UGC Regulations Prescribe Appointment Of Principal In Affiliated Colleges Only By Direct Recruitment, Not By Promotion: Kerala HC

The Kerala High Court on Wednesday considered the question as to whether the Principal of a UGC affiliated private college in the State could be appointed by promotion, contrary to that provided in the UGC Regulations for maintenance of the standards in institutions for higher education. 

The Division Bench comprising Justice P.B. Suresh Kumar and Justice Sophy Thomas, while considering an appeal by a person who had been appointed to the post of Principal by promotion, and not by direct recruitment, perused the MG University Act, as well as the UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2018 (Regulations, 2018), and observed that, 

"Insofar as the UGC Regulations prescribe direct recruitment as the only method of appointment to the post of Principal of affiliated colleges, if a candidate is appointed as Principal by promotion, the said appointment can be construed to be only as one made disobeying the UGC Regulations". 

It therefore went on to hold that since the UGC Act was the dominant legislation, Section 59(2) of the MG University Act enabling appointment to the post of Principal by promotion could not be said to be incidental to the object of the Act, and hence, the same would not prevail over the UGC Regulations, which are to be treated as part of the UGC Act. 

"In other words, on the introduction of the UGC Regulations, Section 59(2) of the Act which enables appointment to the post of Principal in an affiliated college by promotion, had become inoperative", it was observed. 

Brief Facts

As per the factual matrix, the appellant, who had been the senior most teacher, was appointed as the Principal by promotion. The University however, did not approve the proposal for appointment of the appellant as Principal, on the ground that the Principal could be appointed only in accordance with the UGC Regulations 2018 and the appellant had been appointed without conducting a selection as provided for in the Regulations. Subsequently, the Manager of the College wrote a letter to the University seeking review of the said decision on the ground that Section 59(2) of the Mahatma Gandhi University Act (hereinafter, 'the Act') provides for appointment to the post of Principal by promotion as well, in addition to that of direct recruitment. The Manager in his letter to the University further pointed out that the College being a minority institution, its management would be free to appoint any teacher of its choice as the Principal. The University however, reiterated its stance, and in this context, the appellant filed a writ petition seeking a direction from the University to approve her appointment as Principal of the College. 

The Single Judge upheld the decision of the University, and held that the Regulations would prevail over Section 59(2) of the Act. It is on being aggrieved by the same, that the writ appeal was preferred. 

Division Bench Ruling 

It was contended by the counsels for the appellant that although the Regulations prescribed the qualifications for appointment to the post of Principal and provided that appointment shall be made by direct recruitment, it did not prohibit appointment to the post by promotion. It was argued that inasmuch as Section 59(2) of the Act enabled appointment to the post of Principal by promotion on the principle of seniority-cum-fitness, in the absence of any provision in the Regulations prohibiting appointment by promotion, it cannot be said that the appointment of the appellant as Principal by promotion is contrary to the Regulations. The stance that the College being a minority institution, its management would be free to appoint any teacher of its choice as the Principal was also reiterated before the Division Bench. 

On the other hand, it was argued by the Standing Counsel for the University that Teachers and Principals of affiliated colleges in the State covered by the Direct Payment Scheme of the State Government are being disbursed pay and allowances and other benefits as provided for in the Regulations adopted by the State Government, and the appointments to such posts can, therefore, only be made in accordance with the Regulations. It was argued that the appointment to the post of Principal as per the Regulations is only through promotion, and not through direct appointment. It was further argued that insofar as the College was an aided institution, it could not be contended that it would not be bound by the Regulations, merely because it was a minority institution. 

The Court noted that the UGC Act falls under Entry 66 of List I of the Seventh Schedule to the Constitution was enacted to provide for co-ordination and determination of standards in universities. The MG University Act on the other hand was enacted to establish a new teaching and affiliating University in the State to provide for the urgent development of higher education in the areas comprised in the Kottayam, Ernakulam and Idukki revenue districts, the Kuttanad taluk of the Alleppey revenue district and the Kozhencherry, Mallappally, Thiruvalla and Ranni taluks of the Pathanamthitta revenue district of the State, and falls under Entry 25 of List III of the Seventh Schedule. 

"There cannot be any doubt to the fact that prescriptions as regards minimum qualifications and method of appointment of teachers and Principals of institutions of higher education, are prescriptions that could be made only in a legislation under Entry 66 of List I. The argument that the method of appointment to teaching posts in institutions of higher education has nothing to do with the determination of standards of such institutions cannot be accepted, for otherwise, the UGC Regulations would not have prescribed the method of appointment to various teaching posts, including the post of Principal", the Court observed. 

The Court further noted the principle of federal supremacy that the laws made by the Parliament would prevail over those made by the State even in respect of matters allotted to the State under any of the Entries in List II or List III of the Seventh Schedule

"It is now trite that inconsistencies in the competing statutes should be of such nature so as to bring the two enactments into direct collision with each other and a situation should be reached where it is impossible to obey one without disobeying the other. Insofar as the UGC Regulations prescribe direct recruitment as the only method of appointment to the post of Principal of affiliated colleges, if a candidate is appointed as Principal by promotion, the said appointment can be construed to be only as one made disobeying the UGC Regulations". 

The Court took note of the doctrine of incidental encroachment, and noted that if the overlapping provision of the State legislation is incidental to the main object of the State legislation and if it is incidental to the main object of the State legislation, the overlapping provision would have to be construed harmoniously. However, if the provision in a State Legislation which encroaches upon the field covered by a Central Legislation, which is the dominant legislation in that field, and if such encroachment cannot be said to be incidental to the main object of the State Legislation, the Parliamentary legislation would prevail and the State legislation would have to give way to the same. 

It is thus that the Court arrived at the finding that on the introduction of the UGC Regulations, Section 59(2) of the Act which enables appointment to the post of Principal in an affiliated college by promotion, had become inoperative. 

The Court further noted that the contention regarding the College being a minority institution with the freedom to choose a qualified teacher of its choice as the Principal in terms of Article 30(1) of the Constitution was not raised before the Single Judge. 

"That apart, by not joining with the appellant in the appeal, the College has accepted the decision of the learned Single Judge. In the circumstances, according to us, it is unnecessary for us to examine the sustainability or otherwise of the contention raised by the appellant based on Article 30(1) of the Constitution, as the same is a contention that could be urged only by the institution, viz, the College", the Court added while dismissing the appeal. 

Advocates K.B. Gangesh and Smitha Chathanarambath appeared on behalf of the appellant. The respondents were represented by the Standing Counsel of the University Surin George Ipe, Senior Government Pleader B. Vinitha, and Advocate S. Krishnamoorthy. Amicus Curiae Parvathi Sanjay also appeared in this case. 

Case Title: Aleyamma Kuruvilla v. Mahatma Gandhi University 

Citation: 2023 LiveLaw (Ker) 84

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