## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE AMIT RAWAL**
## **TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943**
**WP(C) NO. 24876 OF 2011**
## **PETITIONER:**
DR.K.K.JOSE ASST. PROFESSOR, ST.THOMAS COLLEGE, PALA, RESIDING AT KARIPPAKUDIYIL HOUSE, RAMAPURAM BAZAR P.O, 686 576.
BY ADVS. BABY ISSAC ILLICKAL ISAAC KURUVILLA ILLIKAL
## **RESPONDENTS:**
1 MAHATMA GANDHI UNIVERSITY KOTTAYAM 686 560, REPRESENTED BY ITS REGISTRAR 2 VICE CHANCELLOR MAHATMA GANDHI UNIVERSITY, KOTTAYAM 686 560 BY ADVS. SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY SHRI.SURIN GEORGE IPE, SC, M.G.UNIVERSITY
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **JUDGMENT**
Exts.P5 and P16 orders dated 16.6.2007 and 9.8.2011 have been challenged on behalf of the petitioner. The facts in dispute in a narrow compass are that while working as a lecturer (selection grade) at St.Thomas College, Pala, petitioner applied for the pots of Director, Department of Student Service under the Mahatma Gandhi University - 1[st] respondent. The aforementioned application was submitted in pursuant to the notification dated 26.12.2002. The qualification for the post was post-graduation Degree I or II class, experience in teaching in a University or a college for 7 years and experience in organizing approved students service activities for atleast 3 years. The syndicate in the meeting held on 04.04.2005 approved his appointment and joining report was submitted on 05.04.2005. His Probation period vide order dated 16.06.2007 (Ext.P5) was completed with effect from 05.04.2006 ie., after a period of one year in accordance with Chapter IV Part I Clause 10 of the Mahatma Gandhi University Statutes, 1997. The controversy/grievance started from the aforementioned order in as much as that the petitioner was under the impression that his appointment was that of a
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teacher and not non-teaching post as Chapter IV pertains to the non-teaching post. The period of retirement of non-teaching staff in the Mahatma Gandhi University was 55 years whereas of teaching, 60 years. Realizing that the petitioner’s probation was considered under Chapter IV an application Ext.P11 dated 26.12.2007 was submitted to the Vice Chancellor for seeking relief for relieving him from the post of Director of Students Services with effect from after noon dated 28.12.2007 to join the duty with effect from 29.12.2007 at St. Thomas College for retaining the lien of lecturer in the department of Politics. Respondent University vide order dated 28.12.2007 (Ext.P12) accepted the application by granting the accord of relieving by retaining the lien which was subsequently withdrawn, though there is a pleading, but copy of the order has not been attached.
2. Sri.Baby Issac Ilikal, learned counsel for the petitioner submitted that post of Director of Department of Students services was basically that of a teaching as evident from Ext.P2 decision dated 10.08.1993 of the Mahatma Gandhi University. But for the reasons best known probation was considered under Chapter IV pertaining to non-teaching staff. Since the petitioner
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had sought the permission for retaining the lien, he cannot be estopped from raising the plea of completion of the probation to be under Chapter III pertaining to teaching staff. In support of the aforementioned submissions relies upon _**Sivasankara Kaimal**_ v. _**University of Calicut**_ [2003(1) KLT 146] whereby the coaches appointed by the University for different games and athletics were treated as teachers of the University and therefore permitted to be continued to the age of 60 years as per Section 2(28) and 2(27) of the Calicut University Act, as also _**Usha**_ v. _**M.G.University**_ [2009 (1) KLT 304] whereby the post of the Director of Department of Printing and Publishing, Mahatma Gandhi University was considered to be a teaching post.
3. On the contrary, Sri.Surin George Iype, learned counsel appearing on behalf of the respondents submitted that the petitioner has not come to the court with clean hands as subsequent to the relieving order Ext.P12 dated 28.12.2007 University had withdrawn the aforementioned order of retaining the lien which was challenged by this Court in W.P. (C).No.17311/2008. This Court vide judgment dated 24.09.2008 dismissed the writ petition by holding that the petitioner’s
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appointment and declaration of successful completion of the probation was under Chapter IV of the Mahatma Gandhi University Statutes. It was held that withdrawal of the lien would only be treated to be loosing the lien in the University but would not affect carrying on the teaching job in the St.Thomas College, Pala. Petitioner did not challenge the order of completion of probation as evident from the contents of the request Ext.P11. Thus writ petition is liable to be dismissed with exemplary costs.
