Dr. Ing. Pyarilal S.K. v. Cochin University of Science and Technology and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932** **WP(C).No. 8931 of 2008(L)** **--------------------------------------** ## **PETITIONER(S):** **-----------------------** **DR. ING. PYARILAL S.K. READER IN SHIP DESIGN, DEPARTMENT OF SHIP TECHNOLOGY, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN-22.** **BY ADV. SRI.P.SANKARANKUTTY NAIR, SRI.T.V.AJAYAKUMAR.** ## **RESPONDENT(S):** **--------------------------** **1. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, REPRESENTED BY ITS REGISTRAR COCHIN-22.** **2. K.J. JAMES HEAD OF THE DEPARTMENT OF SHIP TECHNOLOGY COCHIN UNIVERSITY OF SCIENCE TECHNOLOGY COCHIN-22.** **R1 & R2 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI,SC,COCHIN UTY. SRI.RAJU JOSEPH, SC, SRI.SURIN GEORGE IYPE,SC,CUSAT,COCHIN UTY.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/08/2010,THE COURT ON 15/09/2010 DELIVERED THE FOLLOWING:** ## **WP(C) NO. 8931/2008-L** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE APPOINTMENT ORDER OF THE 2ND RESPONDENT DATED 08/04/1991.** **EXT.P2: COPY OF THE JUDGMENT IN W.A. NO. 3252/2005 DATED 24/05/2005.** **EXT.P3: COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 01/03/2007.** **EXT.P4: COPY OF THE ORDER DATED 07/12/2006.** **EXT.P5: COPY OF THE NOTIFICATION DATED 17/11/1989.** **EXT.P6: COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT DATED 01/06/2007.** ## **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY//** **P.S. TO JUDGE** **rs.** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 8931 of 2008-L** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 15[th] day of September, 2010.** ## **JUDGMENT** The petitioner challenges the appointment of second respondent as Reader in Ocean/Marine Engineering wing under the first respondent University. The petitioner is already working as Reader in Ship Design in the Department of Ship Technology. In fact, he was not an applicant to the post of Reader in the same Department to which the second respondent was appointed. Mainly, it is pointed out that the second respondent is treated as senior to him in the Department of Ship Technology and therefore the petitioner is aggrieved by the same. 2. Ext.P1 is the order by which, after a due process of selection, the second respondent and three others including the petitioner, were appointed in the respective posts in three different specialisations. But, the petitioner was appointed as Reader only on a temporary basis against a leave vacancy. Serial No.3 in Ext.P1 is one Shri P. Krishnankutty, who was appointed as Reader in Ship Design. Serial Nos.1 to 3 in Ext.P1 were appointed with effect from 8.4.1991 A.N., whereas the petitioner was appointed with effect from 22.4.1991 F.N. wpc 8931/2008 2 3. The petitioner challenged the appointment of Shri P.Krishnankutty before this Court in O.P.No.4588/1991 and ultimately the Writ Appeal filed by him was allowed in his favour, holding that the petitioner is entitled to be appointed in the post of Reader in Ship Design with effect from 8.4.1991. It is stated that Shri Krishnankutty filed an appeal before the Supreme Court which was dismissed and ultimately by Ext.P3 order dated 1.3.2007 the petitioner was appointed in the existing post of Reader. 4. The second respondent was appointed as Head of the Department of Ship Technology, by order dated 7.12.2006 (Ext.P4). According to the petitioner, the second respondent is not qualified to be appointed as Head of the Department as he does not have the basic qualification required for the appointment to the post of Reader. This is the background under which this writ petition has been filed. 5. Heard learned counsel for the petitioner, learned Senior Counsel appearing for the second respondent and the learned Standing Counsel appearing for the first respondent University. 6. The petitioner's contentions are two fold. The second respondent was having a B.Tech degree in Mechanical Engineering and only a wpc 8931/2008 3 Diploma in Marine Engineering and he had published only one article in a Student's Journal named “Shipstechnic” edited and published by the students of the Department of Ship Technology. This was based on the project work of his Diploma. Ext.P5 notification prescribes the qualification and according to the petitioner, in the absence of Doctor's Degree, a candidate can be considered only if he has to his credit equivalent research published work or design/development work of a high order either in an institution or industry. It is submitted that this is not satisfied by the second respondent, as he is having only a Diploma in Marine Engineering and published work is only one. 7. The second respondent has filed a detailed counter affidavit opposing the prayers of the petitioner. It is pointed out during arguments that the writ petition itself is not maintainable, as the petitioner was not an applicant to the post of Reader in the Department of Ocean/Marine Engineering and therefore he cannot have any direct or indirect grievance in the matter of appointment of the second respondent. It is further pointed out that as the post of Head of the Department is one being filled up on a rotation basis and, as there is no permanent appointment to the said post the allegation that the seniority is breached, is also not correct. It is pointed out wpc 8931/2008 4 that the petitioner has not challenged his appointment at any point of time even at the time of appointment, way back in 1991 and therefore, the writ petition is highly belated and is liable to be dismissed on that score itself. 