Dr. Seraphi John v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR WEDNESDAY, THE 22ND DAY OF JULY 2015/31ST ASHADHA, 1937** ## **WP(C).No. 11164 of 2015 (U)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **DR.SERAPHI JOHN, AGED 50 YEARS, ASSISTANT PROFESSOR, ST. CYRIL'S COLLEGE CYRIL'S MOUNT, VADAKKATHUCAVU P.O., ADOOR** **BY ADVS.SRI.P.C.SASIDHARAN SRI. ARAVINDA KUMAR BABU T.K** **RESPONDENT(S):** **----------------------------** **1. STATE OF KERALA** - **REPRESENTED BY ITS SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM - 695 001.** **2. UNIVERSITY OF KERALA, THIRUVANANTHAPURAM, REPRESENTED BY ITS REGISTRAR.695 001** **3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOLLAM. 691 001** **4. THE MANAGER, ST.CYRIL'S COLLEGE, CYRIL'S MOUNT VADAKKADATHUCAVU P.O., ADOOR. 691 523** **5. THE PRINCIPAL AND DRAWING AND DISBURSING OFFICER, ST. CYRIL'S COLLEGE, CYRIL'S MOUNT VADAKKATHUCAVU P.O., ADOOR. 691 523** **R2 BY ADV. SRI.BECHU KURIAN THOMAS, SC, UNIVERSITY OF KERALA R1 BY GOVERNMENT PLEADER SRI.RINNY STEPHEN** ## **CHAMAPARAMPIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 11164 of 2015 (U)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-------------------------------------** **EXHIBIT-P1-TRUE COPY OF THE APPOINTMENT ORDER DATED 01/02/1990.** **EXHIBIT-P2-TRUE COPY OF THE ORDER GRANTING APPROVAL OF APPOINTMENT OF THE PETITIONER.** **EXHIBIT-P3-TRUE COPY OF THE ORDER OF APPOINTMENT ORDER DATED 01/06/2013.** **EXHIBIT-P4-TRUE COPY OF THE APPROVAL OF APPOINTMENT OF THE PETITIONER.** **RESPONDENT(S)' EXHIBITS: NIL** **---------------------------------------** **//TRUE COPY//** **P.S. TO JUDGE** **'C.R.'** ## **A.K.JAYASANKARAN NAMBIAR, J. ------------------------------W.P.(C).NO.11164 OF 2015 (U) ----------------------------------Dated this the 22[nd] day of July, 2015** ## **J U D G M E N T** The petitioner, who is a Doctorate holder in Malayalam, was appointed as Lecturer in Malayalam in the College under the management of the 4[th] respondent for a period from 1.2.1990 to 29.3.1990 in the leave vacancy that arose consequent to the then incumbent availing leave. The said appointment is stated to have been pursuant to a selection process that was conducted by the College in accordance with the University Rules, and the same was approved by the respondent University by Ext.P2 order. Thereafter, to a vacancy that arose consequent to the retirement of a teacher in Malayalam on 31.3.2013, the petitioner was appointed by placing reliance on Section 57(6)(b) of the Kerala University Act, 1974 [hereinafter referred to as the 'Act']. The said appointment, which is evidenced by Ext.P3 order dated 1.6.2013, was also approved by the University by Ext.P4 order dated 5.10.2013. When, despite the approval of the appointment of the petitioner, the 3[rd] respondent refused to counter sign the salary bills pertaining to the petitioner, that were forwarded by the 5[th] respondent, the petitioner approached this Court through the present writ petition seeking a direction to the **W.P.(C).No.11164/2015** **2** 3[rd] respondent to counter sign the salary bills so that the petitioner could receive salary. 2. Counter affidavits have been filed by the 1[st] respondent as also the 2[nd] respondent University. In the counter affidavit filed by the 2[nd] respondent University, the appointment of the petitioner to the vacancy that resulted consequent to the retirement of a teacher on 31.3.2013, is justified on the basis of Section 57(6)(b) of the Act. It is stated that inasmuch as the petitioner had obtained preferential right to future appointments in the College, consequent to the approval accorded by the University to the earlier spell between 1.2.1990 and 29.3.1990 when the petitioner worked as a Lecturer in Malayalam, the appointment of the petitioner to the subsequent vacancy, which arose consequent to the retirement on 31.3.2013, was in order. In the counter affidavit filed by the 1[st] respondent, however, objection is taken to the appointment of the petitioner to the said vacancy. It is in particular pointed out that the initial appointment of the petitioner as Lecturer in Malayalam was only to a temporary vacancy, and as such, it was Section 57(6)(a) that would govern the appointment of the petitioner and not Section 57(6)(b) of the Act. Alternatively, it is contended that even in terms of Section 57(6)(b) of the Act, the right obtained by the petitioner consequent to the earlier spell is only a **W.P.(C).No.11164/2015** **3** right to preference in the matter of future appointments in the College and not a right to get appointed as such. It is contended that, by virtue of the right obtained under Section 57(6)(b), the petitioner would be entitled to a preference over other candidates in a selection process that had to be necessarily conducted for determining the candidate who would be appointed to the post in question. A reply affidavit has also been filed by the petitioner refuting or traversing the averments in the counter affidavit filed by the 1[st] respondent. 