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Sugunan Vs. University of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1985)ILLJ376Ker
AppellantSugunan
RespondentUniversity of Kerala and ors.
Cases ReferredUniversity of Mysore v. Govinda Rao
Excerpt:
.....see that for the post of lecturer, the same regulations prescribe 'two years' approved research or teaching experience' as minimum qualification, suggesting thereby that research experience is as good as teaching experience for that post. it is even possible that the academic council of the university which framed the regulations in question was aware of the nature of such fellowships when it thought of referring only to 'experience of teaching',and not to 'experience as a teacher'.12. if it is right to believe, though not to affirm, that post-doctoral studies contain elements of teaching experience which are as good as experience gathered by teachers, the next question will be whether any successful attempt has been made by the petitioner to attribute want of bona fides to the selecting..........in 1971 and ph. d. in 1976. he had commenced service as a lecturer only from november, 1978. if teaching experience were to be equated to the period of service rendered as a teacher, he had not obviously completed the required period before the crucial date. according to the petitioner, 'experience of teaching' could only mean experience as a competently appointed teacher, and as the 4th respondent's qualification was deficient in this respect, he was ineligible to be considered or selected.3. the stand of the university is that the 4th respondent had acquired experience in teaching for about 3 years while undergoing advanced studies for senior research fellowship under a programme of the u.g.c., and that this could also be added to his experience as a lecturer for the purposes of the.....
Judgment:

M.P. Menon, J.

1. By Ext. P 1 notification dated 1st March, 1982 the Kerala University invited applications from qualified candidates for appointment to the post of Reader in Chemistry. The petitioner and the 4th respondent applied; and the Selection Committee consisting of the Vice Chancellor, a Syndicate member, two experts from outside and the Professor of Chemistry (in the Kerala University) selected the 4th respondent for the post. The petitioner challenges this selection on the ground that the 4th respondent was not sufficiently qualified for being considered, either at the time the notification was issued or at the time the selection was made.

2. Under the Regulations framed by the Academic Council of the University, a person could be appointed as Reader in Science only if he possesses the following qualificatioas;-

(i) A First Class Master's Degree or a Second Class Master's Degree with not less than 50% marks of an Indian University or an equivalent qualification of a foreign University in the Subject concerned;

(ii) Either a research degree of a Doctorate standard or published work of a high standard;

(iii) About five years' experience of teaching at a University or College and some experience of guiding research.

The petitioner had taken his M. Sc. in 1973 and Ph. D. in 1977; and from July, 1977 he war working as Lecturer in Chemistry in the University of Cochin. He had also earlier worked as Junior Lecturer in some colleges for about six months. Thus, he had admittedly 'five years' experience of teaching'. The 4th respondent had taken his M. Sc. in 1971 and Ph. D. in 1976. He had commenced service as a Lecturer only from November, 1978. If teaching experience were to be equated to the period of service rendered as a teacher, he had not obviously completed the required period before the crucial date. According to the petitioner, 'experience of teaching' could only mean experience as a competently appointed teacher, and as the 4th respondent's qualification was deficient in this respect, he was ineligible to be considered or selected.

3. The stand of the University is that the 4th respondent had acquired experience in teaching for about 3 years while undergoing advanced studies for Senior Research Fellowship under a programme of the U.G.C., and that this could also be added to his experience as a Lecturer for the purposes of the Regulations. In a sense, therefore, the question is whether mere participation in teaching work as part of the programme for post-doctoral research could be regarded as 'experience of teaching at a University or College'.

4. Counsel for the petitioner relies on the decision reported in Balaraman v. Chancellor 1979 K.L.T. 825. Section 17 of the Kerala University Act, 1974 provided for the constitution of the Senate so as to include elected representatives of principals, teachers, local authorities, trade unions, nonteaching staff and other distinct classes of people. Section 18(3) provided that such members of the Senate were to hold office until its 'next reconstitution'. But the first proviso to the sub-section had also stipulated as follows:

Provided that no member nominated or elected in his capacity as a member of a particular body or as the holder of a particular office shall hold office for a longer period than three months after he has ceased to be such member or holder of such office, unless in the meanwhile he again becomes a member of that electorate.

