Dr. P. K. Dharmapalan v. D. Sheela and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 5TH DAY OF JANUARY 2018 / 15TH POUSHA, 1939 WA.No. 21 of 2018 IN WPC. 19963/2017 AGAINST THE ORDER/JUDGMENT IN WP(C) 19963/2017 of HIGH COURT OF KERALA DATED 19-12-2017 ## APPELLANT(S)/6TH RESPONDENT: DR.P.K.DHARMAPALAN, AGED 59 YEARS,S/O.P.M.KUTTAPPAN,PROFESSOR AND HEAD OF THE DEPARTMENT,DEPARTMENT OF KAYACHIKITSA,VAIDYARATNAM AYURVEDA COLLEGE, OLLUR-THAIKKATTUSSERY,THRISSUR.RESIDING AT "ASWINI NILAYAM",PERUMANATH HOUSE, KIZHAKKUMPAPTTUKARA,THRISSUR-680 005. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SMT.ASHA BABU SMT.R.S.ASWINI SANKAR ## RESPONDENT(S)/PETITIONER & RESPONDENTS 1 TO 5: 1. DR.D.SHEELA, PROFFESSOR,DEPARTMENT OF PRASUTI THANTRA, VAIDYRATNAM AYURVEDA COLLEGE,OLLUR-THAIKKATTUSSERY, THRISSUR-680 306. 2. VAIDYARATNAM AYURVEDIC EDUCATIONAL SOCIETY, OLLUR-THAIKKATTUSSERY,THRISSUR-680 322,REPRESENTED BY ITS SECRETARY. 3. THE KERALA UNIVERSITY OF HEALTH SCIENCES, MULAMKUNNATHUKAVU,THRISSUR-680 581,REPRESENTED BY ITS REGISTRAR. W.A. No. 21/2018 : 2 : 4. STATE OF KERALA, - REPRESENTED BY THE SECRETARY TO GOVERNMENT, - DEPARTMENT OF AYUSH, SECRETARIAT,THIRUVANANTHAPURAM-695 001. 5. THE MANAGER, - VAIDYARATNAM AYURVEDA COLLEGE,OLLUR-THAIKKATTUSSERY, THRISSUR-680 306. ## 6. MR.M.G.RAMACHANDRAN, PROFESSOR,DEPARTMENT OF SALAKYA THANTRA, VAIDYARATNAM AYURVEDA COLLEGE,OLLUR-THAIKKATTUSSERY, THRISSUR-680 306. R BY SRI.S.P.ARAVINDAKSHAN PILLAY R BY SRI.ASOK M.CHERIAN R BY SRI A.J. VARGHESE, SR. GOVERNMENT PLEADER R BY SRI.P.K.MANOJKUMAR R BY SRI.P.SREEKUMAR, SC THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K. SURENDRA MOHAN & ANNIE JOHN, JJ.** **-------------------------------------------** ## **W.A. No. 21 of 2018** **-----------------------------------------Dated this the 5[th] day of January, 2018.** ## **JUDGMENT** ## K. Surendra Mohan,J. The additional 6[th] respondent in W.P.(C) No. 19963 of 2017 is in appeal against the judgment of the learned single Judge dated 19.12.2017 allowing the writ petition. The learned single Judge has directed the first respondent, who is the Senior most Professor working in the college of the 5[th] respondent, to be promoted to the post of Principal of the College and permitted to assume charge of the post. The needful was directed to be done within a period of three weeks from the date of receipt of a copy of the judgment. 2. The brief facts of the case are the following: The first respondent filed the writ petition complaining that despite being the senior most Professor in the fifth respondent's college, she was not being appointed as the Principal of the college. According to her, as per Section 58 of the Kerala University for Health Sciences Act, 2010 read with Section 57 of the Kerala University Act, 1974, she was entitled to be appointed as Principal on the basis of seniority and fitness. It was pointed out that the Management had been continuously appointing the senior most Professor as Principal, and that a discrimination was being made only in the case of the first respondent. Therefore, she sought for the issuance of appropriate W.A. No.21/2018 -2- directions. The writ petition was contested by the appellant as well as the other respondents. 3. The learned single Judge considered the respective contentions and found that the first respondent, who is due to retire from service on attaining the age of superannuation in April, 2018, being the senior most Professor, was entitled to be appointed as Principal. Accordingly, she has been ordered to be so appointed. 4. According to the Senior Counsel Sri. K. Ramkumar who appears for the appellant, appointment to the post of Principal is not to be made in a routine manner by promoting the senior most Professor. The post of Principal being the pivotal post in the functioning of the college, the management is entitled to consider the suitability of the person. It is only in cases where a person is found to be fit to hold the post, promotion as Principal would be granted. In the present case, it is contended that no such exercise has been undertaken by the Management. Therefore, according to the Senior Counsel, the learned Single Judge ought to have directed the Management to consider the matter, instead of issuing a direction to promote the first respondent. It is the contention of the learned Senior Counsel that the Court has, in exercise of its jurisdiction under Article 226, assumed the power of the Management to select the Principal of the College. The said judgment, according to the learned senior Counsel, is unsustainable, liable to be W.A. No.21/2018 -3- interfered with and set aside. 