2. I have heard the learned counsel for the petitioner, the learned Standing counsel for the respondent University as also the learned Government Pleader for the official respondents. 3. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that it is not in dispute that while appointing the petitioner as a Lecturer in Malayalam to the leave vacancy that arose between 1.2.1990 and 29.3.1990, the respondent had complied with a selection process as mandated by the provisions of the Kerala University Act, Rules and First Statues for selecting a candidate, and it was in that selection that the petitioner was selected and appointed to the leave vacancy. Section 57(6)(b) of the K.U.Act reads as follows: **W.P.(C).No.11164/2015** **4** _57. Appointment of teachers in private colleges:_ (6) Notwithstanding anything contained in this Act, the Statutes, Ordinances and Regulations made thereunder:(a) ............. (b) a teacher relieved from a private college on or after the 14[th] day of March, 1974, due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed or for any other reason except disciplinary action against him, shall be given preference in the matter of, future appointments in the private college or, as the case may be, any of the private colleges under the management of the educational agency within the University area. It will be clear from a reading of Section 57(6)(b) of the Act that the right that is conferred on a teacher, who was relieved from the College due to cessation of the period for which he was appointed, is one that gives him a preference in the matter of future appointments in the private college. It is relevant to note that the right that is conferred is not one that entitles him to a preferential consideration for appointment. The distinction is of importance because a selection process can have meaning only in a case where there are many persons applying for a post and they all have a right to be considered for appointment to the post in question. If, on the other hand, as in the instant case, there is only one person who has been given a preferential right to appointment to a future post, then there cannot **W.P.(C).No.11164/2015** **5** be a selection process envisaged for the purposes of giving effect to the right of that person. Thus, it cannot be said that, prior to giving effect to the right that accrued to the petitioner by virtue of Section 57(6)(b) of the Act, the petitioner had to undergo a fresh selection process for appointment to the post in question. There is yet another aspect of the matter. It is settled that once the University approves the appointment of a member of the teaching staff in a college, then the 3[rd] respondent has no option, but to effect payment of salary to the teacher in question by deferring to the decision of the respondent University to approve the appointment of the teacher in question. No doubt, if the 3[rd] respondent has a case that there was no sanctioned post to which the teacher could be appointed, or that the appointment of the teacher was to a post that could not have been sanctioned taking into account the work load recognised by the respondent University, it would have been open to the 3[rd] respondent to approach the respondent University with the said objection and await a decision of the respondent University on the same (See **Cherian Mathew v. Principal S.B. College, Changanassery [1998 (2) KLT 144]** and **State of Kerala and Others v. Dr. Sina A.R. and Others [2007 (3) KHC 96].** In the instant case, it is not in dispute that the 3[rd] respondent had not raised **W.P.(C).No.11164/2015** **6** any objection with regard to the approval of the appointment of the petitioner, and in that sense, it was not open to the 3[rd] respondent to refuse to counter sign the salary bills pertaining to the petitioner without first having raised any objection before the respondent University. Thus, in any view of the matter, the action of the 3[rd] respondent, in refusing to counter sign the salary bills forwarded to him by the 5[th] respondent, is improper. Resultantly, I allow the writ petition directing the 3[rd] respondent to counter sign the salary bills forwarded to him by the 5[th] respondent, insofar as it pertains to the salary payable to the petitioner, and disburse all consequential monetary benefits flowing from the said counter signature, within a period of two months from the date of receipt of a copy of this judgment. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** ## prp