Kerala High Court upholds amendments to Kerala University Act on communal reservation

The Kerala High Court on Tuesday upheld the the amended provisions of the Kerala University Act which clubbed the posts of Assistant Professors, Associate Professors and Professors of all departments to create separate cadres for the purpose of applying communal reservation principles (State of Kerala v. Dr G Radhakrishna Pillai)..A Division Bench of Justices AK Jayasankaran Nambiar and Mohammed Nias CP found that the amendments to various University Acts does nothing more than provide a statutory backing to the scheme of grouping of posts that was approved in the context of the Cochin University of Science & Technology Act, 1986 read with the Kerala State and Subordinate Service Rules, 1958 (KS&SSR)"The amendments effected in 2014 only enabled the Universities to apply the principles of communal reservation under the KS&SSR, by grouping all the posts of Professors, Associate Professors and Assistant Professors, in the various departments of the University, as separate cadres/categories for the said purpose. We fail to see how the said amended provisions can be viewed as unconstitutional", the Court held..The Court opined that when plurality is the main objective to be achieved for effectively implementing the reservation principles, the common features identified must bring out the essence of the duties and responsibilities attached to the post, and a grouping of the posts on that basis must also be authorised by the statutory provisions in vogue.."When viewed in the backdrop of the main objective of ensuring a plurality of posts in a cadre, interchangeability of posts can only be a secondary feature that has to be considered, vis-à-vis the features that have contributed to the inclusion of the posts in the cadre, and when so considered, it merely serves to ensure that there is no grouping of dissimilar posts," the Court said. .The Court issued the order while allowing a batch of appeals that challenged the order of a single judge that had set aside the notification of the State government publishing the University Laws (Second Amendment) Act, as well as the Order of the Kerala University implementing the amended provisions in the University.Based on the statutory provisions as they stood prior to 2014, the Universities in the State had been categorising the teaching and non-teaching posts department/subject wise while applying the reservation principles enumerated in the Kerala State and Subordinate Service Rules, 1958 (KS&SSR).The amendment clubbed the posts of Assistant Professors, Associate Professors and Professors of all departments to create separate cadres in relation to each of the above categories of posts, to apply the rules of communal rotation.Subsequently, the petitioners (respondents herein) challenged the amended provisions of Section 6 (2) of the Kerala University Act on the ground that they were unconstitutional..The single-judge had allowed the petitions and the present batch of appeals were preferred by the State, the University and by persons who had already secured appointments based on the recruitment notification that had been set aside by the single-judge. .Advocate General Gopalakrishna Kurup, assisted by the Senior Government Pleader V Manu and Government Pleader TB Hood appeared for the State government. Advocate Thomas Abraham for the Kerala University. Senior Advocates P Ravindran, Sumathi Dandapani and advocates Lakshmi Ramdas, Millu Dandapani, Elvin Peter, Raghurak, Mohan Jacob, Aravindaksha Pillai, C Unnikrishnan appeared for the appellants. Senior Advocate George Poonthottam and advocates Navneeth and Ajaykumar appeared for the original petitioners (respondents in the appeal)..The earlier method of subject wise categorisation of posts had resulted in a large number of posts being categorised as a single cadre, and thereby excluded from communal reservation;The amendment restructures the cadres in such a way that there was a plurality of posts in each cadre;Cadre structuring and re-structuring, so long as it based on criteria that bear rational nexus, cannot be interfered with by the court in judicial review;At their respective levels, professors, irrespective of the subject they teach, carry the same duties, responsibilities and scale of pay and, after the adoption of the UGC Regulations, the eligibility requirements for recruitment to the posts are also the same in the respective levels. .The purported object of providing greater reservation cannot justify the inclusion of dissimilar posts in a cadre while implementing the reservation principles enumerated under the KS&SSR; While examining whether teaching posts included in a cadre are similar and interchangeable, the subject/discipline concerned is a relevant feature that must inform the inclusion of a post in a cadre. .The central issue the Court examined was whether, for the purposes of applying the rules of communal reservation, the grouping of teaching posts carrying similar pay scales, duties and responsibilities, albeit in different subjects, can be seen as arbitrary and therefore illegal and unconstitutional. .The Bench examined a host of judgments by the Supreme Court and the Kerala High Court on similar matters and found that they do not lay down a general rule, divorced of statutory context, that teaching posts in different subjects or disciplines cannot be included in a single cadre for the purposes of applying the principles of communal reservation..It also observed that as per the Central Educational Institutions (Reservation In Teachers' Cadre) Act, 2019, the Central Government has recognised the principle of treating the University/College/Institution as a single unit for the purposes of reservation in the teachers cadre.Moreover, the University Grants Commissions(UGC) has also issued instructions to all Universities coming under its purview to adopt the said practice, the Court noted..Therefore, the Court allowed the appeals and upheld the amendments to the Kerala University Act. .[Read Judgment]