Aji Joy v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 4TH DAY OF NOVEMBER 2016/13TH** **WP(C).No. 7023 of 2013 (C) ---------------------------** ## **PETITIONER(S): -------------** **AJI JOY,** **ASSISTANT PROFESSOR, DEPARTMENT OF ELECTRONICS AND COMMUNICATION, MAR ATHANASIUS COLLEGE OF ENGINEERING, KOTHAMANGALAM - 686 691.** **BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN** **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA,** **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM, PIN - 695 023.** **3. THE JOINT DIRECTOR OF TECHNICAL EDUCATION, REGIONAL DIRECTORATE OF TECHNICAL EDUCATION, KOTHAMANGALAM-686 691.** **4. THE MANAGER, MAR ATHANASIUS COLLEGE OF ENGINEERING KOTHAMANGALAM - 686 666.** **5. MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM, PIN 686 560, REPRESENTED BY ITS REGISTRAR.** **R1-3 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN R4 BY SRI.GEORGE JACOB (JOSE) R5 BY ADV. SRI.VARUGHESE M.EASO, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 7023 of 2013 (C) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** |**EXT.P-1**|<br>**TRUE COPY OF THE ORDER NO.AC BII-2/573/98 DATED 14.8.2012**| |---|---| ||**APPROVAL BY THE 5TH RESPONDENT UNIVERSITY.**| |**EXT.P-2**|<br>**TRUE COPY OF PROCEEDING NO.A2/1590/2002 DATED 30.10.2012**| ||**ISSUED BY THE 3RD RESPONDENT.**| |**EXT.P-3**|<br>**TRUE COPY OF PROCEEDINGS NO.A2/979/09 DATED 19.5.2009**| ||**ISSUED BY THE 3RD RESPONDENT.**| |**EXT.P-4**|<br>**TRUE COPY OF THE PROCEEDINGS NO.A2/2182/2010(2/4) DATED**| ||**10.11.2010 ISSUED BY THE 3RD RESPONDENT.**| |**EXT.P-5**|<br>**TRUE COPY OF THE RE-APPOINTMENT ORDER NO.B1-2434/2007**| ||**(L-I) DATED 31.8.2010 ISSUED BY THE 4TH RESPONDENT.**| |**EXT.P-6**|<br>**TRUE COPY OF THE RE-APPOINTMENT ORDER NO.B1-2434/2007(L-**| ||**I) DATED 1.6.2011 BY THE 4TH RESPONDENT.**| |**EXT.P-7**|<br>**TRUE COPY OF THE ORDER NO.DPI/1589/2011(2) DATED 5.9.2011**| ||**WAS APPROVED BY THE 3RD RESPONDENT.**| |**EXT.P-8**|<br>**TRUE COPY OF COMMUNICATION 19.2.2011 ISSUED BY THE 3RD**| ||**RESPONDENT TO THE 4TH RESPONDENT.**| |**EXT.P-9**|<br>**TRUE COPY OF THE GOVERNMENT ORDER (MS) NO.317/2010 DATED**| ||**22.9.2010**| |**EXT.P-10**|**TRUE COPY OF THE GOVERNMENT ORDER (MS) NO.376/2010 DATED**| ||**15.11.2010**| |**EXT.P-11**|**TRUE COPY OF THE REPRESENTATION DATED 26.9.2011 SUBMITTED**| ||**BY THE PETITIONER TO THE GOVERNMENT.**| |**EXT.P-12**|**TRUE COPY OF THE LETTER NO.L2/31409/2009 DATED 7.12.2011**| ||**ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.**| |**EXT.P-13**|**TRUE COPY OF THE LETTER NO.37589/13/11/H.EDN DATED**| ||**26.9.2012 ISSUED BY THE 1ST RESPONDENT TO THE 4TH**| ||**RESPONDENT.**| |**RESPONDENT(S)' EXHIBITS**|| |**-----------------------**|| **NIL.** **/ TRUE COPY /** **PJ** **P.S. TO JUDGE** ANU SIVARAMAN, J. ---------------------------------------- W.P.(C) No.7023 of 2013 ----------------------------------------Dated this the 4[th] day of November, 2016 ## JUDGMENT The petitioner who is presently working as an Assistant Professor in the 4[th] respondent's College seeks the approval of his appointment in a deputation vacancy for the period from 31.08.2010 to 31.05.2011. The petitioner is a person who was initially appointed as Assistant Professor in the same college for the period from 23.07.1998 to 10.12.1998. When further deputation vacancy arose in the college from 01.06.1999 to 16.01.2000, the petitioner was again appointed against the said vacancy, by Exts.P1 and P2. The first two spells of appointment have been approved. Thereafter, a deputation of vacancy arose in the college on 31.08.2010. The duration of the vacancy was from 31.08.2010 to 26.07.2013. The petitioner was appointed against the said vacancy, by Ext.P5 proceedings. Thereafter, W.P.(C) No.7023 of 2013 -2- when a regular promotion vacancy arose in the college, the petitioner was reposted against the said vacancy with effect from 01.06.2011 and his appointment in the regular vacancy was approved as per Ext.P7 order dated 05.09.2011. However, the appointment of the petitioner in the deputation vacancy with effect from 31.08.2010 was not approved. The reason given in Ext.P8 order of rejection by the Joint Director, Technical Education is that the said appointment cannot approved as per Clause 8 of the Circular of Director of Technical Education dated 28.06.2010. The contention is that the vacancy which arose on 31.08.2010 was a deputation vacancy on account of Quality Improvement Program (hereinafter referred to as 'the QIP' for short) of the UGC and Government Orders have been issued directing that such vacancies shall be filled up only by appointing Guest Lecturers. The petitioner thereafter submitted a representation before the Government seeking approval of his appointment. The Government by Ext.P13 communication dated 26.09.2012 W.P.(C) No.7023 of 2013 -3- directed the 4[th] respondent Manager to furnish explanation for appointing the petitioner as Assistant Professor in the QIP vacancy overlooking the Government Order prohibiting such appointment. 2. Heard the learned counsel for the petitioner, learned Standing Counsel appearing for the University, learned Government Pleader appearing for respondents 1, 2 and 3 and the learned counsel appearing for the 4[th] respondent. 