Dr. G. Muraleedhara Kurup v. University of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **MONDAY, THE 7TH DAY OF JANUARY 2013/17TH POUSHA 1934** ## **WP(C).No. 8116 of 2012 (L)** ## **--------------------------** **PETITIONER(S):** **--------------------------** **DR. G. MURALEEDHARA KURUP, PROFESSOR,DEPARTMENT OF BIOCHEMISTRY, UNIVERSITY OF KERALA,KARIAVATTOM CAMPUS, THIRUVANANTHAPURAM-695 581.** **BY ADVS.SRI.M.RAJAGOPALAN NAIR SRI.G.BIJU** **RESPONDENT(S):** - **----------------------------** ## **1. UNIVERSITY OF KERALA,** - **REPRESENTED BY ITS REGISTRAR,THIRUVANANTHAPURAM-695 001** **2. THE SYNDICATE OF UNIVERSITY OF KERALA, REPRESENTED BY ITS CHAIRMAN,VICE CHANCELLOR, UNIVERSITY OF KERALA,THIRUVANANTHAPURAM.PIN-695 001** **3. THE VICE CHANCELLOR,** - **UNIVERSITY OF KERALA,THIRUVANANTHAPURAM.PIN-695 001** **4. DR.ANNIE ABRAHAM ,PROFESSOR (BY PROMOTION), DEPARTMENT OF BIO-CHEMISTRY,UNIVERSITY OF KERALA, KARIAVATTOM CAMPUS,KARIAVATTOM P.O., THIRUVANANTHAPURAM.PIN-695 001** **(ADDL.R3 & R4 ARE IMPLEADED AS PER ORDER DATED 03.04.2012 IN IA.NO.5238/2012 IN WP(C)NO.8116/2012-L PASSED BY THIS HON'BLE COURT)** **R1 TO R3 BY ADV. SRI.GEORGE POONTHOTTAM,SC,KERALA UTY. R4 BY ADV. SRI.V.MANOJ KUMAR SRI.IYPE JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.8116/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** - **EXT.P1 : TRUE COPY OF THE ADVICE FOR APPOINTMENT ISSUED TO THE PETITIONER.** - **EXT.P2 : TRUE COPY OF THE APPOINTMENT ORDER APPOINTING PETITIONER AS PROFESSOR IN DEPARTMENT OF BIOCHEMISTRY, UNIVERSITY OF KERALA.** - **EXT.P3 : TRUE COPY OF THE REPRESENTATION GIVEN TO THE 1ST RESPONDENT.** - **EXT.P4 : TRUE COPY OF THE REPRESENTATION GIVEN TO THE VICE CHANCELLOR, UNIVERSITY OF KERALA.** - **EXT.P5 : TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE VICE CHANCELLOR AND MEMBERS OF SYNDICATE ON 20.3.2012.** - **EXT.P6 : TRUE COPY OF THE ORDER DATED 31/3/2012 ISSUED BY THE VICE CHANCELLOR NOMINATING DR.ANNIE ABRAHAM AS HEAD OF THE DEPARTMENT OF BIOCHEMISTRY.** - **EXT.P7 : TRUE COPY OF THE ORDER PROMOTING DR.ANNIE ABRAHAM AS PROFESSOR IN THE DEPARTMENT OF BIOCHEMISTRY** - **EXT.P8 : TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT** **EXT.P9 : TRUE COPY OF THE REPLY GIVEN BY THE PUBLIC INFORMATION OFFICER.** ## **RESPONDENTS' EXHIBITS :** **R1(A) COPY OF THE ORDER NO.AD.D.II.3.33862/2007 DATED 01/4/2008** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** ## **sts** ## **A.M.SHAFFIQUE, J * * * * * * * * *** W.P.C.No.8116 of 2012 ---------------------------------------Dated this the 7[th] day of January 2013 ## **J U D G M E N T** The petitioner is working as a Professor in the BioChemistry Department of University of Kerala, Karyavattam. Ext.P1 is the appointment order and he joined with effect from 27/12/2007. The question raised in this writ petition is with reference to the right of the petitioner to be nominated as the Head of the Department (HOD). It seems that during the pendency of this writ petition, by Ext.P6 order, the University appointed the 4[th] respondent as the head of the department in the Bio-Chemistry Department with effect from 31/3/2012 for a period of three years on account of the fact that the nomination of faculty Dr.T.Rajamohan who was earlier the head of the department was over by the said date. The petitioner challenges Ext.P6 on the contention that he is the senior most Professor in the department and W.P.C.No.8116/2012 2 entitled to be nominated as the HOD in terms of Chapter III Statute 18 of the Kerala University First Statute 1977. Statute 18 reads as under: _“Head of a Department:The Professor, Reader or Lecturer in charge of a Department shall be Head of the Department. The Head of the Department shall be nominated on a rotation basis for three years starting with the senior most teacher of the Department. The Syndicate shall nominate the senior most Professor as the Head of the Department for a period of three years and at the end of the three year, next senior most Professor shall be nominated. After all the Professors are given a turn, the rotation shall then be implemented among Readers as per seniority. It shall however be open to the teacher who has been nominated as the Head of the Department to make a request that he shall be relieved of such a responsibility for academic reasons. In such_ W.P.C.No.8116/2012 3 _case the next senior most teacher shall be the Head of the Department. To become eligible for considering for Headship, a teacher has to put in at least two years of service in the concerned Department, except in cases where there is no senior teacher in the Department. A teacher shall be eligible to take up Headship only if he/she has a minimum of 6 months service remaining till retirement. In Departments where there are no Professors or Readers, the Headship shall be rotated among the Lecturers. The other members of the teaching staff shall work under the direction of the Head of the Department and shall assist him in the performance of his duties.”