Dr. C. J. George v. Sree Sankaracharya University of Sanskrit & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY ,THE 23RD DAY OF OCTOBER 2018 / 1ST KARTHIKA, 1940** **WA.No. 1666 of 2017** **AGAINST THE JUDGMENT IN WPC 32702/2010 of HIGH COURT OF KERALA DATED 28-03-2017** ## **APPELLANT/S:** **DR.C.J.GEORGE** **LECTURER SENIOR SCALE, DEPARTMENT OF MALAYALAM,C.K.G.MEMORIAL GOVERNMENT COLLEGE, PERAMBRA,KOZHIKODE DISTRICT, PRESENTLY WORKING AS ASSOCIATE PROFESSOR OF MALAYALAM AT GOVERNMENT ARTS AND SCIENCE COLLEGE, CALICUT.** **BY ADVS.** **SRI.THOMAS MATHEW NELLIMOOTTIL SRI.K.B.SOUNDER RAJAN SRI.VARGHESE JOHN** ## **RESPONDENT/S:** - **1 SREE SANKARACHARYA UNIVERSITY OF SANSKRIT REPRESENTED BY THE REGISTRAR, KALADY P.O., ERNAKULAM DISTRICT.** - **2 THE SYNDICATE OF THE UNIVERSITY REPRESENTED BY ITS CHAIRMEN, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,KALADY -683574.** - **3 DR.J.PRASAD VICE CHANCELLOR & CHAIRMAN OF THE SELECTION** **COMMITTEE,SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY -683574.** - **4 DR. RAGHAVAN PAYYANAD SUBJECT EXPERT (RETD) PROFESSOR,DEPARTMENT OF FOLKLORE, UNIVERSITY OF CALICUT, 683574.** W.A.1666/2017 & 1668/2017 2 **5 DR. A.SHEELA KUMARI READER, DEPARTMENT OF MALAYALAM,SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,KALADY -683574.** **BY ADVS. SRI.PRASANTH S., SC, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT SRI.P.C.SASIDHARAN SRI.S.MUHAMMED HANEEFF** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.10.2018, ALONG WITH WA.1668/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A.1666/2017 & 1668/2017 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY ,THE 23RD DAY OF OCTOBER 2018 / 1ST KARTHIKA, 1940** ## **WA.No. 1668 of 2017** **AGAINST THE ORDER/JUDGMENT IN WPC 3473/2010 of HIGH COURT OF KERALA** ## **APPELLANT/S:** **DR.C.J.GEORGE, LECTURER SENIOR SALE, DEPARTMENT OF MALAYALAM, C.K.G.MEMORIL GOVERNMENT COLLEGE, PERAMBRA, KOZHIKODE DISTRICT, PRESENTLY WORKING AS ASSOCIATE PROFESSOR OF MALAYALAM AT GOVERNMENT ARTS AND SCIENCE COLLEGE, CALICUT.** **BY ADVS.** **SRI.THOMAS MATHEW NELLIMOOTTIL SRI.K.B.SOUNDER RAJAN SRI.VARGHESE JOHN** ## **RESPONDENT/S:** **1 DR.A.SHEELAKUMARI, READER, DEPARTMENT OF MALAYALAM, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY683574. 2 SREE SANKARACHARYA UNIVERSITY OF SANSKRIT REPRESENTED BY THE REGISTRAR, KALADY P.O., ERNAKULAM DISTRICT. 3 VICE CHANCELLOR, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY-683574.** **BY ADVS. SRI.S.MUHAMMED HANEEFF SRI.PRASANTH S,SC,SREE SANKARACHARYA UNTY OF SANSKRIT** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.10.2018, ALONG WITH WA.1666/2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A.1666/2017 & 1668/2017 4 ## **JUDGMENT** Both these writ appeals are directed against a common judgment rendered by the learned Single Judge on 28.3.2017 finally disposing of W.P.(C) No. 3473 of 2010 and W.P.(C) No. 32702 of 2010. W.A. No. 1668 of 2017 arises out of W.P.(C) No. 3473 of 2010 and W.A. No. 1666 of 2017 arises out of W.P.(C) No. 32702 of 2010. Since common issues arise for determination, both the writ appeals are considered together and finally disposed of by this judgment. 2. Both the appeals are filed by the same person. We shall refer to the parties as well as the documents in the manner they are referred to in W.P.(C) No. 3473 of 2010 treating W.A. No. 1668 of 2017 as the leading case. 3. The appellant is an unsuccessful candidate in a selection conducted by Sree Sankaracharya University of Sanskrit, for appointment to the post of Reader in Malayalam in the said W.A.1666/2017 & 1668/2017 5 University. Applications were invited for appointment to the said post as per a notification dated 9.7.2007 evidenced by Ext.P6 in the writ petition. Ext. P6 inter alia stipulated possession of 'Five years of experience of teaching' as qualification for appointment to the notified post. The appellant challenges the appointment of the first respondent, the successful candidate alleging that, she does not possess the requisite teaching experience. 4. The appellant is a Senior Lecturer in the Government Arts and Science College, Calicut. He has been working in the said post, for more than a decade and satisfies all the qualifications stipulated by the notification. The application of the first respondent was initially rejected by the University stating that she did not possess the required teaching experience. However, pursuant to an interim order passed by this Court in W.P.(C) No. 3473 of 2010, she appeared for the interview. As the successful candidate, she has been selected W.A.1666/2017 & 1668/2017 6 and appointed. It is challenging her appointment that, W.P.(C) No. 32702 of 2010 was filed by the appellant. He had also got himself impleaded as a respondent in W.P.(C) No. 3473 of 2010 filed by the first respondent challenging the rejection of her candidature, as stated above and had contested the said writ petition. 5. Both the writ petitions were considered by the learned Single Judge together and were finally disposed of by the judgment appealed against. The learned Single Judge found that, there was no infirmity in the selection of the first respondent and that she was possessed of the requisite teaching experience in terms of the notification. Therefore, W.P.(C) No. 32702 of 2010 has been dismissed while W.P.