8. The various aspects regarding the qualifications of the second respondent have been explained in para 3 of the counter affidavit as follows: “I had passed SSLC examination in 1[st] class. Pre-degree course also passed in 1[st] class. Thereafter joined Trivandrum Engineering College for B.Sc. Engineering (Mechanical) and passed with 1[st] class. I was thereafter appointed in the 1[st] respondent University as Lecturer in the Department of Ship Technology in June 1978. During February 1979, I was deputed to Rostock University, East Germany for post graduate studies and passed Diploma Ingeneure with 1[st] class and good grade in Marine Engineering in the year 1981. It is a course of 2 years duration and equivalent to Masters Degree in Engineering. During September 1981 I came back and rejoined in the Department of Ship Technology. While so in the year 1983 I was sent for one year training course in Marine Engineering in Cochin Port Trust. During the course of training programme in Cochin Port Trust I had undertaken design/development work as part of the training programme. I have published one article in Ship Technology in the journal named “Shipstechnic” published by the Cochin University. The article was on the basis of the research work I had done during when I was studying in Germany. Before completing my PhD I had to come wpc 8931/2008 5 back as I was recalled by the University due to paucity of teachers in the University Department. The petitioner also was studying in East Germany. But he did not return. Thereafter I had joined for part time MBA course in the Cochin University and passed MBA in 1988. In the year 1989 I joined Merchant Navy as 5[th] Engineer and worked for 9 months on leave from the University.” 9. According to the second respondent, normally he would have got promoted as Reader (Assistant Professor) within one year and at that point of time Ext.P5 notification was issued. According to him, he had completed his research work while he was in East Germany, but before submitting the thesis he had to return and join Cochin University as per the direction of the University. The said research work was published in the journal published by the Cochin University. He had one year training experience in Marine Engineering in Cochin Port Trust during which time he had undertaken design and development work. Thus, according to him, with Masters Degree in Marine Engineering and the above additional qualifications, he was fully qualified to be appointed as Reader in Marine Engineering. It is also explained that in India no University is conducting Masters Degree course in Marine Engineering and no University has ever awarded Ph.D. in Marine Engineering. wpc 8931/2008 6 10. It is also submitted that the petitioner had also secured admission in Rostock University, East Germany for higher studies and he obtained Ph.D. from that University in Naval Architecture without possessing Master's Degree and therefore he lacks qualification to be appointed in the post of Reader in Marine Engineering. In para 8 it is pointed out that both of them had studied in the very same University and the petitioner is very well aware of the course which the second respondent had undergone. The second respondent had passed Diploma in Ingeneure which is a Master's Degree and not a diploma course. The petitioner also did not go for Master's Degree and his Ph.D. is without Master's Degree and hence he lacks basic qualification of Master's Degree. 11. The Standing Counsel for the University also explained that the challenge made by the petitioner is highly belated and the selection committee was satisfied about the qualification of the petitioner. 12. The first question to be considered, therefore, is whether the writ petition is highly belated and whether the petitioner is really aggrieved by the appointment of the second respondent. What is projected in the writ petition is that the second respondent cannot be treated as senior to him based on his alleged lack of qualification for appointment itself. It is quite wpc 8931/2008 7 important to notice that the writ petition is filed only in the year 2008, whereas the second respondent was appointed as per Ext.P1 order with effect from 8.4.1991. The petitioner was also appointed as per Ext.P1 on a temporary basis. Of course, his application for appointment was not in Marine Engineering Wing. It is the case of the petitioner in the writ petition that the petitioner could not have challenged the appointment of the second respondent earlier and prior to his appointment as per Ext.P3. This contention is based on the premise that he was not an applicant in the Marine Engineering Wing. If he was not an applicant for appointment in that Wing and was not therefore directly interested in the matter, the same handicap for challenging the appointment of the second respondent will be there even now, since he cannot have any direct grievance with regard to the appointment of the second respondent. Evidently, the second respondent's appointment was treated as valid in the absence of any challenge also. The nomination of the second respondent as Head of the Department is also prior to the order Ext.P3, whereby the petitioner was appointed in the department itself on a permanent basis, pursuant to Ext.P2 Judgment. Therefore, the same also cannot be a cause of action for filing this writ petition, especially since it is explained by the respondents that the wpc 8931/2008 8 nomination of the Head of the Department is only on a rotation basis and it does not carry any other permanent service benefits also, except carrying on the administration of the department during the tenure. The petitioner was also nominated likewise in 2009 but had to resign, after which one Shri D. Narayanan was nominated as Head of the Department who is continuing now. In that view of the matter, as contended by the learned Senior Counsel for the second respondent, the writ petition is highly belated and the petitioner cannot have any real grievance against the appointment of the second respondent as they are in two different Wings and this writ petition is not one filed as a public interest litigation also. Apart from that, the petitioner had filed O.P.No.4588/1991 immediately after Ext.P1 order was passed, challenging the appointment of Shri K. Krishnankutty. At that point of time also he did not challenge the appointment of the second respondent. Therefore, these aspects would really go against the maintainability of the writ petition itself, as the petitioner cannot be said to be really aggrieved by the appointment of the second respondent. 