service Commission is admissible; at the same time they also say that age should be as prescribed in the Statute. For recruitment through Public Service Commission wherever KS&SSR are applicable, OBC candidates are eligible for relaxation by 3 years. But University is bound by the provisions in the Act and Statutes. Going by Statute 139, the provisions contained in KS&SSR, KSR and Government Servant's Conduct Rules apply to the teachers of the University, only subject to the provisions of the Act and Statute. When Statute 140(iii) provides for a specific age limit of 40 years and relaxation is provided only to the members of SC/ST category, there is no basis for the contention of the petitioners for relaxation of upper age limit in terms of the provisions contained in Rule 10(c) of KS&SSR , for the candidates belonging to Other Backward Community. When there is a specific provision for the upper age limit in the Statute and there is no provision for relaxation of age provided either in the Act or Statute, the provisions in KS&SSR, which is not in tune with the provisions in the Statute, would not apply. Statute 140 (iii) is specific in granting relaxation in age to SC/ST candidates alone, the application of provisions in Rule 10(c) to the extent it relates to age relaxation to OBC candidates is impliedly excluded. Therefore, the provisions in Statute 139 can only be understood in the light of clause (iii) of Statute 140 and that can only be interpreted to mean that age relaxation contemplated in Rule 10(c) of KS& SSR cannot be made applicable to the appointments of teachers in the University. It has to be understood to mean that there is specific exclusion of OBC candidates from grant of age relaxation, as clause (iii) of Statute 140 does not include OBC candidates for age relaxation. All candidates other than those belong to SC/ST should be within the age limit of 40 years as on the last date fixed for receipt of application. In case such age limit was not prescribed or even relaxation was not provided to SC/ST candidates, the contention of the petitioners could have been accepted. Statute 139 makes it clear that the applicability of KS&SSR and other rules is subject to the provisions in the Act and Statute issued thereunder. Therefore, the contention raised by such of the petitioners, who claim relaxation in age relying on Rule 10(c), is unsustainable. Applicability of rules of reservation provided in Section 58 does not take in relaxation from the maximum age limit. Reservation never amounts to relaxation in age which are governed by separate provisions. There is no provision either in the Act or Statutes which provides that provisions in Public Services (Raising of Upper Age limit for Appointment) Rules 1978 would be applicable. Those rules do not apply to Universities unless adopted. Therefore, the claim of the petitioners in these cases for relaxation in upper age limit under Rule 10(c) of KS&SSR is unsustainable. Their claim for consideration of their candidature is in tune with Public Services (Raising of Upper Age limit for Appointment) Rules 1978. Thus the petiitoners in W.P.(C) No.19274 , 19275, 30682 of 2014 and 565 of 2015 are not entitled to be considered for appointment, as they are overaged.

33. Similar is the case with the Public Services (Date for Determination of Age for Eligibility for Appointment) Rules 1977, based on which the petitioner in W.P. (C).No.19908 of 2014 claims consideration of his candidature. Though the learned Senior Counsel pointed out that it is only a question of one week by which the petitioner therein has become disqualified, in the absence of any provisions in the Statute which provides either for age relaxation or by making the 1977 Rules applicable, the petitioner cannot have any right to be considered for selection and appointment. Though the petitioner had not crossed 40 years of age at the time when the notification was issued or when he submitted application, the notification specified that candidates should not have crossed the age of 40 years as on the last date fixed for receipt of application, which was 31.7.2014. Therefore, the petitioner, who attained the age of 40 on 23.7.2014, had crossed the age of 40 as on 31.7.2014 and therefore he was not entitled to be considered for appointment as he was overaged. Though it may be true that Universities as well as the Government, have prescribed the age limit as on the first day of January of the year in which applications are called for, in tune with Rule 2 of the l977 Rules, (Ext.P8 therein), the University has not adopted those Rules. The notifications Exts.P9 to P16 issued by other Universities in the State prescribing the age limit as on the 1st January of the year in which applications are called for, will not be of any help to the petitioner. Whenever a date is prescribed, there would be some candidates who would be overaged by prescription of that date. Even assuming that the University had taken a decision to amend the Rules, it is an admitted fact that amendment is not so far effected. It is also relevant to note that even if the Statute provided for any age relaxation or a subsequent decision was taken to determine the age as on 1st January in the absence of a re-notification to that effect enabling all the beneficiaries of such modification in the date with respect to age limit, no selection can be conducted, as it would amount to a fraud on public, as held by the Apex Court in Distt. Collector & Chairman, Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi: [(1990) 3 SCC 655] and by this Court in Sree Sankaracharya University of Sanskrit and others v. State & Ors: 1996(2) KLT 378. Therefore, the petitioner is not entitled to be considered for appointment. Common issue arising in W.P.(C) No.15112 of 2014 and W.P.(C) No. 15580 of 2014, 19274, 19275, 30862 of 2014 and 565 of 2015:

