Saturday, September 3, 2022
Friday, September 2, 2022
B.Ed. Not "Bachelor Degree" Of Graduation: Gujarat High Court
2.9.2022
The Gujarat High Court has held that a B.Ed. Degree, i.e., Bachelor of Education, is not a Bachelor Degree of graduation since the said course, like 3-yrs-LLB course, can be perused only after one has graduated in any of the branches of arts or science.
In the same breath, the Court held that persons possessing a B.Ed. degree are over-qualified for positions having minimum prescribed qualification of Graduation and thus, rejection of their candidature for having more qualifications cannot be held to be bad in law.
The Court while relying on Chief Manger, Punjab National Bank & Anr. v. Anit Kumar Das thus concluded that the Petitioner-candidates were rightly not considered for the posts of Assistant Security Inspector, Traffic Inspector and Store Keeper, since they were over-qualified.
"Petitioners are having higher qualification than the minimum prescribed qualification as per the advertisement and there is no provision or rule which prescribes that the higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post."
Two of the Petitioners were holding a B.Ed. degree but this was deemed not equivalent to the Bachelor's degree required for the posts. Another Petitioner's candidature was rejected basis wrong calculation of CGPA. Finally, one of the Petitioner was rejected on the ground that he was having a higher qualification than the minimum qualification.
The Petitioners submitted that the degree of B.Ed. was equivalent to the Graduate degree and it could not be termed as a Post Graduate Degree. They also submitted that the words 'Graduate' and 'Bachelor' were synonymous as per dictionaries which implied a person with a first University degree. Therefore, they were eligible candidates for the post.
However, this was opposed by the Respondent Corporation by stating that B.Ed. is not a Graduation course and it is offered for those interested in teaching only after achieving BA or BSc. The Respondent also insisted that it is for the employer to determine the relevancy and suitability of the qualifications of the post, keeping in view the institution and its requirements.
Affirming that for B.Ed. one has to possess a Bachelors in Arts or Science, the High Court explained that it cannot be considered a Bachelor Degree of Graduation as such. In also noted that in Anit Kumar Das, the Apex Court had not considered a person possessing higher qualification as eligible for the post of peon. In this light, Justice Karia reiterated:
"Exigencies of administration, it is trite law, fall within the domain of administrative decision making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily."
Case No.: C/SCA/16694/2017
Case Title: BRIJESHKUMAR DASHARATHLAL PATEL v/s CHAIRMAN & 31 others
Maternity Act' Doesn't Provide For Time Difference Between 1st & 2nd Child For Grant Of Maternity Benefits: Allahabad HC Grants Relief To Woman
With
this, the Court granted relief to an Inter College lecturer whose application
for maternity leave had been rejected by placing reliance on Rule 153(1) of
the Financial Handbook by contending that the same contains a restriction
that the second maternity leave cannot be granted where there is a difference
of less than two years between the end of the first maternity leave and grant
of second maternity leave.
The
case in brief
Essentially,
her maternity leave application had been rejected on the ground that she had
previously availed maternity leave which ended on May 18, 2018, which was a
period less than 2 years, and hence, she was not entitled to the maternity
leave as per Rule 153(1) of the Financial Handbook.
Before
the Court, she argued that she had applied for maternity leave for a period of
174 days from November 26, 2017, to May 18, 2018, which was duly sanctioned and
the petitioner gave birth to a baby boy on January 29, 2018, but unfortunately,
the newborn child passed away due to cardiorespiratory just a day after his
birth.
The
petitioner again conceived for the second time and applied for maternity leave
for a period of 24 weeks from November 18, 2018 to May 16, 2019, which had been
rejected by means of the impugned order.
It
was argued by her counsel that Rule 153(1) of the Financial Handbook runs
contrary to the mandatory provisions of the 1961 Act, which doesn't stipulate
any mandatory lapse of time between the first and second child so as to become
eligible for the grant of maternity benefit.
In
view of this, considering the provisions of Section 27 of the 1961 Act, the
Counsel contended, that Rule 153(1) of the Financial Handbook Vol. II to IX
would have to be read down and it is the provisions of the 1961 Act that would
prevail.
On
the other hand, the Counsel for the state argued that the impugned order is in
conformity with the provisions of Rule 153(1) of the Financial Handbook Volume
II to IV where a restriction has been placed for grant of maternity benefits
prior to 2 years having lapsed from the date of expiry of the last maternity
leave granted under the Rule.