13. The next question is whether the second respondent is not qualified for appointment in the Marine Engineering Discipline. The qualification for the post of Reader, as contained in Ext.P5, reads as wpc 8931/2008 9 follows: “A good academic record with a Doctor's Degree in a relevant field. About 5 years experience of teaching/or research and development. Provided further that candidates not possessing Ph.D. may be considered if they have to their credit equivalent research published work or design/development work of a high order either in an institution or industry ## OR In the case of persons to be recruited from the industry or professional fields, candidates should possess good academic record with recognised professional work of about 7 years which should include innovation and/or research and development.” What is essential is a good academic record with Ph.D in the relevant field and about five years experience of teaching/or research and development and going by the proviso, a candidate who is not possessing Ph.D could be appointed if he has to his credit equivalent research published work or design/development work of a high order either. The contention raised by the learned counsel for the petitioner is that the second respondent is only having a diploma and the lone publication will not be helpful to him. Herein, the aspects pointed out by the second respondent are relevant. He was appointed in the Department of Ship Technology in June, 1978 as Lecturer. He was deputed to Rostock University, East Germany for post wpc 8931/2008 10 graduate studies and passed Diploma Ingeneure with 1[st] class and good grade in Marine Engineering in the year 1981. It is emphasised that the course is for 2 years and is equivalent to Master's Degree in Engineering which fact is not disputed by the petitioner. After he came back in the year 1981 and joined the Department of Ship Technology, he was sent for one year training course in Marine Engineering in Cochin Port Trust. Based on the research work he had done during his study in Germany, he published an article. He had to come back without completing Ph.D as he was recalled by the University due to paucity of teachers in the University Department, whereas the petitioner did not choose to return. He had also acquired MBA by attending the part-time course in the year 1988 and again he worked for nine months in Merchant Navy as 5[th] Engineer after taking leave from the University. 14. The petitioner stresses the fact that the second respondent is not having any Master's Degree, whereas the second respondent has clearly stated the fact that diploma is equivalent to Master's Degree. If that be so, the defect, if any, pointed out by the petitioner, viz. absence of Master's Degree cannot be accepted. He has got various academic records also as stated earlier and going by Ext.P5, what is mentioned is “good academic wpc 8931/2008 11 record with a Doctor's Degree in a relevant field.” Going by the proviso, persons who are not having Doctor's degree can be considered, if they have got good academic record and has got a research published work. Herein, based on the research work done by him, he published an article in the journal of the University. Evidently that was accepted as sufficient for the purpose of the proviso, by the University. Normally, the decision of an academic body in these matters cannot be upset by this Court. 15. Learned counsel for the petitioner relied upon a decision of this Court in **Manamma Chacko v. University of Kerala** (1982 KLT SN page 39, Case No.62) to the effect that the publication of research work should be after acquiring the Master's degree concerned. The crucial paragraph in the said decision states as follows: “I am also impressed by the contention of the petitioner that as per Ext.P1 a second class Master's Degree in the subject concerned with not less than 50% marks could be taken into account only if the candidate has got Ph.D. Degree or published research works of a high standard. More or less, the research work is taken as-at the same level-as a doctorate. A research work of whatever quality of a candidate while she is studying for the Master's Degree though the research work may be independent, is not what is contemplated. In the context in which is appears what is contemplated by the wpc 8931/2008 12 expression 'published research work of a high standard' can only mean a research work of such a high quality done by a candidate after taking his or her Master's Degree in the subject. While it is none of the functions of a court of law to fill up or rectify gaps and lacunas in a statutory instrument, law being an objective thing, courts of law can take a reasonable view of the provisions in such a manner so as to make them logical. The true meaning of any passage is to be found not merely in its words