34. The next question to be considered is whether the petitioners in W.P.(C) Nos. 15850 of 2014, 19274, 19275, 30862 of 2014 and 565 of 2015 are entitled to regularisation or relaxation of age in tune with the Note below Statute 149 and whether the Note is inconsistent with the provisions of the Act, as urged by the petitioners in W. P.(C).No.15112 of 2014. Relying on the judgments in Kunj Behari Lal Butail v. State of H.P [(2000) 3 SCC 40] and Additional District Magistrate (Rev.) v. Siri Ram [(2000) 5 SCC 451], Adv. P. C. Sasidharan, the learned Counsel for the petiitoners, argued that the Note below Statute 149 is inconsistent with the provisions of the Act and hence it is liable to be declared void. If the rule making power is confined to specified matters, it has to be exercised for those matters and even otherwise it can only be for carrying out the purposes of the Act. The Note below Statute 149 reads as follows:

“Note:-- Notwithstanding anything contained in Statutes 140-149, provided that officers on deputation for academic duties to the University from ICAR or Government of India or Government of Kerala Departments having permanent position and lien there and serving on vacant University posts as on 31.12.2013 with prescribed UGC Qualifications, NET and minimum two years of deputation service in the University may be given age relaxation equivalent to the post qualified service in parent organization and be regularized in the University service. Vice-Chancellor shall be competent to notify `Adjunct Faculty' or `Honorary Faculty' of comparable rank. `Adjunct Faculty' or `Honorary Faculty' such as Honorary Professor shall be supernumerary and appointed on honorarium basis for performing specific functions and duties for particular period and shall not be permanent employees. They shall, however, perform all duties as prescribed for `Teachers' except evaluation of papers/administrative responsibilities.”

35. The respondent University has stated that the Board of Management has already taken a decision not to regularize anybody invoking the Note below Statute 149. However, as the very introduction of the Note is under challenge, it is necessary to examine the validity of the Note. In fact Statute 149 deals with appointment by career advancement scheme. The Note given under it does not have any relation with what is provided under Statute 149. However, the Note begins with a non-obstante clause stating “notwithstanding anything contained in Statutes 140- 149” and provides that officers on deputation for academic duties to the University from ICAR or Government of India or Government of Kerala Departments having permanent position and lien and serving on vacant University posts as on 31.12.2013 with prescribed UGC qualifications, NET and minimum 2 years of deputation service in the University, may be given age relaxation equivalent to the post qualified service in parent organization and shall be regularized in the University service. It is seen that though the University Act came into force on 14.06.2010, the first Statutes were issued only in the year 2014. It is stated that after the enactment and bifurcation of the Agricultural University, certain Faculties were appointed on contract basis pending proceedings for regular appointment after framing the First Statute. Several persons working in the Animal Husbandry Department were appointed on deputation basis as Academic Consultants and thereafter as Assistant Professors. Such persons have claimed regularisation or age relaxation.

36. From the preamble of Act 3 of 2011 it is seen that the University was established and incorporated for the purposes of development of Veterinary and Animal Sciences and for the purpose of ensuring proper and systematic instruction, teaching, training and research and extension exclusively in Veterinary and Animal Sciences in the State. Under Section 6 (xii) the University has to create posts of teachers and other non-vocation academic posts required by it; it also provides that the qualification and the method of appointment to the post shall be prescribed by Statute and that scale of pay of the posts shall be prescribed by Statutes with the approval of the Government. As per Section 23, the Management Council is the supreme authority of the University. Under Subsection 2(a) thereof, the power to make, amend or repeal the Statutes is on it. It has to regulate all matters relating to University in accordance with the Act, Statute and Ordinance. Under subsection (2) (q) it has to prescribe the duties and conditions of teachers. Under subsection 2(v) of Section 26, the Board of Management is empowered to appoint teachers and other employees and prescribe their duties. Section 49 of the Act empowers the Management Council to make Statutes on all or any matter prescribed in clause (i) to (xxv).Section 49 of the Act read as follows:

“49. Statutes: subject to the provisions of this Act, the Management Council shall have, in addition to all other powers vested in it, the power to make statutes which provide for all or any of the following matters, namely:-

(i). the Constitution, conduct of election or nomination, powers , functions and duties of the authorities of the University.