Court's
observations
At
the outset, the bench of Justice Alok Mathur observed that a perusal of
the provisions of the 1961 Act indicate that a woman would be entitled to give
notice in writing for grant of maternity benefit, and on receipt of the notice,
the employer shall permit such a woman to absent herself from the
establishment during the period for which she receives the maternity benefit.
"The 1961 Act does not
contain any such stipulation of the time difference between the grant of
maternity benefit for the first and second child as stipulated in Rule 153 (1)
of the Financial Handbook," the Court observed as it stressed that the
1961 Act does not contain any such stipulation.
Accordingly,
the Court held that the respondents patently erred in placing reliance on Rule
153(1) of the Financial Handbook in rejecting the application of the petitioner
for grant of maternity leave.
"The Maternity Benefit Act
1961 has been enacted by the Parliament on a subject which finds mention in
entry 24 of list III, and it was totally within its competence to make such an
enactment. Even if the state legislature were to make such a law, overriding
the provisions contained in the Maternity Benefit Act then the said act would
be reserved for accent of the President and would be enforceable only after
obtaining such an accent as provided in article 254(2) of the Constitution of
India," the Court remarked.
Consequently,
the Court held that once the provisions of the Maternity Benefit Act, 1961 has
been adopted by the State of U.P. then the said Act of 1961 would apply with
full force irrespective of the provisions contained in the Financial Handbook
which is merely an executive instruction and would, in any case, be subsidiary
to the legislation made by the Parliament.
"The provision of Financial
Handbook are preConstitutional executive instructions and would be subsidiary
to the Act of Parliament and in case of any inconsistency, the statutoy
enactment framed by the Parliament would prevail and hence the provisions of
Maternity Benefits Act, 1961 would prevail over the provisions of Financial
Handbook and, therefore, provision of Rule 153 (1) of the Financial Handbook
Volume I to IV are read down with regard to admissibility of
leave to a woman with regard to second pregnancy which would be governed by
Maternity Benefits Act, 1961 and not Rule 153 (1) of the Financila Handbook
Volume II to IV," the Court held as it the writ petition is allowed
and the respondents were directed to grant maternity benefit to the petitioner
in terms of the Maternity Benefit Act 1961.
Case
title - Satakshi Mishra v. State Of U.P.
Thru. Prin. Secy. Secondary Edu. Dept. Lucknow And 4 Others [WRIT - A No. -
5114 of 2022]
Case
Citation: 2022 LiveLaw (AB) 410
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Thursday, September 1, 2022
Experience Cannot Substitute Duration Of Service Required By UGC Norms: Kerala High Court
Experience Cannot Substitute Duration Of Service Required By UGC Norms: Kerala High Court
31 Aug 2022 7:18 AM
The Kerala High Court on Tuesday observed that when the UGC norms mandate 8 years of continuous service in the post of 'Reader' in order to be eligible for promotion as 'Professor', then the experience gained by a person in a post which had been gained by him pursuant to an appointment which had hitherto been declared as 'illegal' by the Court would not be sufficient to act as substitute in order to make the person eligible.
The Division Bench comprising of Justice P.B. Suresh Kumar and Justice Mary Joseph, in the review petition before it, observed that when there are norms stipulating the qualifications which have been laid down by the UGC and which are unambiguous, the Court could not substitute the same with its own interpretation to benefit a person.
"Experience cannot substitute duration of service prescribed by the norms", it was observed.
The Revision Petitioner in the instant case, was initially appointed as Junior Lecturer in Hindi at N.S.S. Hindu College, Mattannur on 03.08.1970, whereafter he was promoted as Lecturer, and later, as Selection Grade Lecturer(Senior Scale). It is the petitioner's case that he joined the instant University on 01.11.1994, and was relieved from there after 2 years and 11 months. Thereafter, he rejoined the University on 17.11.1997 as Reader and relieved on 30.04.2005 since there had been a challenge against all the appointments made by the then Vice Chancellor of the University, which had been upheld by another Division Bench of the Kerala High Court.
It was contended by the Petitioner that since he had a total service period of 34 years, while the UGC Norms mandated only 8 years of service for a Reader to be promoted as Professor, hence, the petitioner was also entitled to his promotion. He further cited the Government of Kerala Order dated 19.05.1999, whereby the government had accorded sanction for treating the period of service of all teachers who had been thrown out of service of the University pursuant to the Division Bench decision, as valid. It was on this basis that the Petitioner had filed the Writ Petition in 2008.
