K. REHUMATHULLA v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **WEDNESDAY, THE 12TH NOVEMBER 2008 / 21ST KARTHIKA 1930** **WP(C).No. 17039 of 2008(C)** **----------------------------------------** ## **PETITIONER(S):** **-------------------------** **K. REHUMATHULLA (FORMERLY LECTURER IN MATHEMATICS T.K.M COLLEGEE FOR ENGINEERING KOLLAM) NOW RESIDING AT T.C. NO. 12/290, 'AL NOOR', J.N.P LANE, PLAMOOD, PATTOM, THIRUVANANTHAPURAM-4.** **BY ADV. SRI.KRB.KAIMAL (SR.) SRI.ANIL K.NAIR SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN** ## **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM.** **3. THE UNIVERSITY OF KERALA, REPRESENTED BY THE REGISTRAR, UNIVERSITY OF KERALA, TRIVANDRUM.** **4. THE CHAIRMAN, GOVERNING BODY, T.K.M COLLEGE OF ENGINEERING, KOLLAM.** **GOVERNMENT PLEADER SMT. M.K.PUSHPALATHA FOR R1 & 2 ADV. SRI.M.RAJAGOPALAN NAIR, SC, UTY OF KERALA FOR R3 SRI.N.SUGATHAN FOR R4 SRI.S.PRASANTH (AYYAPPANKAVU) FOR R4 SMT.VARSHA BHASKAR FOR R4** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.17039/2008 C** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE ORDER NO.E2-1968/99 DTD. 7/06/1999 ISSUED BY THE 4TH RESPONDENT. EXT.P2: COPY OF THE ORER NO.Ac-F.1-36224/98 DTD. 7/12/1999 ISSUED BY THE 3RD RESPONDENT. EXT.P3: COPY OF THE ORDER NO.DP2/44782/99/K.DIS. DTD. 6/01/2000 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE ORDER NO.DP2/26400/2000 DTD. 24/07/2000 ISSUED BY THE 2ND RESPONDENT. EXT.P5: COPY OF THE NO OBJECTION CERTIFICATE NO.E2/971/2007 DTD. 2/05/2007 ISSUED BY THE PRINCIPAL T.K.M.ENGINEERING COLLEGE, KOLLAM TO THE PETITIONER. EXT.P6: COPY OF THE MEMO NO.AD.H/2906/2007 DTD. 26/05/2007 ISSUED BY THE 3RD RESPONDENT. EXT.P7: COPY OF THE REPRESENTATION DTD. 1/06/2007 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT. EXT.P8: COPY OF THE SUBMISSION DTD. 13/06/2007 OF THE PETITIONER TO THE 4TH RESPONDENT. EXT.P9: COPY OF THE ORDER NO.E2/1840/07 DTD. 13/06/2007 ISSUED BY THE 4TH RESPONDENT. EXT.P10: COPY OF THE ORDER NO.AD.AVI/16000/07 DTD. 9/07/2007 ISSUED BY THE 3RD RESPONDENT. EXT.P11: COPY OF THE REPRESENTATION DTD. 24/03/2008 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT. EXT.P12: COPY OF THE REPRESENTATION DTD. 5/05/2008 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P13: COPY OF THE REPRESENTATION DTD. 5/05/2008 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P14: COPY OF THE ORDER NO.AD.AVI/16000/07 DTD. 12/05/2008 ISSUED BY THE 3RD RESPONDENT. EXT.P15: COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.10/98/H.EDN. DTD. 4/2/1998.** _Kss_ **..2/-** **...2.....** ## **WPC.NO.17039/2008C** ## **RESPONDENT'S EXHIBITS:** - **EXT.R4(A): COPY OF G.O.(RT) NO.1559/2002/LSGD DTD. 15/06/2002.** - **EXT.R4(B): COPY OF UNDERTAKING DTD. 25/06/2004 GIVEN BY PETITIONER.** - **EXT.R4(C): COPY OF G.O.(RT) NO.3978/2004/LSGD DTD. 16/11/2004.** - **EXT.R4(D): COPY OF LETTER DTD. 19/07/2005 OF THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM.** - **EXT.R4(E): COPY OF G.O.(RT) NO.4582/2005/LSGD DTD. 22/11/2005.** - **EXT.R4(F): COPY OF MEMO DTD. 28/06/06 ISSUED BY PRINCIPAL, TKM COLLEGE.** - **EXT.R4(G): COPY OF LETTER DTD. 5/07/2006 OF THE EXECUTIVE DIRECTOR OF KUDUMBASREE, ALAPPUZHA.** - **EXT.R4(H): COPY OF LETTER DTD. 17/08/2006 OF THE PRINCIPAL,TKM COLLEGE.** **EXT.R4(I): COPY OF LETTER DTD. 31/07/2006 OF THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM.** - **EXT.R4(J): COPY OF G.O.(RT) NO.2561/06/LSGD DTD. 17/10/2006.** - **EXT.R4(K): COPY OF ORDER DTD. 1/11/2006 ISSUED BY TKM COLLEGE OF ENGG.** **/TRUE COPY/** **P.A.TO JUDGE** _Kss_ ## **ANTONY DOMINIC, J** **-----------------------------------------------------------** W.P.(C).No.17039/2008 **-----------------------------------------------------------** Dated this the 1th day of November, 2008 ## JUDGMENT Petitioner was appointed as Lecturer in Maths on 17.6.1999, under the 4th respondent college. It would appear that, from 15.6.2002 onwards, for more than 4 years and 4 months, petitioner was on deputation and rejoined duty on 1.11.2006. In the meanwhile, on 28.9.2002, the 3rd respondent University invited application to the post of Lecturer(Maths). Petitioner responded to the notification and was interviewed in May, 2007. He asked to produce No Objection Certificate from the 4th respondent and Ext.P5 Non Objection Certificate was granted. 