Purposeful dishonesty towards the University of Kerala by the then Standing Counsel in the case of Assistant Librarian Gr.I for relaxation of UGC qualifications

 

Item No.32.21 Judgment dated 10.04.2015 of the Hon'ble High Court in WP(C)No.30784/12 filed by Harikumar. S. and in WP(C) No. 8629/13 filed by Majeed. H. & others – Consideration of - reg.

 (Legal Sn.) 

Sri. Harikumar. S, Assistant Librarian Grade I, Sri. Majeed. H, Assistant Librarian Gr.I and others filed WP(C) Numbers 30784/12 & 8629/13 before the Hon'ble High Court of Kerala for a direction to grant them UGC scale of pay in relaxation to NET/ Ph.D, since they are M.Phil holders. They also claim that the University Grants Commission has granted exemption to M.Phil holders. In WP(C) No.30784/12 filed by Harikumar. S, and in WP(C) No. 8629/13 filed by Majeed. H. & others, the University of Kerala was 1st respondent and Government of Kerala was additional 4th respondent. In the judgment dated 10th April 2015 the Hon'ble high Court has directed: 1. The additional 4th respondent is directed to issue formal orders permitting respondents 1 and 2 to give UGC scale of pay and other benefits to the petitioners in both the writ petitions, who are M.Phil holders in Library science, without insisting for NET qualification. 2. Formal orders to this effect shall be issued by the additional 4th respondent within a period of one month from the date of receipt of a copy of this judgment. 3. On the basis of the formal orders issued by the additional 4th respondent, respondents 1 and 2 shall grant UGC scale of pay to the petitioners in both the writ petitions without much delay thereafter. In both the Writ Petitions, UGC was impleaded as one of the respondents. In the Judgment the first direction was to the 4th additional respondent i.e. State of Kerala represented by Secretary to Government. The Government in compliance with the Judgment of the Hon'ble High Court in WP(C)No.30784/12 filed by Harikumar S and in WP(C) No.8629/13 filed by Majeed H issued G.O. (Rt) No.2875/2015/ H.Edn dated 09.11.2015 accorded sanction to the University of Kerala for granting UGC scale of pay and other benefits to the petitioners who are M.Phil holders, without insisting for NET qualifications. The UGC Regulations 2010 clause 4.5.0 to 4.5.3 (iii) envisages minimum qualifications for direct recruitment to the post of Librarian, Deputy Librarian, University Assistant Librarian and College Librarian. Moreover the M.Phil. holders are not exempted from qualifying the NET. It may be noted that all the library staff in the university except the University Librarian were appointed in the cadre of Library Assistants and they have been promoted to the post of Assistant Librarian and Deputy Librarian. But as per the Government Order it is stated that UGC on an earlier enquiry on the previous regulations issued in 2006, clarified that, exemption may be given to M.Phil holders from NET Qualification, vide letter issued on 22.09.2008. It may be pointed out that any deviation to the regulation ought to be in the form of amended regulation and the letter from the UGC in this regard shall not warrant any action from the part of the University. It is to be noted that the exemption not granted in the regulation cannot be granted on the basis of the letter from the UGC regarding 2006 regulations. It is also pertinent to note that UGC regulations 2010 does not state any relaxation for M.Phil holders who haven't acquired NET qualification. Since the UGC regulations 2010 has been adopted by the University any relaxation to the prescribed qualifications shall run contradictory to the regulations. This has been intimated to the Government vide letter dated 26.06.2015 & 09.11.2015. Since the Government has issued G.O.(Rt)No.2875/2015/HEdn, dated 09.11.2015, in compliance with the Judgment of the High Court in WP(C)No.30784/ 12 & 8629/13, the University has to take further action in this regard. The said Government Order was received in the University on 19.11.2015.After receiving the communication from the Government the file was put up by the Ad AV Section on 23.11.2015 and the Vice Chancellor has ordered to seek the opinion of Standing Counsel regarding the filing of appeal. As the implementation of the Judgment will run contrary to clause 4.5.0 to 4.5.3 of the UGC Regulation 2010 the opinion from the Adv.Paul Jacob, then Standing Counsel was sought as to whether it is feasible for the University to prefer an appeal against the Judgment of the Hon'ble High Court of Kerala. The Standing Counsel vide Lr.No.PJ/SC/KU/114/ 15, dated 19.12.2015 has opined to prefer an appeal against the aforementioned Judgment though it was belated and the delay occurred will have to be condoned. Accordingly vide letter dated 19.01.2016 the Standing Counsel was instructed to do the needful for preferring the appeal as opined by him and the case bundle in respect of WPC No.30784/ 2012 filed by Harikumar was handed over to his office by hand on 31.01.2016. Adv.Paul Jacob vide e-mail dated 06.02.2016, again requested for transmitting the case bundle for which reply was given to him on the same day via email that the file was already been handed over on 31.01.2016 and he acknowledged the same vide email on the same day. On 02.03.2016 he had communicated via email to send file in WP(C) No.30784/2012 filed by Harikumar. S., as the connected matter in WP(C) No.8629/2013 is being challenged in appeal. The Legal section has informed the Standing Counsel that the case bundles were already forwarded to his office. Since the Standing Counsel was requested vide letters and over telephone to file appeal, the University was in the belief that the Standing Counsel has filed the Writ Appeal. As the copy of the Writ Appeal was not received, a letter was sent on 27.06.2016 requesting to forward the copy of the appeal if it is preferred. No reply was received from the office of the former Standing Counsel. Later when the present Standing Counsel, Adv.Thomas Abraham assumed office on 01.09.2016 and when the transferred list of cases were verified, it was noticed that no files