but in the context in which it appears which would certainly lend colour to the meaning of the same.” Evidently, the qualification that is mentioned therein and the qualification that is mentioned in Ext.P5 are quite different. It is not the requirement in Ext.P5 that the publication should be after acquiring the Master's Degree, etc. What is mentioned as qualification for the post of Reader, is “good academic record”. Therefore, the dictum laid down in the above decision will not apply to the facts of this case. 16. The second respondent has pointed out that the petitioner is also not having any Master's Degree before acquiring Ph.D. This aspect is also not denied by the petitioner by filing a reply affidavit. I am not called upon to decide the qualification of the petitioner as such, but the learned Senior Counsel for the second respondent explained that the petitioner was fully wpc 8931/2008 13 aware that the Diploma Ingeneure is equivalent to a Master's Degree and not a Diploma course and therefore, the second respondent satisfies the qualifications for the post of Reader. I find force in the above submission also. 17. The petitioner's contentions mainly are concentrated on the aspect of the seniority conferred on the second respondent in the department. Going by Ext.P3 order of appointment also, the petitioner will be deemed to have been appointed from 8.4.1991. Therefore both of them were appointed on the same date now. The second respondent appears to be senior, going by his age also. The question is whether the sit back theory applies here. The said principle is well known and has been reiterated in various decisions. In **Satheesh Kumar v. Travancore Devaswom Board** (2009 (2) KLT 828) I had occasion to consider the applicability of the principle in para 24 as follows:- “The other contentions raised by the learned counsel for the petitioners is based on the sit back principle enunciated in Rabindra Nath Bose's case (AIR 1970 SC 470) and followed in a large number of cases. In the above case, their Lordships held in para.35 that “each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.” This principle was wpc 8931/2008 14 restated in _State of Kerala's case_ (2001) 6 SCC 292). A Division Bench of this Court in _Usha Devi's case_ (2002 (1) KLT 615) while considering a question whether in the absence of a challenge against the seniority at the appropriate time, whether it could be considered after along lapse of time, held that “erosion of rights by passage of time is a principle well recognised in law. By resorting to complacency over a span of years, the petitioner has lost whatever rights she had to challenge the 'irregular' assignment of seniority to her juniors. It is clear that the contention is merely self serving. The seniority of a person once recognised, remained as a right throughout, and was not liable to be brushed aside at the fancy of a third person, and at his will.” A Full Bench of this Court examined the same question in **Pavithran v. State of Kerala** (2009 (4) KLT 20 (FB), and the position was reiterated in the following words in para 8: “It is a well settled principle in Administrative Law that, there are no void orders in absolute sense in administrative matters. There are only voidable orders. Unless a person aggrieved take recourse to the appropriate remedy at the appropriate time, even an illegal order will be treated as valid and binding. See the observations of Wade in Administrative Law, 6[th] Edn. “The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash wpc 8931/2008 15 it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another. A common case where an order, however void, becomes valid is where a statutory time limit expires after which its validity cannot be questioned. The statute does not say that the void order shall be valid; but by cutting off legal remedies it produces that result.” The above statement of law has been quoted with approval by the Apex Court in several decisions, and one of them is _State of Punjab v. Gurdev Singh_ (1992 (1) KLT SN 28 (C.No.37) SC = (1991) 4 SCC 1). We notice that Exts.P2 and P3 orders were passed by competent statutory authorities. They could have granted the reliefs sought by the sixth respondent, but, they have declined to do that. The sixth respondent has not chosen to challenge those orders before the higher forum or this Court and as mentioned earlier, he allowed them to become final. Therefore, those orders are to be treated as valid. they cannot be ignored or treated as void _ab initio_ and therefore, of no effect now. It is a well settled principle in service jurisprudence that, a person who enjoyed a seniority position for quite some time is entitled to sit back. The seniority position shall not, normally be disturbed lightly.” 18. Therefore, any person who has been appointed pursuant to an order of appointment and has obtained seniority can really rely upon this principle to ward off the challenges made by any other person after a long wpc 8931/2008 16 number of years. In that view of the matter also, the petitioner's contentions cannot be accepted. I am not satisfied therefore that the second respondent lacks qualification in being appointed as Reader in the discipline 'Ocean Engineering/Marine Engineering'. Apparently, a selection body of the University selected the second respondent after being satisfied about the qualifications and the good academic record, etc. and this Court will be loath to interfere with such matters and the decision of the academic body is bound to be treated as valid. For all these reasons, the writ petition fails and the same is dismissed. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**