3. The learned counsel appearing for the petitioner would contend that he has prior approved service under the same management. In the above circumstances, he would state that he is entitled to the benefit of Section 62(2)(b) of the Mahatma Gandhi University Act, 1985. Section 62(2) (b) reads as follows : “62 Conditions of service of teacher of Private Colleges:- (i)...... (2) Notwithstanding anything contained in this Act, the Statutes, Ordinances and Regulations made W.P.(C) No.7023 of 2013 -4- thereunder :- (a) ........ (b) a teacher relieved from a private college on or after the 14[th] day of March, 1974 due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed or for any other reason except disciplinary action against him shall be given preference in the matter of future appointments in the private colleges or, as the case may be, any of the private colleges under the management of the educational agency within the University area.” 4. The petitioner contends that the vacancy which arose on 31.08.2010 was a long term vacancy, having a duration of nearly 3 years. Going by Section 62(2)(b) of the Mahatma Gandhi University Act, the petitioner would be entitled to be appointed against the said vacancy. It is further contended that Government Orders directing that the vacancies under the QIP scheme would be filled up only by appointing Guest Lecturers could not operate against the specific provisions contained in the Act and can have no effect in the petitioner's case. The petitioner places reliance on the W.P.(C) No.7023 of 2013 -5- decision of this Court reported in V.V.Sathimani v. Payyannur Educational Society and others [2007 (3) KHC 109] as well as the decision of the Kerala Administrative Tribunal in O.A.No.631/2015. 5. The learned Government Pleader would, on the other hand, submit that the vacancy which arose on 31.08.2010 being a deputation vacancy on account of the Quality Improvement Program of the UGC, the Government had issued specific orders directing that such vacancy would be filled up only by appointing Guest Lecturers. Attention is drawn to G.O.(Rt)No.1257/10/H.E.dn dated 25.06.2010 with regard to deputation of teachers of Government and private Engineering colleges under the QIP. It is stated that the said Government Order specifically provides that only Guest Lecturers shall be appointed against the resultant vacancies. 6. In O.A.No.631/2015, the Kerala Administrative Tribunal considered the question of filling up of vacancies which arose on deputation of teachers in Government Colleges W.P.(C) No.7023 of 2013 -6- under the QIP. Considering the validity to an executive order, which according to the Government prevented the filling up of the vacancies which arose due to such deputation from the ranked list published by the PSC, the Tribunal held that the deputation vacancies are also substantive vacancies and can be filled up only in accordance with rules. It was stated that the executive order cannot have the efficacy to modify statutory rules and the 14 vacancies which arose due to deputation would therefore have to be filled up from the ranked list in force. 7. In the instant case also, the claim of the petitioner is based on a statutory provision under the Mahatma Gandhi University Act. The petitioner claims that he has to be considered for appointment on a preferential basis against any vacancy arising under the same management in view of the said provision of law. This has been done by the management also. The petitioner was appointed against the deputation vacancy on 31.08.2010 and was adjusted against a W.P.(C) No.7023 of 2013 -7- regular promotion vacancy which arose on 01.06.2011. Exts.P8 order of the third respondent and Ext.P13 order of the Government which proceed on the basis of such appointment could not have been made by the Manager are therefore erroneous. 8. The learned Government Pleader at this juncture pointed out that the judgment of the Kerala Administrative Tribunal in O.A.No.631/2015 is pending in O.P.(KAT) No.381/2015 before a Division Bench of this Court. Having considered the contentions advanced on both sides, based on the provisions contained in Section 62(2)(b) of the Mahatma Gandhi University Act, I am of the view that the petitioner was entitled for appointment on preferential basis to the deputation vacancy which arose on 31.08.2010. The Government orders relied on in the counter affidavit and produced along with a memo by the Government Pleader cannot obliterate the rights of the petitioner which have accrued on the basis of a statutory provision. W.P.(C) No.7023 of 2013 -8- In the result, the impugned orders are set aside. It is declared that the petitioner is entitled to approval of his appointment as Assistant Professor in the deputation vacancy for the period from 31.08.2010 to 31.05.2011 and to all consequential benefits. Consequential orders shall be passed by the competent among the respondents within a period of two months from the date of receipt of a copy of this judgment. Monetary benefits shall also be calculated and disbursed to the petitioner within a period of one month thereafter. Writ petition is ordered accordingly. Sd/ANU SIVARAMAN, JUDGE vs