5. We have heard the learned senior Counsel, Sri N. Nandakumara Menon, who appears for the first respondent, Sri. S.P. Aravindakshan Pillay, who appears for respondents 2 and 5, Sri Ashok M. Cherian, who appears for the 6[th] respondent and Sri. P. Sreekumar, who appears for the third respondent. 6. According to the learned senior Counsel, Sri. N. Nandakumara Menon, the first respondent is the senior most Professor of the College. She had functioned as the Vice Principal of the College from 20.07.2010 to 16.06.2016 and as the Hospital Superintendent from 20.07.2010 to 09.01.2014. She has also held additional charge of the Principal from 24.01.2011 to 22.04.2011. There has not been any instance of a complaint being made about the first respondent in the manner of her discharge of duties, at any time. In the absence of anything on record to show that she was unfit to hold the post of Principal, it was only in the fitness of things that she has been directed to be promoted by the learned single Judge. 7. The learned Government Pleader points out that against the two writ petitions disposed of by the judgment appealed against, only one appeal has been filed; the judgment in W.P.(C) No. 19963 of 2017, thereby attracting the bar of _res judicata,_ in so far as the judgment with respect to the other writ petition has become final. W.A. No.21/2018 -4- 8. Heard. It is not in dispute that the first respondent is the senior most Professor of the College. We notice that she is a person, who has been holding the charge of the post of Principal. She has functioned as the Vice Principal and Hospital Superintendent during different periods of time without any complaint from any quarter. The question therefore, is whether there is anything on record to show that she is ineligible to be appointed as the Principal. The learned Senior Counsel has placed reliance on the decision of a Full Bench of this Court in _**Suresh v. Manager, S.N.M College**_[1] . After considering the question as to how and on what basis the Principal of a private college should be selected and appointed, the Full Bench has summarised the position of law in paragraph 47 of the judgment as follows: “In view of the above, it is held that: 1. S.59(3) of the Act provides that appointment to the post of Principal of a Private College can be made by promotion from amongst the teachers of the College or by direct recruitment. The direct recruitment has to be made by advertisement of the post. When the management decides to fill up the post by direct recruitment, it may be entitled to make selection. It can choose the best person out of the available candidates. 2. So far as the appointment by promotion is concerned, the provision has been made in S.59(3). It has been specifically provided that “the educational agency shall make the appointment on the basis of seniority-cum-fitness”. These words of the Act have to be given their plain and natural meaning. The provision is couched in a mandatory language. The use of the word 'shall' makes it imperative for the management to follow the prescribed criteria. In the context, the word 'shall' cannot be interpreted to mean 'may'; for, that would lead to an anomalous situation. The Legislature appears to have clearly 1 2003(3) KLT 839 W.A. No.21/2018 -5- intended that the discretion of the management should be restricted. The senior person should be promoted unless he is found to be unfit for the post of Principal. 