regarding the appeal filed against the impugned Judgment dated 10.04.2015 was transferred. Therefore the former Standing Counsel was addressed to ascertain whether the appeal was filed. He has replied that the same should be in the bundle of papers that were handed over at the time of transition to the new Standing Counsel. It was understood that though the former Standing Counsel was instructed to file Appeal and the relevant files/documents were handed over to him (by hand), the Appeal was not filed by him. The former Standing Counsel via e-mail was requested to hand over the case bundle in respect of WP(C)No.30784/12 and 8629/13. But, in reply to the email, he has informed that he has transferred all papers, the same should be in the bundle of papers and communications that were handed over at the time of transition to the new Standing Counsel and he do not have any papers or files relating to pending matters or matters that are to be filed/appealed with him. Hence, vide letters dated 26.11.2016 (Reminders dated 17.12.2016 & 24.03.2017), the present Standing Counsel was requested to advise on further course of action to be taken in these two Writ Petitions in which Writ Appeal was not filed. The Standing Counsel vide letter dated 10.06.2017 has opined that since the delay is as on today is more than two years, if the University can afford to take the risk of facing the adverse consequences including the order of heavy cost, Appeal can be preferred pointing out the aspects mentioned by the University in the earlier communications. However, if such a decision is taken the same should be a well considered one taken by the appropriate Statutory authorities of the University. He has also opined that the conflict with UGC Regulation has been considered in the Judgment. The burden to issue formal orders as per the findings in the Judgment is required to be done by the additional 4th Respondent, ie., State of Kerala. The State of Kerala as per the order dated 09.11.2015 has complied with the directions in the Judgment. As such the role of the University is confined to grant UGC scale of pay to the petitioners in both the Writ Petitions. Thus apart from the hurdle of getting condoned the delay in filing Appeal, the question of challenging the Government Order dated 09.11.2015 also arises. Hence, any attempt to prefer an Appeal is likely to invite adverse observation by the Hon'ble High Court of Kerala. In the above circumstances, he had opined that the compliance of the direction of the Judgment will be the ideal stand that can be taken now. The opinion of the Standing Counsel dated 10.06.2017 along with the Note on the matter was placed before the Legal Monitoring Committee held on 17.10.2017 for consideration and recommendation on the further course of action to be taken and the Committee discussed the matter in detail and has found that even though the previous Standing Counsel was entrusted to prefer an Appeal against the Judgment in question, it was not filed by him. Considering the opinion rendered by the present Standing Counsel, the Committee recommended to prefer an Appeal. The Minutes of the Legal Monitoring Committee held on 17.10.2017 was approved by the Vice-Chancellor subject to the reporting of the Syndicate. The Minutes of the Legal Monitoring Committee held on 17.10.2017 was placed before the Syndicate held on 06.12.2017 and the Syndicate resolved that the action taken by the Vice-Chancellor in having approved the recommendation of the Legal Monitoring Committee 17.10.2017, be noted and further resolved that the lapse occurred from the part of then Standing Counsel be viewed very seriously. Sri.K.S.Gopakumar, Adv.Johnson Abraham, Members of Syndicate expressed their dissent. The Standing Counsel was addressed vide letter dated 21.10.2017 to do the needful for preferring the Appeal as per the recommendation of the Legal Monitoring Committee held on 17.10.2017. In reply to this, vide letter dated 24.10.2017, he informed that even if Appeal is meritorious and it has every likelihood of getting a favourable order, equally or more important is the credibility of the averments in the Affidavit accompanying the petition for condonation of delay. In reply to this, a letter dated 28.10.2017 & a reminder on 15.11.2017 were sent to the Standing Counsel detailing the reasons of delay for filing the Writ Appeals and it was also informed that the former Standing Counsel has informed that the files in respect to these Writ Petitions were already forwarded to his office. In reply to this, Adv.Thomas Abraham, Standing Counsel vide letter dated 26.11.2017 [copy enclosed] has explicitly mentioned the consequences to be faced by the officials of the University that may occur if the University file a Writ Appeal against the Common Judgment dated 10.04.2015 after an inordinate delay of more than two and half years. When the legal opinions from the Standing Counsel was submitted before the Vice-Chancellor for orders whether the University should file Writ Appeals, even though there is a high risk to the University to file Appeals after a delay of two and a half years, as opined by the Standing Counsel in his letters dated 10.06.2017, 24.10.2017 and 26.11.2017 along with a draft Affidavit to condone the delay, the ViceChancellor has ordered to place the matter before the Syndicate for re-examining the resolution of the Syndicate held on 06.12.2017 vide Item No.31.27.01, based on the recommendations of the Legal Monitoring Committee held on 17.10.2017 to file the Writ Appeal along with the legal opinions. As ordered by the Vice-Chancellor, the matter is placed before the Syndicate for consideration. 

Resolution of the Syndicate 

RESOLVED to inform the Registrar, High Court of Kerala regarding the purposeful dishonesty towards the University by the then Standing Counsel in the case entrusted with him. 

FURTHER RESOLVED to prepare a draft letter to the Registrar, High Court of Kerala and to place it before the next Syndicate. The Chair opined that the Syndicate shall consider seeking the remarks of the former Standing Counsel before proceeding further.