_ 2. In regard to the 4[th] respondent, the contention of the petitioner is that she was appointed as a Reader of the University and by virtue of order dated 01/04/2008, she was promoted to the post of Professor with W.P.C.No.8116/2012 4 effect from 28/09/2006. Ext.P7 is the said order. The main contention urged by the petitioner is that though he was appointed as a Professor by Ext.P1 and he had joined duty on 27/12/2007 when the nomination of HOD had come on the previous occasion on 01/04/2009, he was overlooked and Dr.T.Rajamohan was nominated as the HOD. When he was expecting for nomination as HOD with effect from 01/04/2012 he filed the writ petition before this Court on 29/03/2012 anticipating a move on the part of University not to nominate him as HOD. But during the pendency of the writ petition, on 31/3/2012, Ext.P6 order came to be passed nominating the 4[th] respondent as the HOD. 3. The contention urged is that in so far as the petitioner is appointed by way of direct selection and the 4[th] respondent is appointed by way of promotion under the Career Advancement Scheme, both the appointment of the petitioner and the 4[th] respondent is under two different W.P.C.No.8116/2012 5 streams and therefore for all practical purposes, the petitioner should be treated as senior to the 4[th] respondent though in Ext.P7 her appointment is stated to be with effect from 28/09/2006 as she falls under a different category and the petitioner, by way of direct recruitment. Specific ground has been raised relying upon the judgment of the Supreme Court in **Rashmi Srivastava (Dr) v. Vikram University [1995(3) SCC 653]** . 4. Respondents 1 to 3 have filed counter affidavit inter alia contending that as far as nomination of HOD is concerned, it is on a rotational basis and the senior most among the Professors will initially be nominated as HOD and in the absence of the senior most Professor, the senior most Reader will have an opportunity and after exhausting the Readers the senior most Lecturer will be made HOD. Therefore, when the nomination is based on seniority in the post, the actual date of being appointed as Professor alone W.P.C.No.8116/2012 6 is to be considered for the purpose of nomination of HOD and it is not concerned with the actual seniority which comes under two different streams. Such a differentiation cannot be drawn in the case of nomination of HOD. 5. Ext.R1(a) is same as Ext.P7, which is relied upon to show that the senior most among the teachers/ Professors at that point of time when Ext.P6 came to be ordered is the 4[th] respondent and therefore there is no necessity to invoke the jurisdiction of this Court to set aside Ext.P6. 6. Though the 4[th] respondent did not file any counter affidavit, the learned counsel appearing on behalf of 4[th] respondent supported the stand taken by the University and contended that even going by Ext.P7, her appointment as Professor was made effective from 28/09/2006. Going by Statute 18 referred above, the 4[th] respondent alone can be appointed as the HOD. W.P.C.No.8116/2012 7 7. Heard Sri.George Poonthottam, learned counsel for the petitioner and, learned standing counsel appearing for University and the learned counsel appearing for the 4[th] respondent. Going by Ext.P7, apparently it is seen that the appointment of the 4[th] respondent is effective from 28/09/2006. But the argument of the learned counsel for the petitioner is that going by the judgment of the Supreme Court in **Rashmi** (Supra), distinct characteristics had been mentioned between two classes of employees especially directly recruited Readers and Professors and in connection with their promotion avenues. 8. Paragraph 39 and 40 of **Rashmi** (Supra) **,** reads as under: _**“39.