(C) No. 3473 of 2010 has been closed in the light of the first respondent's appointment as a Reader in Malayalam by the University. The aggrieved appellant is in appeal. W.A.1666/2017 & 1668/2017 7 6. According to Dr. K.B.Sounder Rajan who appears for the appellant, the teaching experience possessed by the first respondent is only as a Guest Lecturer or an appointee on contract basis. Such experience cannot be equated with the regular teaching experience possessed by the appellant. It is pointed out by the learned counsel that, Guest Lecturers are appointed usually on the basis of a walk-in-interview conducted by the Principal or the Head of the Institution. The candidates who appear do not undergo any regular process of selection, nor are the principles of reservation observed. The teaching experience acquired through such appointments cannot satisfy the requirement of the stipulation contained in Ext.P6 Notification. Such Guest Lecturers are paid on hourly basis. In sharp contrast, a regular appointee goes through a proper selection process and is appointed permanently drawing a regular salary. The learned counsel places reliance on the W.A.1666/2017 & 1668/2017 8 decision in Vasundhara v. Sallas Benjamin (2010 (1) K.L.T. 533) to point out that the dictum in the said case mandates the consideration of only experience gained on the basis of a regular appointment as teaching experience that could be counted for selection and appointment to a regular teaching post. The learned counsel also places reliance on the decision in SubInspector Rooplal v. Lt. Governor Through Chief Secretary, Delhi [(2000) 1 SCC 644], particularly paragraph 12, to point out that binding precedents are to be followed, from which principle, the learned Single Judge has deviated, committing a serious error. 7. Apart from the above, the learned counsel also points out that, similar experience acquired by the first respondent was not considered as sufficient in the case of certain other candidates. Therefore, it is contended that the University had not adopted a uniform practice in evaluating the teaching experience of different candidates, thereby justifying a W.A.1666/2017 & 1668/2017 9 presumption that the selection was vitiated by extraneous consideration. On the above grounds, the learned counsel seeks interference with the judgment of the learned Single Judge. 8. Per contra, Adv. S. Muhammed Haneef who appears for the first respondent refers to the circumstances under which the appointment of the first respondent continued to be treated as a Guest Lecturer. It is pointed out that, she was selected and appointed in the year 1995, after the Sree Sankaracharya University was established. Though she had joined the service of the University, pursuant to a regular selection and appointment, the selection was later on set aside by this Court finding that the selection made in the absence of framing of Statutes for University was wrong. The counsel points out that the selection was not set aside for the reason that there was some defect in the process, but on a technical ground that no Statutes had been brought into force. In such situation, since the University had to W.A.1666/2017 & 1668/2017 10 function, the selected persons were permitted to continue as either Guest Lecturers or contract appointees. It is therefore pointed out that, the first respondent was a person who had been selected on the basis of a regular selection process, after undergoing a proper selection procedure conducted pursuant to the issue of the notification. According to the learned counsel, she is not a person who had been appointed by the Head of the Department or by the Principal on ad hoc basis without a selection. The question as to how the experience of the teachers who are continuing in the service of the University were to be treated had engaged the attention of the Syndicate and the Syndicate had taken a decision to count such service for the purpose of regular selection. It is pointed out that, this Court has in Ext.P5 judgment dated 5.1.2009 in W.P.(C) No. 323 of 2009 accepted the above decision and directed that the decision shall apply to all similarly situated candidates. Since the first W.A.1666/2017 & 1668/2017 11 respondent was the petitioner in the said writ petition, it is contended that she was entitled to the benefit of the said direction. Apart from the above, our attention is drawn to an interim order passed by this Court in W.P.(C) No. 3473 of 2010 on 11.2.2010 evidenced by Ext.R5(f) in W.P.(C) No. 32702 of 2010, by which, this court had directed the University and its Vice Chancellor to consider the experience of the first respondent as valid experience as per the notification inviting applications provisionally and subject to the result of the writ petition. Therefore, according to the learned counsel, the teaching experience acquired by the first respondent was taken into account on valid considerations. Since the notification did not stipulate that the teaching experience ought to have been acquired in a regular post, no such stipulation could be imported into the notification at this stage. According to the learned counsel therefore, the dictum in Vasundhara's case (supra) has W.A.1666/2017 & 1668/2017 12 no application to the facts of the present case. The teaching experience in the present case stands on a totally different footing and cannot be equated with the teaching experience acquired by Guest Lecturers in the ordinary course. The counsel therefore seeks dismissal of the writ appeals. 