The respondents to the Writ Petition before the Single Judge, on the other hand, contended that the petitioner had joined service as Professor in Hindi on November 1st, 1994, but the said appointment had been set aside by the Division Bench, and thereupon, the period of service from November 1st, 1994 till 30th September 1997 was treated as 'service on deputation' and not regular service. Taken this way, it was contended that the petitioner had been in regular service as Reader for only 7 years, 5 months and 15 days, and hence, was ineligible for the promotion. When the University had sought Government clarification, the latter also held that the petitioner was ineligible.
The Single Judge had regarded the petitioner's experience as a crucial factor in counting the number of years and allowed the writ on observing that the petitioner had 2.5 years of experience as Professor, which decision was set aside by the Division Bench in the Writ Appeal.
In the instant review petition, it was contended by the counsel for the revision petitioner, Advocate Madhavankutty, that the petitioner had rendered service for 8 years and 10 months as as Selection Grade Lecturer at N.S.S. College, and relied upon a circular issued on 13th March 2003, whereby it had been stipulated that past service rendered as Associate Professor/Reader in any other recognized could be reckoned for promotion to post of Professor. It was argued that although the same, and a clarification Circular in this regard issued on 27th May 2003 had been withdrawn by the Government vide Circular dated 23rd September 2003, it could only be stated to have prospective effect.
In the instant review petition, the Court could not find favour with the argument raised by the petitioner, and found that the Division Bench had already dealt with the arguments raised, and had accordingly, found that the
"... period of service rendered by the petitioner in view of the illegal appointment gained colour as 'service on deputation' rather than regular service".
In this regard, finding that the petitioner did not have the requisite eight continuous years of service, the review petition was dismissed.
The respondents in the instant case were represented by the Standing Counsel for Sree Sankaracharya University of Sanskrit, Dinesh Mathew J. Muricken, and Senior Government Pleader, V. Binitha.
Case Title: Dr. C.S. Rajan v. The Registrar, Sree Sankaracharya University of Sanskrit & Ors.
Citation: 2022 LiveLaw (Ker) 466
NMC Direction For Govt Fee In 50% Seats Won't Apply To Private Medical Colleges & Deemed Universities In Kerala : High Court
NMC Direction For Govt Fee In 50% Seats Won't Apply To Private Medical Colleges & Deemed Universities In Kerala : High Court
31 Aug 2022 12:51 AM
The Kerala High Court recently held that the direction issued by the National Medical Commission(NMC) that the fee in 50% of seats in Private Medical Colleges and Deemed Universities should be at par with the fees in Government medical colleges will not apply in the State of Kerala.
The Court held so taking note of the fact that there is no concept of "Government Quota" or "Management Quota" in private medical colleges in Kerala and that the fees of private medical colleges are fixed by a statutory body, Admission and Fee Regulatory Committee(AFRC).
The Court noted that, in Kerala, after the coming into force of the Kerala Medical Education Act 2017, there is no longer a 'Government Quota' and 'Management Quota', as far as students in the private Medical Colleges are concerned; and that all the students to such institutions are allotted by the Commissioner for Entrance Examinations of the Government of Kerala, through a common Entrance Examination and Counselling process.
The NMC's Office Memorandum, which has pan-India application, may be relevant for other States and or Union Territories where quotas for "Government" and the "Management" are still in vogue.
The bench of Justice Devan Ramachandran also noted that the implementation of the stipulation in the NMC Office Memorandum(OM) in Kerala could lead to a situation of cross-subsidisation of seats, burdening one set of students to benefit another students, which has been proscribed by the Supreme Court. Having regard to the special circumstances of Kerala, the Court held that the enforcement of the NMC OM will lead to arbitrary and iniquitous results.
The judgment observed as follows :
"If the "OM" is directed to be enforced in such manner, it will indubitably lead to a piquant predicament where the fees for the balance 50% seats in the said colleges will have to be escalated because, otherwise, the institutions cannot sustain, especially since, even as on today, the AFRC is fixing the minimum requisite fee for all students taking into account infrastructural investments, future prospects and such other criteria as are statutorily mandated, but ensuring that there is absolutely no leeway for profiteering in any manner.