(ii) the appointment and continuance in office of the members of the authorities or bodies of University including the continuing in office of the first members and filling up of vacancies and all other matters relating to those authorities and bodies, for which it may be necessary or desirable to provide:

(iii)The designation, the manner of appointment, the qualification for the posts, the powers and duties of the officers of the University:

(iv) method of recruitment of teachers and other employees in the University and the teachers of the affiliated colleges:

(v) the powers and duties of the offices, teachers and other employees of the University:

(vi) the Constitution of pension fund, gratuity fund and provident fund:

(vii) the holding of convocation and conferment of honorary degrees:

(viii) the institution of degrees and diplomas:

(ix) conferment of honorary degrees:

(x) the establishment, amalgamation, sub division and abolition of deviations:

(xi) the establishment and abolition of hostels maintained by the University:

(xii) the institution of fellowships, scholarships, studentship-bursaries medals and prizes:

(xiii) the maintenance of a register of registered graduates:

(xiv) the admission of students to the University and their enrolment and continuance as such:

(xv) the courses of study to be laid down for the reason diplomas of University:

(xvi)the conditions under which students shall be admitted to the degree, diploma or other courses and the examinations of the University and the eligibility for the conferment of degrees and award of diplomas:

(xvii) the conditions of residence of the students of the University and the levying of' fees for residence in hostels maintained by the University:

(xviii)the recognition and supervision of hostels not maintained by the University:

(xix) the number, qualifications, emoluments and other conditions of service of officers, teachers and other employees of the University and the preparation and the maintenance of records of their services and activities:

(xx) the fees which may be charged by the University for any purpose:

(xxi) the conditions and the mode of appointment and the duties of examining bodies, examiners and moderators:

(xxii) the conduct of examinations:

(xxiii) the remuneration and allowances including travelling and daily allowances to be paid to persons employed on the business of the University:

(xxiv) the conditions for the award of fellowships, scholarships, medals and prizes, stipends and fee concessions: and

(xxv) any matter as may be prescribed by Statute or which is necessary to give effect to the provisions of this Act.

(emphasis supplied)”

37. From Section 49, it is seen that power to make statutes is on the Management Council and such Statute with respect to teachers of the University are as contained in clause (v) regarding the method of recruitment of teachers of the University and clause (xix) regarding the number, qualifications, emoluments or other conditions of their service, preparation and mentainance of their service records. Clause (xxv) of Section 49 empowers the Management Council to make statute on any matter as prescribed by statutes or which is necessary to give effect to the provisions of the Act. Section 6(xii) empowers University to create the post of teacher, qualification, method of appointment, scale of pay, etc. Section 50 provides for the procedure prescribed for making statutes. Under Section 51, the Board of Management is empowered to make Ordinances providing for all or any of the matters provided therein. Section 52 provides for the procedure for making ordinance. However, under subsection 2, the first statute and first ordinance are to be made by the Government. The appointment of teachers in the University is provided in Chapter X of the Act. Under Section 57 of the Act, appointment of teachers, officers as well as staff of the University has to be made by the Board of Management, subject to the provisions of the Act, Statutes and Ordinances. Subsection 5 of Section 57 provides that the procedure for selection of officers, teachers and other employees of the University shall unless otherwise provided for in the Act, be such as may be prescribed. Section 58 provides that the rules of reservation for appointment to posts under the Government in favour of Scheduled Caste or Scheduled Tribe and Other Backward Classes shall apply in the case of appointment of teachers and non-teaching staff and other employees of the University. The Veterinary and Animal Sciences University First Statute, 2014 were issued in GO(P) No.108/14/AD dated 19.5.2014 in exercise of its powers under Subsection 2 of Section 52 of the Act and it was published in Kerala Gazette Extraordinary dated 20.5.2014. Chapter III of the first Statute which consists of Statutes 132 to 163 deals with teachers of the University. Statute 132 reads as follows:

“ 132. Appointment of teachers: (1) The teachers of the University shall , other than short term contract appointments, be appointed by the Board of Management after advertisement inviting applications by issuing notifications in the University website and through all India advertisement in one prominent new paper. In making appointments by direct recruitment to posts in any class or category in each department under the university, the University shall observe the provisions of the selection procedures approved by the academic council based on the UGC Regulations as amended from time to time.