** At this stage it would also be appropriate to consider whether the promotee Readers and Professors under the merit promotion scheme as recommended by the Commission and adopted by the University concerned, in the absence of any_ W.P.C.No.8116/2012 8 _statutory creation of a distinct and fresh source of recruitment by way of promotion, can be said to fall in the same class as directly recruited Readers or Professors. The answer becomes obvious. They cannot be said to be forming the same class. The following distinct characteristics between these two classes of employees become at once visible._ _(i) The directly recruited Readers and Professors fill up the vacancies in the cadres of Readers and Professors for which direct recruitment is resorted to. While the promotees under the merit promotion scheme stand outside the cadre and fill no posts as such, since no posts are created. The promotions given to them are purely personal and the posts to which they are upgraded do not survive their service career. The posts vanish with the incumbent person like the shadow vanishing with the substance. Such a promotee fills up no vacancy in the promotional avenue since no_ W.P.C.No.8116/2012 9 _post is available by promotion._ _(ii) The directly recruited Readers and Professors are recruited pursuant to the only source of appointment contemplated by Section 49, that is by way of direct recruitment. The promotee Readers and Professors are appointed not in the cadre posts but under an entirely different scheme, namely merit promotion scheme. Even under this scheme, no posts as such are created. Those selected under the scheme are given personal posts which cease with their employment. In fact, the posts from which they are promoted do not become vacant and none can be appointed to the said posts while they hold the higher posts._ _(iii) Pay scales of promotee Professors and Readers are different from the pay scales of directly recruited Readers and Professors at least after coming into operation of the career advancement scheme as seen earlier. To recapitulate, for direct recruit Readers revised pay scale with effect from 1-1-1986_ W.P.C.No.8116/2012 10 _is Rs 3700-5300 while the pay scale for promoted Reader is Rs 3000-5000. Pay scale of a direct recruit Professor is Rs 4500-7300 while the pay scale of a promotee Professor is Rs 4500-5700. It is also to be noted that as per the letter of Under Secretary, Department of Education dated 1-1-1989 the aforesaid difference in pay scales of merit promoted teachers is clearly brought out. It is of course true that as per the order of the Madhya Pradesh Government the pay scales of promotee Readers and Professors who were promoted prior to the enforcement of career advancement scheme were protected. But for such protection they would not have been entitled to pay scales of directly recruited Professors and Readers as revised under the scheme. This difference in the pay scales itself is a distinct feature so far as promotees under the merit promotion scheme on the one hand and the directly recruited Readers and Professors on the other hand are concerned._ W.P.C.No.8116/2012 11 _(iv) The promotee Readers and Professors are not holding any officiating or even temporary post of Reader or Professor nor is there any temporary addition to the cadre strength of Readers and Professors._ _(v) The workload of directly recruited Reader and Professor is different from the workload of promotee Reader or Professor for whom the workload of a Reader or Lecturer as the case may be would still have to be shared as no vacancies are created for being filled in the cadres from which such promotions are effected._ _(vi) There is a qualitative difference in the process of selection of direct recruits under the scheme of Section 49, as compared to the promotion of the merit promotees. Although for the latter the infrastructure of Selection Committee under Section 49 may be made available, the criteria for their promotion are entirely distinct and different as envisaged by the guidelines governing the merit promotion scheme._ W.P.C.No.8116/2012 12 _(vii) There is no question of promotee Reader or Professor being put on probation. There is further no question of confirming them in the posts concerned as they do not occupy any post as such in the promotional avenue. This is unlike the direct recruits._ _**40.