Balaraman was a teacher of a private college and he was elected to the Senate in 1975 from the constituency of private teachers. From 1st September, 1977 to 28th August, 1978, he was deputed to qualify himself as a fellow in M. Phil., and his contention was that despite the deputation as a student for M. Phil., he was eligible to continue as a Senate member, representing private teachers. This contention was rejected by the Court on the ground that taking into account the antithesis between 'teacher' and 'student' as defined in Section 2 of the Act, the petitioner had ceased to hold office as a teacher for more than three months by reason of the deputation. The decision turned on the definition clauses and the language of the proviso to Section 18(3); it was not concerned with the meaning of 'teaching experience' within the meaning of the Regulations in question.

5. K.P.P. Pillai v. A.V. Mathew 1980 Lab. I.C. 443 seems to be at least more on point. The controversy there was about selection to the post of Professor in Electrical Engineering on the basis of qualifications fixed by Government Orders. The prescription was that the candidate should have a post-graduate degree and 8 years' teaching experience in Engineering Colleges. It was contended that the period spent for studies for getting Ph. D. from Canada could be regarded as teaching experience, but the contention was rejected, 'in the absence of any definite and positive pointer' to that effect.

6. In O.P. No. 880 of 1982 the question we are here directly concerned with had arisen. The application of the petitioner therein for the post of Reader in Biochemistry had been turned down by the Kerala University for the reason that her teaching experience was less than five years. It was contended on her behelf that even before commencing service as Lecturer, she had been participating in teaching programmes. Bhat, J. rejected the contention in the following terms:

Petitioner relies on Exts. P 1 to P 3 which are three identical certificates issued by the Head of the Department of Bio-Chemistry, wherein he states that the petitioner has been participating in the teaching programme of the department. It is difficult to accept that 'participation in the teaching programme of the Department' by a person, who is not competent to teach and who has not been appointed to a teaching post can be treated as 'teaching experience' for the purpose of appointment to the post of Reader. It may be, as clarified in the counter-affidavit of the first respondent, that while the petitioner was a Research Scholar, she had been allowed to handle classes for a few hours. That cannot be equated with 'teaching experience' expected from an eligible candidate for the post of Reader. I do not find any illegality or error in the rejection by the University of the petitioner's application.

But Paripooman, J. before whom the present writ, petition first came up for hearing felt that the question required re-examination by a Division Bench. It was observed:

When Ext. P 1 has only used the words about 5 years experience of teaching at a University or an affiliated college, could it be restricted to the experience of teaching at a University or affiliated college as a duly appointed teacher? The words in Ext. P 1 are clear. They do not insist or contemplate that the teaching experience should be one acquired while holding the post of a teacher. 'Teaching experience' alone matters and it is common ground that such experience can be acquired even without being appointed to the teaching post. Since the matter is not free from difficulty I consider that this is a fit case to be heard and decided by a Division Bench....

It has also to be stated that the University itself was in favour of reconsidering the views expressed in OP. No. 880 of 1982.

7. One of the questions raised in M.C. Gupta v. A.K. Gupta (1979)2 S.C.C. 339, was whether participation in teaching work during the tenure of post-doctoral fellowship could be regarded as teaching/research experience as Reader/Asst. Professor. One Dr. Tandon was a post-doctoral teaching fellow for one year in the Department of Medicine, State University of New York at Buffalo; and it was contended that that was not teaching experience as Reader or Asst. Professor. The Supreme Court held, on the strength of a certificate produced, that the teaching fellowship period could be equated to teaching experience as an Asst. Professor. And the Court went on to add: -