(2) After interviewing the candidates the selection committee shall submit the list of eligibility in the order of preference to the Vice Chancellor;

(3) the Vice-Chancellor shall then submit the list to the Board of Management which shall thereupon make the final selection for appointment.

(4) in making appointment to the posts in any class or category in each department under the university, subject to the provisions contained in Section 58 of the Act, the University shall observe the provisions of Clause (a), (b) or (c) of rule 14 or rule 15, 16 and 17 of the Kerala State and Subordinate Service Rules, 1958 as amended from time to time.

(5) Teachers entering service of the University shall be under probation for a period of one year duty within a continuous period of two years and shall be absorbed into regular service by an order of the university issued by registrar on fulfilling the requirements of the performance based appraisal system adopted by the university." Statute 138 provides that the service conditions of the teachers shall be as prescribed by the UGC regulations and Government orders as amended from time to time. Statue 139 makes the provisions in Kerala Service Rules, the Kerala State and Subordinate Service Rules and the Kerala Government Servant's Conduct Rules subject to the provisions of the Act and Statutes issued there-under.

38. Statute 140 provides for the qualification for appointment to the post of Assistant Professor. Note below clause (ii) thereof provides that the subsequent amendments issued by UGC shall be applicable for appointment of Assistant Professors. Clause (iii) includes an age limit of 40 years as on the last date for receipt of application. Statute 141 deals with the constitution of selection committee. Statute 142 deals with emoluments. Statutes 143 to 148 deal with appointments to the post of Associate Professor and Professor. Statute 149 or Note below that, does not refer to Statute 132. The non-obstante clause with which the Note begins only takes in Statutes 140-149. As long as Statute 132 is not in any way affected by the Note, there cannot be any other method of appointment than by way of direct recruitment. Moreover, it is specifically provided that appointments shall be in accordance with UGC regulations. There is no provision in the UGC regulations which provide for appointment by way of regularization and regularisation can never be a method of appointment. One of the conditions prescribed for age relaxation as well as regularization is two years service as on 31.12.2013 with qualification as prescribed in UGC Regulations. The basis for fixing such a date or even for providing such a Note for regularisation or relaxation of age is not furnished in any of the counter affidavits either by the Government or by the University. The University first Statutes were published on 20.05.2014. The University Act is silent on the question of any regularisation. Statutes can be made only in respect of matters provided in Clause (i) to (xxv) of the Statute 49. None of these clauses relate to regularisation or relaxation. Caluse (xxv) which provides for making statutes only for carrying out the provisions of the Act. Nobody can have a case that regularisation is required for carrying out the provisions in the Act. At any rate, no such provision in the Act is pointed out by any of the petitioner who claim regularisation. It is pertinent to note that even the provisions in the KS&SSR, except with respect to reservation, are made applicable only by way of Statutes, that too, subject to the provisions in Act and Statutes. There cannot be a regularisation in contravention of Statute 132, which prescribes the procedure for appointment of Assistant Professors. Though the 1st Statute is made by the Government and there is no specific provision which provides for the matters on which Government can make the Statutes and what is provided in Section 49 is the matters on which the Management Council can make statutes, it cannot be said that the Government can make statute on any matter including one not enumerated in clause (i) to (xxv) of Section 49. Non-obstante clause in Subsection 2 of Section 52 only provides that first Statute shall be made by the Government. There is no provision conferring power on the Government to make first Statute on any suject. Therefore, it has to be understood that the power conferred on the Government to make the first Statute of the University was intended to be exercised on matters enumerated in Section 49 and such a power is conferred envisaging the absence of a Management Council at the inception of the incorporation of the University.