** The aforesaid distinguishing features clearly indicate that merit promotee Professors and Readers form a distinct class of ex cadre or supernumerary appointees as compared to cadre employee, namely, directly recruited Readers and Professors. They are unequals not only because of the source of their appointment but also because of the nature and character of their appointment and of the nature of the posts which they hold. They cannot be treated equally for all purposes and particularly for seniority and promotion if any. For this purpose the nature of work they do is irrelevant. The competition for seniority can only be amongst those who are in the cadre posts. Otherwise, the mandate of Articles 14_ W.P.C.No.8116/2012 13 _and 16(1) would get violated. For these reasons, there would be no occasion to fix inter se seniority of merit promotee Readers and Professors and directly recruited Readers and Professors by treating them as forming one class. Any decision rendered by the University concerned not to discriminate between them in the matter of inter se seniority would be invalid in the absence of any statutory creation of a distinct source of recruitment by promotion by way of amending the parent Act. As the first respondent is governed by the Act which does not contemplate any statutory source of recruitment by way of promotion, whatever sentiments might have been expressed by the Executive Committee of the University for not distinguishing between directly recruited Professors and Readers on the one hand and promotee Readers and Professors on the other hand in the matter of seniority, have no legal efficacy. On the contrary, treating them on a par for seniority and_ W.P.C.No.8116/2012 14 _promotion is violative of Articles 14 and 16 (1) as we have seen above. It must therefore be held that the High Court was justified in taking the view that the action of the first respondent University in fixing inter se seniority of directly recruited Professors and Readers and merit promoted Readers and Professors on the yardstick of continuous officiation was illegal and unconstitutional.”_ 9. When a reference is made to paragraph 39 and 40 of **Rashmi** (Supra), there is clear indication that clearly indicates that merit promotee Professors and Readers form a distinct class of ex cadre or supernumerary appointees as compared to cadre employee, namely, directly recruited Readers and Professors. They are unequals not only because of the source of their appointments but also because of the nature and character of their appointment and of the nature of the posts which they hold. They cannot be treated equally for all purposes and particularly for W.P.C.No.8116/2012 15 seniority and promotions if any. 10. Another argument raised by the learned counsel for the petitioner on the basis of Section 10(13) of the Kerala University Act 1974 is that no reason had been stated in Ext.P6 to satisfy itself that the Vice Chancellor who exercises the emergency power, especially when the power is exercised by the Syndicate. Section 10(13) of the Kerala University Act 1974 reads as under : _10(13): If at any time, except when the Syndicate or the Academic Council is in session, the Vice-Chancellor is satisfied that an emergency has arisen requiring him to take immediate action involving the exercise of any power vested in the Syndicate or the Academic Council by or under this Act the Vice-Chancellor may take such action as he deems fit, and shall, at the next session of the Syndicate or the Academic Council, as the case may be report the action taken by him to that authority for such action as it_ W.P.C.No.8116/2012 16 ## _may consider necessary._ 11. The fact remains that the period of nomination of the previous HOD was going to be over on 31/03/2012. Though no specific reason had been pointed out by the Vice Chancellor to invoke Section 10(13) of the Kerala University Act, it is apparent from the face of record that there was an immediate necessity to nominate HOD, and therefore I do not think that there is any illegality on the part of the University in adopting such a method. That apart, nominating HOD on the basis of seniority is only a formal order and does not call for any substantial application of mind. The authority proceeded on the basis of Ext.P7 and found that the 4[th] respondent is the senior most and requires to be nominated. But, of course, ignoring the fact that the petitioner's appointment was in the direct recruitment quota and he gets better rights than a promotee. W.P.C.No.8116/2012 17 12. The learned counsel