9. We have heard Adv. Prasanth who appears for the University also. 10. It is worth noticing that, the dispute in this case has to be considered in the context of the circumstances under which the first respondent and persons like her were appointed to the service of the University. After the Sree Sankaracharya University was established by the Sree Sankaracharya University of Sanskrit Act, 1994, for the purpose of commencing the classes, appointment of sufficient staff became necessary. Therefore, in 1995 the University issued a notification inviting applications for various posts including Lecturers. It is not in W.A.1666/2017 & 1668/2017 13 dispute that the first respondent was appointed as a Lecturer in the service of the University on 1.9.1995. However, the validity of the appointments were challenged before this Court. The appointments were set aside by a Single Judge of this Court and was confirmed by a Division Bench of this Court dismissing the appeals. The said decision is reported in Sree Sankaracharya University of Sanskrit v. State (1996 (2) K.L.T. 378). In view of the said judgment, the University by an order dated 12.5.1997 cancelled the appointment of the first respondent. Later on, a fresh notification dated 5.9.1997 was issued and another selection was conducted. In the select list that was drawn up, the first respondent was Sl. No. 16 and the appellant was Sl. No. 30. The said list is evidenced in W.P.(C) No. 32702 of 2010 (W.A. No. 1666 of 2017) by Ext. R5(b). However, she was not appointed for the reason that there were no sanctioned posts. Since the requirement of teaching staff was urgent, she was W.A.1666/2017 & 1668/2017 14 permitted to continue on contract basis. It is therefore clear that, the persons including the first respondent who were selected in the circumstances noticed above cannot be equated with the Guest Lecturers who are usually appointed by the Principal of an institution without any selection process. They are persons who had undergone a selection conduced pursuant to a notification. They are persons who were ranked in the select list but were not appointed for want of posts. They had continued in service and had gained teaching experience. Taking into account the above facts, a Division Bench of this Court has in a judgment dated 18.6.2015 evidenced by Ext.R5(k) in W.P.(C) No. 32702 of 2010 held that such experience constitute regular teaching experience. We are in respectful agreement with the said dictum. 11. Apart from the above, as rightly pointed out by the counsel for the first respondent, Ext.P5 judgment of this W.A.1666/2017 & 1668/2017 15 Court produced in W.P.(C) No. 3473 of 2010 supports the impugned action of the University inasmuch as, the Syndicate decision to grant two marks for each completed year of service as Guest Lecturer on contract basis in the University has been approved by this Court. The first respondent was the petitioner in the said writ petition and it has been ordered by this Court that, the benefit of the said decision would be made available to all similarly situated candidates. In spite of the above, the application of the first respondent was rejected by the University. The said action was challenged by the first respondent in W.P.(C) No. 3473 of 2010 before this Court. In the said writ petition, this Court had issued an interim order dated 11.2.2010, which is reproduced hereunder for convenience of reference. “There will be an interim order directing the respondents to consider the candidature of the petitioner by considering his experience as valid experience as per the W.A.1666/2017 & 1668/2017 16 notification inviting applications, provisionally subject to the result of the writ petition.” The order is evidenced by Ext. R5(f) in W.P.(C) No. 32702 of 2010 (W.A. No. 1666 of 2017). Since the University is a party to the said writ petition, we do not find any infirmity in the action of the University in considering the teaching experience of the first respondent in terms of the said direction. 12. As already noticed above, the teaching experience possessed by the first respondent is different from the normal teaching experience of Guest Lecturers appointed without following any proper selection process. The appointment of the first respondent as Guest Lecturer or as Lecturer on contract basis had occurred in the peculiar facts and circumstances noticed above. The Syndicate of the University had taken a decision to count such service as valid experience for appointment to the University. The said decision had been approved by this Court. In view of the above, we are not W.A.1666/2017 & 1668/2017 17 satisfied that, there is any merit in the contention put forward by the counsel for the appellant. It is worth noticing that, at the interview, the first respondent had come out successful. In the case of the other persons to whom the University had not granted the benefit of their teaching experience as Guest Lecturer, it is pointed out that they had not challenged the action before this Court or any other authority. It is for the said reason that, their candidature were not considered. In contrast, the first respondent had obtained an interim order from this Court, on the basis of which she had attended the interview and come out successful. Since her experience has been found by us to be acceptable in terms of the notification issued in this case, the learned Single Judge was perfectly right in dismissing the W.P.(C) No. 32702 of 2010. No further orders were required to be passed in W.P.(C) No. 3473 of 2010 since the first respondent had already been appointed. The above being the state of W.A.1666/2017 & 1668/2017 18 affairs, we find no grounds to grant any of the reliefs sought for in these writ appeals. The writ appeals fail and are accordingly dismissed. Sd/K. SURENDRA MOHAN JUDGE Sd/SHIRCY V JUDGE sb