Ironically, viewed from the correct perspective, the implementation of the afore mandate of the "OM" would be highly iniquitous in Kerala, because it expects the benefits of subsidisation to flow to the students in the "Government quota", presumably under the often presumed impression that such students are more meritorious; but on our State there is no such quota and every student allotted to a Private Institution or Deemed University is "on par" with those allotted to the Government Colleges and all such allotments are made by the Commissioner of Entrance Examinations alone. Hence it would also be an impossibility in our state to enforce the "OM" to the aforementioned extent since all students in the Colleges and Deemed Universities are identically placed, it being even if possible - being arbitrary and discriminatory".
The judgment was passed in a batch of writ petitions filed by Kerala Christian Professional College Management, Kerala Private Medical College Management Association challenging the NMC stipulation and also another writ petition field by a student named Fathima Thazkiya seeking implementation of the said OM.
The office memorandum issued by the NMC on February 3, 2022 mandates that mandating that 50% of the seats in Private Medical Colleges "should be at par with the Fee in the Government Medical Colleges of a particular State ." Further, it envisages that the benefit of such a fee structure would be first made available to those candidates who have availed Government quota seats but limited to the extent of 50% of total sanctioned strength of the respective medical college/deemed university
Private Medical Colleges in Kerala are governed by the Kerala Medical Education( Regulation and Control of Admission to Private Medical Education Institutions) Act, 2017. Under the mandate of the Act, an Admission and Fee Regulatory Committee (AFRC) has been constituted, statutorily vested with the power of fixing fees for medical education in the Private Sector, within the purlieus of various well-established imperatives, including averting profiteering and usurious charging.
Senior Advocate Kurian George Kannanthanam, appearing for the college management associations, contended that the NMC appears to have proceeded on an incorrect assumption that, in Kerala, there are even now two streams for allotment of students, namely 'Government Ouota' and 'Management Quota'. The counsel also questioned the power of the NMC to issue such a mandate, contending that under Section 10(i) of the NMC Act it can only issue guidelines.
Advocate Titus Mani Vettom, the standing counsel of NMC, submitted that the OM has been issued with a laudable objective and contains the broad guidelines to be followed by the fee determining authorities. He maintained that the authority has the power to issue the mandate. He accepted that the OM can be modulated or modified by the fee fixation authorities taking note of the specific conditions of a State.
Advocate Mary Benjamin, for AFRC, submitted that the authority had been determining fees for all seats in private medical colleges in the state since 2017. She pointed out that the implementation of NCM mandate for 50% seats could lead to escalation of fee structure for the remaining seats.
PG Pramod, the Government Pleader, submitted that the State is ensuring that no profiteering takes place as fee is fixed by the AFRC. Advocate Ashik Mohamed Ali, appearing for the student, supported the stand of NMC.
NMC OM can't be applied in toto in Kerala : Court's observation
The Court observed that the difficulty is with respect to the singular stipulation in the office memorandum, that the fees of 50% of the seats in Private Medical Colleges and Deemed Universities "should be at par" with the fee in the Government Medical Colleges and the problem with this seemingly inflexible stipulation is that the fee for Government Medical Colleges is fixed by the State of Kerala through its functionaries, and not by the AFRC.
Therefore, the Court held that the office memorandum, to the extent to which it relates to Kerala, cannot be applied in its toto and will require to be modulated and read down to the extent necessary.
It further said that the NMC could have never intended that their office memorandum to be used to either cross-subsidise education or to burden one section of the students at the cost of the other.
The Court has the AFRC to implicitly abide by all the "guidelines" postulated by the NMC in their Office Memorandum while fixing the fees for all seats in all Private Medical Colleges and Deemed-to-be Universities in Kerala except the stipulation therein for fixing the fee of 50% of the seats in the Private Medical Colleges or Deemed Universities on par with the seats in the Government Medical Colleges.
"W.P.(C).No.5851 of 2022 and W.P.(C).No.24112 of 2022 are ordered, directing the AFRC to implicitly abide by all the "guidelines" postulated by the NMC in their Office Memorandum dated 03.02.2022, while fixing the fees for all seats in all Private Medical Colleges and Deemed-to-be Universities in Kerala except the stipulation therein for fixing the fee of 50% of the seats in the Private Medical Colleges or Deemed Universities on par with the seats in the Government Medical Colleges"
The Court further clarified that this only applies to the State of Kerala alone.
It further clarified that arguments relating to the powers of NMC are left open.
Case Title: Fathima Thazkiya O v. National Medical Commission and Connected Cases
Citation:2022 LiveLaw(Ker)464
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