It is not very clear what is the equivalent of a Fellow in teaching hospitals in India but Dr. Tandon has also claimed teaching experience from 5th April, 1968 to 4th July, 1969, being posted as post-doctoral research fellow, Department of Medicine in G.S. V.M. Medical College, Kanpur. In this connection, Annexure P 2, produced by none other than some of the contesting respondents shows that during the tenure of Fellowship. Dr. Tandon was expected to take part in the teaching and research activities of the college though he would not be treated as part of the regular establishment of the college. Now, if the certificate produced by Dr. Tandon shows that fellowship included teaching work, it would be unwise to doubt it. Even if 50% of the time spent in these two places is given credit, Dr. Tandon had certainly more than five years' teaching experience. The Court is not competent to work out figures with mathematical precision. It can broadly examine the question whether the requirement is satisfied or not. Therefore, he had the requisite teaching/research experience and the Commission was fully justified in treating Dr. Tandon as having requisite teaching/research experience.

8. The question in Asim Kumar v. Union of India (1983)1 S.C.C. 345 was whether a person substantively appointed as Radiologist in a teaching hospital and associated with teaching at the undergraduate and post-graduate levels, could be denied promotion to the cadre of Associate Professor for the reason that the teaching experience was one gathered while functioning as ex-officio teacher and not as a regular teacher. The High Court had taken the view that the fortuitous circumstance that a doctor was permitted to take up teaching assignments, in the course of his duties, was insufficient to regard that experience as teaching experience for the purposes of the Rules. The Supreme Court differed, and held: -

It is necessary to emphasise that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex officio) shall not count towards the requisite teaching experience. There is no provision made in the Rules that the teaching experience must be gained on a regular appointment. There is hardly any difference so far as teaching experience is concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the ex officio designation.

9. Judicial approach, and consequently judicial evaluation of the content of 'teaching experience', have thus been different; and the difference could probably be attributed to the peculiar facts of each case, or the executive or statutory prescriptions in each. In Pillai 's case (supra), the Court insisted on a definite and positive pointer, but in Asim Kumar's case (supra) the emphasis was on the absence of any such pointer in the Rules. While a distinction was attempted in one case between teaching fellowships and other kinds of fellowships, it was also hinted that in respect of post-doctoral studies in general, some weight could be given to the teaching assignments involved. If full weight cannot be given, it is only a difference of degree to say that no weight at all could be given.

10. It seems to us that a less tortuous course will be to hold that except in cases where a clear violation of the norms, statutory or otherwise, is discernible, the Courts will not interfere with the assessment made by expert academic bodies, if such assessment is bona fide. Dealing with a similar situation a Constitution Bench of the Supreme Court observed, in University of Mysore v. Govinda Rao : [1964]4SCR575 :

Boards of Appointments are nominated by the Universities and when recommendations made by them and the appointments following on them, are challenged before Courts, normally the Courts should be slow to interfere with the opinions expressed by the experts. There is no allegation about mala fides against the experts who constituted the present Board; and so, we think, it would normally be wise and safe for the Courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the Courts generally can be. The criticism made by the High Court against the report made by the Board seems to suggest that the High Court thought that the Board was in the position of an executive authority, issuing an executive fiat, or was acting like a quasi-judicial tribunal, deciding disputes referred to it for its decision. In dealing with complaints made by citizens in regard to appointments made by academic bodies, like the Universities, such an approach would not be reasonable or appropriate. In fact, in issuing the writ, the High Court has made certain observations which show that the High Court applied tests which would legitimately be applied in the case of writs of certiurari. In the judgment, it has been observed that the error in this case is undoubtedly a manifest error. That is a consideration which is more germane and relevant in a procedure for a writ of certiorari. What the High Court should have considered is whether the appointment made by the Chancellor had contravened any statutory or binding rule or ordinance, and in doing so, the High Court should have shown due regard to the opinion expressed by the Board and its recommendations on which the Chancellor has acted.