for the University pointed out that if the petitioner has any dispute the matter requires to be considered by the appellate Tribunal as provided under Section 73(3) of the Act. No doubt, if there is any dispute between any Officer or teacher of the University, it shall be referred to the appellate Tribunal for decision. The fact remains that after this Court had taken cognizance of the issues raised in the present writ petition, during the pendency of the writ petition Ext.P6 order came to be passed. That apart when it is brought to the notice of this court that an arbitrary decision is taken in the matter, even if an alternate remedy is available this court will be justified in interfering with such orders. Hence I do not think that this Court will be justified in relegating the parties to the Appellate Tribunal as there will be further delay in taking any decision in the matter. In that view of the matter, I am of the view that this court is entitled to consider the W.P.C.No.8116/2012 18 question especially when an interpretation of Statute 18 requires to be considered in the light of the judgment of the Supreme Court in **Rashmi** (Supra). 13. The argument of the learned counsel for the University is that in so far as this is not a case relating to seniority or promotions which was the subject matter in issue before the Supreme Court the law laid down in **Rashmi** (Supra) has no application. The argument is that the present case only relates to nomination of HOD coming under Statute 18 of Part III. It is not concerned with appointment to any vacancy on a promotion basis; but only nomination as HOD. The question for consideration is whether the provisions of Statute 18 in regard to interpretation of the word “senior most Professor” would give rise to the seniority fixed in respect of two cadres; one is directly recruited and the other by promotion from the cadre of Reader on the basis of Career Advancement W.P.C.No.8116/2012 19 Scheme. If it is just a case relating to seniority alone to be considered for promotion there cannot be any dispute that those two cadres are to be treated differently. But, in the present case, one has consider who is the next “Senior most Professor” in the department. If the Supreme Court has categorised direct recruitees as well as the Reader promoted Professors as two different categories, definitely one has to come to the conclusion that they are unequals and the direct recruitees stand in a better position than the Reader promoted Professor. 14. In that view of the matter, for all purposes I am of the view that the direct recruitee Professor has to stand in a better footing and if at all by Ext.P7 the effective date of seniority of the 4[th] respondent is treated to be with effect from a prior date than 27/12/2007 when the petitioner was appointed as Professor, still going by the Principle of law laid down by the Supreme Court in **Rashmi** (supra) one has to W.P.C.No.8116/2012 20 read into the provision of Statute 18 treating the Professor coming under the direct recruited cadre as “Senior most Professor” to a Professor coming as a promotee from the position of a Reader. That distinction apparently has not been considered by the University while issuing Ext.P6. 15. Having regard to the fact that I have already found that the petitioner is the Senior most Professor in the department in the light of the judgment in **Rashmi** (Supra), apparently the petitioner becomes entitled for becoming HOD as he is the direct recruitee and the opportunity of the 4[th] respondent will arise only after the direct recruitees are posted as HOD. Hence Ext.P6 is liable to be set aside. 16. It is submitted by the learned counsel for the University that the petitioner is also being considered for the post of Director of Health Services. The matter is pending before the University. Hence this matter is to be placed before the Syndicate in their next meeting. W.P.C.No.8116/2012 21 In the result, the writ petition is allowed. Ext.P6 is set aside. The respondent is directed to nominate the petitioner as HOD within fifteen days. In the light of the submission made by the learned counsel for University, if necessary, the University shall place the matter before the Syndicate in the next meeting and pass appropriate orders as expeditiously as possible. (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr ## W.P.C.No.8116/2012 22 ## W.P.C.No.8116/2012 23