39. It is settled law that if the rule making power is confined to specified matters, it has to be exercised for those matters and even otherwise it can only be for carrying out the purposes of the Act. In Union of India v. S. Srinivasan : (2012) 7 SCC 683, the validity of Rule 5 of the Appellate Tribunal for Foreign Exchange (Recruitment, Salary and Allowances and Other Conditions of Service of Chairperson and Members) Rules, 2000 and the appointment of a Part time Member as the Chairman were under challenge, on the ground that the provisions in Foreign Exchange Management Act, 1999 did not permit appointment of Part Time members. It was found that the first proviso to Rule 5 introducing the concept of part-time member was contrary to the provision contained in Section 46 of the Act. The second proviso was found introduced only to bring in officers from the Indian Legal Service who are qualified to become District Judges, to be part-time members. The Apex Court found that the provisos were beyond the rule making power. The Apex Court held that the basic test to determine the validity of subordinate legislation is the source of power which is relatable to the rule, after discussing the dicta laid down on judicial review of subordinate legislation, in a series of judgments viz: General Officer Commanding-in-Chief v. Subhash Chandra Yadav: (1988) 2 SCC 351, Delhi Admn. v. Siri Ram : (2000) 5 SCC 451, the Constitution Bench judgment in Sukhdev Singh v. Bhagatram Sardar:(1975) 1 SCC 421, State of Karnataka v. H. Ganesh Kamath: (1983) 2 SCC 402, Kunj Behari Lal Butail v. State of H.P: (2000) 3 SCC 40 , St. Johns Teachers Training Institute v. National Council for Teacher Education: (2003)3 SCC 321, Global Energy Ltd. v. Central Electricity Regulatory Commission: (2009) 15 SCC 570, State of T.N. v. P. Krishnamurthy: 2006) 4 SCC 517, Pratap Chandra Mehta v. State Bar Council of M.P: (2011)9 SCC 573. The same proposition was reiterated in Nova Ads v. Metropolitan Transport Corpn.: (2015) 13 SCC 257, where it was held that it is the Corporation who has the authority to deal with the bus shelters and not MTCL, after considering the power conferred under Section 285 of the Chennai City Municipal Corporation Act, 1919. In Kunhubiharis' case, it was held as follows:

“13. It is very common for the legislature to provide for a general rule-making power to carry out the purpose of the Act. When such a power is given, it may be permissible to find out the object of the enactment and then see if the rules framed satisfy the test of having been so framed as to fall within the scope of such general power confirmed. If the rule-making power is not expressed in such a usual general form then it shall have to be seen if the rules made are protected by the limits prescribed by the parent act. (See: Sant Saran Lal v. Parsuram Sahu, AIR para 19.) From the provisions of the Act we cannot spell out any legislative intent delegating expressly, or by necessary implication, the power to enact any prohibition on transfer of land. xxxxxxx xxxx xxxxx xxxxxx.

14. We are also of the opinion that a delegated power to legislate by making rules “for carrying out the purposes of the Act” is a general delegation without laying down any guidelines, it cannot be so exercised as to bring into existence substantive rights or obligations or disabilities not contemplated by the provisions of the Act itself.”

The Apex Court was considering the constitutional validity of the amendment made to the Rules framed under the Himachal Pradesh Ceiling on Land Holdings Act, 1972 and that of a circular issued thereunder. Section 7 of the Act specifically provided for exemptions under the Act. By way of a proviso to the rule the exempted category was brought within the purview of the rules. The Apex Court found that the State Government cannot bring within the rules, what has been excluded by the Act. Tea estates which are excluded from the provisions in the Act was brought to the purview of the rules by inserting a proviso. It was found that the proviso exceeded rule making power of the State Government because the rule making power is conferred for carrying out the purposes of the Act and cannot be inconsistent with the Act. It was held that even when the delegated power to legislate is for carrying out the purpose of the Act without laying down any guidelines, it cannot be so exercised in order to bring into existence substantive right for obligation or disabilities not contemplated by the provisions or the Act itself. The Apex Court approved the proposition in General Officer Commanding-in-Chief v. Dr Subhash Chandra Yadav: (1988) 2 SCC 351, where it was held that if the rules do not conform to the provisions of the Statute under which it is framed or if it does not come within the scope and purview of the rule-making power of the authority framing the rule, the rule framed would be void. Thus the rules relating to transfer made by the Central Government was held beyond its rule making power on the ground that the rulemaking provision of the Cantonment Act, 1924 conferred power on it only on matters of the tenure of office, salaries and allowances, provident funds, pensions, gratuities, leave of absence and other conditions of service of servants of boards. In the judgment Siriram's case (supra) the Apex Court was considering the constitutional validity of the amendment brought about to the Delhi Land Revenue Rules, 1962 and it was found that the amendment was ultra vires the provisions of the Act. The Apex Court was considering the validity of amendment made to the Land Revenue Rules. As per Section 20 of the Land Revenue Act of Delhi, the Revenue Authority has to maintain a register and Section 40 of the Act provided for the matters which shall be specified. By amendment made to the Rules, the procedure prescribed for maintaining the register was made inapplicable to certain areas which were classified as excluded area, though the rule making power was not conferred for the same. It was held that the rulemaking authority is not enabled to make a rule which travels beyond the scope of the enabling act or which is inconsistent therewith or repugnant thereto.