In M. C. Gupta's case (supra) also, the need for such a liberal approach was reiterated: -

When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing teaching/research experience in technical subjects, the Court should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the Courts to leave the decision, of academic matters to experts who are more familiar with the problems they face than the Courts generally can be. Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it in making the selection and recommending the selectees for appointment, the Court in exercise of extraordinary jurisdiction to enforce rule of law, may interfere in a writ petition under Article 226. Even then the Court, while enforcing the rule of law, should give due weight to the opinions expressed by the experts and also show due regard to its recommendations on which the State Government acted. If the recommendations made by the body of experts, keeping in view the relevant rules and regulations, manifest due consideration of all the relevant factors, the Court should be very slow to interfere with such recommendations.

This is not to say that judicial scrutiny must stop at the doors of academic autonomy even when the Universities blow hot and cold, giving one interpretation to its Regulations in one instance and conjuring up another for the next. Arbitrariness and opportunism apart, if the language of the Regulation is opaque as to admit of two possible constructions, the mere circumstance that two different expert bodies have adopted different approaches to it may not, by itself, cloud the Court's vision. It will be improper and imprudent to look at such occurrences as an eager St. George looking for a demon.

11. The Regulation here speaks of 'five years' experience of teaching'. To construe it as experience of teaching ''as a duly appointed teacher' will be to add words which are really not there, though at the same time, considering that what is involved is a teaching post, it will not be unreasonable to suggest that in the context, importance should be attached to experience as a teacher, and not as a student. It is also interesting to see that for the post of Lecturer, the same Regulations prescribe 'two years' approved research or teaching experience' as minimum qualification, suggesting thereby that research experience is as good as teaching experience for that post. Counsel for the petitioner pointed out at the hearing that under the rules or regulations of the Cochin University, two years' research experience is equated to one year's teaching experience, and that in the absence of such express provisions in the Kerala University, no such equation at all could be thought of. This is to forget what the Supreme Court said in Asim Kumar's case, and also to ignore the prescription that for the post of Lecturer, research and teaching experience are considered as equal. Rule 4(c) of the Rules for award of Senior Research Fellowships (Ext. R 2) reads:

(c) The fellow shall not accept or hold any appointment, paid or otherwise or receive any emoluments, salary, stipend etc., from any other source during the tenure of the award.

Senior Research Fellows arc expected to move to a college or a University so that their service could be utilised for strengthening the teaching programme and should devote not less than six hours a week for this purpose.

Post-doctoral research thus involves teaching work for not less than six hours a week in a college or university; and if it is intended to strengthen the teaching programmes of those institutions, how can any one say that the quality of such teaching is different from the quality of teaching undertaken by persons regularly appointed as teachers? It is even possible that the Academic Council of the University which framed the Regulations in question was aware of the nature of such fellowships when it thought of referring only to 'experience of teaching', and not to 'experience as a teacher'.

12. If it is right to believe, though not to affirm, that post-doctoral studies contain elements of teaching experience which are as good as experience gathered by teachers, the next question will be whether any successful attempt has been made by the petitioner to attribute want of bona fides to the selecting body or to the University. The only averment in the writ petition is that there might have been some kind of political influence; and counsel himself conceded that having due regard to the composition of the selection body, no Court would ordinarily be inclined to act on such an averment. It was suggested that the composition of the body was defective in as much as one of the members was Dr. Anantharaman, Professor of Chemistry and not the Head of the Department of Chemistry, as required by Rule 5, Chapter VII of the First Statute. The University has explained in its counter-affidavit that the Head of the Department was urgently called away to New Delhi on the date of the interview and that the Vice Chancellor had invited Dr. Anantharaman, formerly Head of the Department, to take his place. This in itself is no vitiating circumstance, particularly in view of the fact that the petitioner had raised no objection and had chosen to get a favourable verdict from the committee as constituted.

13. This is therefore not a fit case for interference under Article 226, and the Original Petition is dismissed, but without any order as to costs. The University will however do well to note that such frequent litigations could be avoided by properly clarifying its Regulations and also appropriately indicating whether the crucial date for the purposes of the qualifications would be the date of the notification inviting applications, or the last date fixed for their receipt, or even the date of the interview.


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