2. Eventually, the petitioner was selected and the University issued Ext.P6 offering him employment. Thereupon he submitted Ext.P7 request to the 4th WP(c).No.17039/08 2 respondent college requesting that he be relieved from their service, in order to join duty under the 3rd respondent University. As admitted by the 4th respondent in its counter affidavit, he was thereupon instructed to tender resignation and Ext.P8 letter of resignation dated 13.6.2007 was submitted by the petitioner. Ext.P8 resignation was accepted and the petitioner was relieved by Ext.P9. Immediately, on 14.6.2007, the petitioner joined as Lecturer under the 3rd respondent University and Ext.P10 is the order of appointment. 3. It is stated that his selection and appointment was challenged by rival candidates in WP(c).No.17928/2007 filed before this court. That writ petition was allowed and his appointment was set aside. It would appear that the petitioner challenged the judgment by filing the W.A. No.223/08 but however the same was dismissed by a Division Bench of this court. Thereafter, apprehending that the University will implement the judgment of this court, WP(c).No.17039/08 3 petitioner submitted Ext.P11 dated 24.3.2008 requesting the 4th respondent Manager to reinstate him in service. He says there was no response to his request and while so the Syndicate at its meeting held on 29.4.2008 resolved to terminate the service of the petitioner accepting the judgment rendered in WP(c).No.17928/2007 as confirmed in W.A. No.223/2008. Ext.P11 was not responded to by the management and there upon the petitioner submitted Exts.P12 and P13 to the Director of Technical Education and to the Vice Chancellor of the 3rd respondent University on 5th May, 2008. 4. While matter stood thus, in pursuance to the decision taken by the Syndicate on 29.4.2008, by Ext.P14 order dated 12.5.2008, the petitioner's services were terminated. It was at that stage, the writ petition was filed praying that the 4th respondent be directed to reinstate/absorb the petitioner as Lecturer in Maths in their college. There is a further prayer for directing WP(c).No.17039/08 4 respondents 2 and 3 to pass orders on Exts.P12 and P13 and also to require the first respondent to consider the case of the petitioner and issue an order in the nature of GO(Rt). No.302197/H. Edn dated 17.3.1997 referred to in Ext.P15 order. 5. Referring to the counter affidavit filed by the 4th respondent, Sr. counsel for the petitioner also points out that the post which he held still remains vacant and even that according to the 4th respondent, they are only taking steps for notifying the vacancy to initiate fresh selection. Counsel for the petitioner also referred to me Ext.P15, Government order issued on 4.2.2008 following the Government order dated 17.3.1997, read at Sl. No.1 of the said order. A reading of Ext.P15 shows that, following the judgment of this court, interfering with the appointments made by the Vice chancellor of the Sree. Sankaracharya University of Sanskrit, Kalady, considering the representations made by the teachers, Government issued WP(c).No.17039/08 5 order dated 17.3.1997, directing the private/aided institutions from where the candidates had resigned to reinstate those candidates, subject to the posts still remaining vacant. Though, the order was implemented partially, in cases where posts were filled up, Government issued Ext.P15 permitting creation of supernumerary posts to accommodate the teachers mentioned in the list attached to Ext.P15. Referring to this order, it is contended that, as in that case, in this case also, petitioner had to resign from his job, only on being selected and appointed by the 3rd respondent University. It is also stated that in this case also, his appointment was invalidated by this court in the judgment in WP(c).No.17928/07 as confirmed in W.A.No.223/2008. It is contended that, the petitioner is also entitled to similar treatment from the Government considering his sympathetic situation. Proceeding further it is submitted that the Government should be called upon to pass order in the nature of Ext.P15, to salvage the situation WP(c).No.17039/08 6 of the petitioner. 