40. No provisions are seen in the Act which provide for regularization or even age relaxation with reference to the qualified service under the Central or State Government or ICAR. I am of the view that the Note to the extent it relates to the competency of the Vice Chancellor to notify adjunct faculty or honorary faculty of comparable rank, who shall be supernumerary and appointed on honorarium basis for performing specific functions and duties for particular period to perform all duties prescribed for 'Teachers except evaluation of papers/administrative responsibilities are not relevant for the purpose of the case. The petiitoners are only affected by the provision for regularisation and relaxation.

41. In the result it can be safely concluded that the Note below Statute 149 to the extent it relates to regularisation, age relaxation, etc. is beyond the scope of the rulemaking power under Section 49 and also inconsistent with the provisions contained in Section 57 of the Act read with Statutes 132 and 138 of the first Statute.

42. Therefore, such of the petitioners, who have claimed age relaxation as well as regularization, are not entitled to either regularization or age relaxation. It is also pertinent to note that even among those who have claimed age relaxation/regularisation as per the Note, most of them do not have even 2 years service in the University as on 31.12.2013, even for eligibility under the Note. Therefore, all those who were permitted to participate in the selection claiming age relaxation or, in other words, all the petitioners, who crossed the age of 40 years as on 31.07.2014/ the last date fixed for receipt of application and participated in the selection on the basis of the orders passed by the Court and those who were appointed by the University under the guise of those orders but subject to the result of this writ petition, were not entitled to be considered for appointment. Their inclusion in the rank list and appointments shall be cancelled.

43. Though the learned counsel for several of the petitioners argued that there may not be any orders leading to cancellation of their appointment after a long period of their appointment, I am unable to accept this contention because the appointment of the petitioners was made subject to the judgments in various Writ Petitions pending before this Court. Therefore, it is not necessary to challenge such apporders of appointments There is no basis for the contention that the appointments made contrary to the provisions in the Statute shall not be interfered with. Therefore, the judgment of this Court in Ajet Kumar v. Sunil Kumar [ILR 1993 (2) Kerala 765] relied on by Sri Ganesh, cannot be of any help.

44. In the result:

a) W.P(c).No.15112/2014 is allowed.

(b) W.P(C).Nos. 15580/2014, 19908/2014, 19274/2014, 19275/2014, 30862/2014 and 565/2015 are dismissed.

(c) (i) W.P(C).No.14174/2015 is disposed of. It is declared that the appointment of respondents 3 and 4 are illegal;

(ii) there shall be a direction to the University to refer the matter regarding the relevancy of qualification of the 5th respondent for appointment in the discipline of Veterinary Epidemiology and Preventive Medicine, to a committee of 3 academic experts in the field from outside the University including one from ICAR and thereafter take a decision on the issue on the basis of their opinion, after furnishing a copy of the opinion so received to the petitioner and the 5th respondent and affording an opportunity of hearing to both the parties. This shall be done within a period of three months from the date of receipt of a copy of the judgment. The appointment of the 5th respondent would be subject to the decision to be taken as directed. .

(d) W.P(c).No.9353/2015 is allowed. The University shall remove the name of the unqualified hand from the rank list and appoint the next candidate in his/her place, as per the rank list, against the relevant turn within a period of one month from the date of receipt of a copy of this judgment.

(e) W.P(C).No.19030/2015 is allowed. The University shall remove the name of the 2nd respondent from the rank list and remove him from service and appoint the next candidate in his/her place, as per the rank list, within a period of one month from the date of receipt of a copy of this judgment, against the relevant turn and to appoint such candidate within a period of one month from the date of receipt of a copy of this judgment.

(f) The University shall remove the candidates found ineligible in this judgment, from the rank list for the respective discipline and from the post and shall appoint the next candidate in the rank list in his/her place in accordance with the open/reservation turn within a period of one month from the date of receipt of a copy of the judgment.
OR

Already A Member?

Also