3. There appears to be good ground for the restriction. The obvious intention was that if a teacher had worked for a long period of time and there was nothing against him, then, his aspiration to be the Head of the institution should be fulfilled. The benefit should be denied only when he is found to be unfit. Not otherwise. In an educational institution, there is a need to keep the environment congenial. If junior persons are arbitrarily allowed to supersede the seniors, there can be a lot of avoidable heartburn. It can cause frustration. It can pollute the environment of the institution. To check this, the Legislature has given a limited discretion to the management. It can reject a senior person only if he is found to be unfit. 4. It is true that the post of Principal of a College is pivotal. A bad teacher may not be able to administer an institution. However, the management has been given the discretion to supersede a senior person, if he is found unfit. This discretion can be exercised by the management on the basis of good reasons. Since the Act provides for the remedy of appeal before an Appellate Tribunal against an order of supersession, it would be incumbent on the management to given reasons for the supersession of a senior person. The reasons cannot be fanciful or imaginary. These must have a nexus with the fitness of the candidate for the post and should be founded on tangible material. 5. The view taken by the Full Bench in the cases of _Mother Provincial_ and _Gregarious_ is no longer sustainable in view of the latest pronouncement of their Lordships of the Supreme Court in the case of _Lt. General Kadyan_ .” 9 A perusal of the above shows that though the management has got a right to fill up the post of Principal by resorting to direct selection, as far as appointment by promotion is concerned, the criteria to be adopted is “seniority cum fitness”. The learned Senior Counsel has also placed reliance on a decision of a single Judge of this Court in _**Harikuttan v. Travancore Devaswom Board**_[2] , wherein it has been 2 2011(3) KLT SN 51 (C. No. 47) W.A. No.21/2018 -6- held that it is necessary for the the Management to carry out an exercise of selection on the basis of “seniority cum fitness”. Section 58 of the Kerala University for Health Sciences Act, 2010 makes the provisions of Sections 51 to 68 of the Kerala University Act, 1974 applicable in respect of aided colleges and private aided colleges affiliated to the University. As per Section 57 of the Kerala University Act, 1974, where appointment of Principal is made by promotion, such appointment shall be on the basis of the seniority cum fitness. 10. As already noticed above, in the present case, the Management does not have a case that the first respondent is unfit in any manner. The learned Single Judge has taken note of the above fact. She is due to retire from service on 30.04.2018. As noticed by the Full Bench in the case of _Suresh_ (supra), it is the aspiration of every teacher, who has worked in an Institution for a long time, to retire as the Head of the Institution and, if there is nothing to show that the seniormost person is incompetent to hold the post, it is only appropriate that such person is promoted to the post of Principal. Bearing the above principle in mind, it has to be held that, the first respondent was entitled to be promoted as the Principal of the College. We do not find any infirmity in the order of the learned Single Judge directing the first respondent to be promoted. Though it is contended by the learned Senior Counsel that, this Court has assumed the role of the Manager in directing the first W.A. No.21/2018 -7- respondent be promoted, we notice that respondents 2 and 5, who represent the Management, have no such complaint. In fact, no appeal has been filed by them. This appeal is filed by the rival claimant to the post of Principal. Therefore, we do not find any substance in the said contention. It is necessary to mention that, even before us, the Management has no contention that the first respondent is incompetent to hold the post of Principal. For the above reasons, we find no grounds to admit this writ appeal. The same is accordingly dismissed. **K. SURENDRA MOHAN, JUDGE.** **ANNIE JOHN, JUDGE.** _Rv_ W.A. No.21/2018 -8-