4. I have heard the learned counsel for the parties and appraised the paper book.
5. The factum of the petitioner having been appointed as the Director of the Students Services with effect from 05.04.2005 in a particular pay scale is not in dispute. Purported cause of action accrued in favour of the petitioner only on receipt of the communication dated 16.06.2007 (Ext.P5) whereby probation after a period of one year was completed with effect from 05.04.2006 as per the provisions of Chapter IV Part I Clause 10 of the Mahatma Gandhi University Statutes, 1997. The aforementioned Chapter IV deals with non-teaching staff. Petitioner drew the inference that he would not continue till the
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age of 60 as the respondent University considered his appointment as non-teaching. Without challenging the aforementioned part accepted the position by submitting an application for relieving from the duty as evident from the contents of Ext.P11. The prayer clause of Ext.P11 reads as under:
“Hence I request your goodself to be gracious enough to issue necessary orders relieving me from the post of director of student services with effect from the after noon of 28.12.2007 to join duty w.e.f. 29.12.2007 F.N. at St.Thomas College, Palai where I have a lien as Lecturer Selection Grade in the Department of Politics by maintaining my lien as Director of Student Services at Mahatma Gandhi University, Kottayam.”
6. Respondent University accepted the prayer and relieved him by retaining the lien which subsequently withdrawn and upheld by this Court in judgment referred to above. There is no dispute to the _ratio decidendi_ culled out in the judgments relied upon, but the facts of the case would reveal that there was no such request on behalf of incumbents for relieving from the duty which tantamount to accepting the terms and conditions of the appointment; the facts are not applicable to the present case
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and accordingly I do not find any justification for granting interference under Article 226 of the Constitution of India. This writ petition is accordingly dismissed.
## **Sd/-**
**AMIT RAWAL JUDGE**
nak
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## **APPENDIX OF WP(C) 24876/2011**
PETITIONER EXHIBITS
Exhibit P1 PHOTOCOPY OF THE NOTIFICATION DT.26.12.2002 OF THE UNIVERSITY
- Exhibit P2 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DT.10.8.1993
Exhibit P3 PHOTOCOPY OF THE APPOINTMENT ORDER DT.20.4.2005
- Exhibit P4 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DT.16.11.2005
- Exhibit P5 TRUE COPY OF THE JUDGMENT DATED 6/1/2011 PASSED BY THE 5TH RESPONDENT TRIBUNAL
- Exhibit P6 PHOTOCOPY OF THE REPRESENTATION OF THE PETITIONER TO THE 1ST RESPONDENT DT.26.6.2007
- EXHIBIT P7 PHOTOCOPY OF THE REPRESENTATION OF THE PETITIONER TO THE 2ND RESPONDENT DT.22.11.2007
- EXHIBIT P8 PHOTOCOPY OF THE REPLY OF THE 1T RESPONDENT DT.3.12.2007
- EXHIBIT P9 PHOTOCOPY OF THE RELEVANT PAGE OF THE KERALA UNIVERSITY FIRST ORDINANCE 1978
- EXHIBIT P10 PHOTOCOPY OF THE REQUEST OF THE PETITIONER TO THE VICE CHANCELLOR DT.8.12.2007
- EXHIBIT P11 PHOTOCOPY OF THE REPRESENTATION OF TEH PETITIONER TO THE 2ND RESPNDENT DT.26.12.2007
- EXHIBIT P12 PHOTOCOPY OF THE ORDER OF THE 1T
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RESPONDENT DT.28.12.2007
- EXHIBIT P13 PHOTOCOPY OF THE REPRESENTATION OF THE PETITIONER TO THE 2ND RESPONDENT DT 10.1.2008
EXHIBIT P14 PHOTOCOPY OF THE JUDGMENT IN WPC NO.3947/2008 DT 11.3.2011
- EXHIBIT P15 PHOTOCOPY OF THE REPRESENTATION OF THE PETITIONER BEFORE THE 2ND RESPONDENT DT.7.4.2011
- EXHIBIT P16 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DT.09.8.2011
- EXHIBIT P17 PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THEUNIVERSITY IN WPC NO.24756/2007 DT.31.10.2007
EXHIBIT P18 PHOTOCOPY OF THE NOTIFICATION FOR THE APPOINTMENT TO THE POST OF DIRECTOR, PRINTING AND PUBLISHING DT.14.4.2007