6. Yet another contention raised by the Sr. counsel for the petitioner is, relying on statute 39 of the Kerala University first Statute. Statute 39 makes applicable Part I and II KSR, except those provisions which are excluded in statute 39 itself. It is contended that rule 17 to 19 of Part I KSR are not excluded and therefore, the petitioner will retain lien on the post which he held under the 4th respondent. Therefore it is argued that he is entitled to be reinstated. It is further contended that in view of the law laid down by the Apex court in **Alavi V. State of Kerala (** 2003(2)KLT 922) interpreting the provisions contained iin Rule 8 of Part II KS & SSR, petitioner is entitled to be reinstated in service. Here, I should mention that, the senior counsel for the petitioner fairly submitted that, though Rule 8 Part II KS & SSR as such is not applicable to the petitioner, still the principle behind the rule as understood by the Apex Court should be extended to his case also. WP(c).No.17039/08 7 7. The case of the petitioner is contradicted by both the management and the Government Pleader referring to the counter affidavits filed by them. Counsel for the management and the Government would submit that once persons has resigned he cannot claim any right to be admitted to duty. The counsel made reference to Rule 33 of KS & SSR and Rule 29 of Part III KSR. The learned counsel for the management also attempted to distinguish this case from the facts of the case of the teachers who were rendered un-employed consequent on the judgment rendered by this court in the case of Sree Sankaracharya University of Sanskrit, for whose rescue the Government came by issuing orders dated 17.3.1997 and 4.2.1998. 8. In so far as the plea of the petitioner relying on Ext. P15 order passed by the Government of Kerala directing creation of supernumerary post to accommodate the terminated Lecturers of Sree Sankaracharya University of Sanskrit and praying for a similar order in his case is WP(c).No.17039/08 8 concerned, first of all the petitioner has not been able to show me any statutory provision, enabling the Government to pass an order in the nature of Ext. P15 requiring the 4[th] respondent to reinstate him in service despite the resignation that was tendered by him and accepted by the college on the basis of which he was relieved from the services of the University. That apart, even the Government Order dated 17.3.1997, pursuant to Ext. P15 was passed, was necessitated in a totally different circumstance. As already noticed, the orders were passed following the termination of the Lecturers appointed by the University, based on the judgments rendered by this Court. The reason for invalidating the appointment was that without any selection process as provided in the governing statute, the Vice Chancellor made appointments. Thus, the termination was not due to the fault of the candidates involved in that case. On the other hand, in this case, the reason for termination, was that the petitioner did not satisfy the WP(c).No.17039/08 9 qualifications prescribed in the notification issued by the University on 28.9.2002. If that be so, selection was invalidated for reasons attributable to the petitioner only and in such a circumstance, there is absolutely no justification for asking the Government to pass an order in the nature of Ext. P15. 9. The other contention raised by the learned counsel for the petitioner is by relying on Rules 17 to 19 of Part I, K.S.R. It was contended by the learned counsel for the petitioner, that Statute 39 of the First Statute of the Kerala University makes Parts I and II of K.S.R. applicable to the Universities, except those provisions which are excluded by them. However, having regard to the fact that the petitioner had resigned from service of the University on his own accord he cannot contend for the position that despite the cessation of his employment in the 3rd respondent's service he can claim reinstatement on the basis that he retained lien in the college. The decision relied on by the WP(c).No.17039/08 10 learned counsel for the petitioner in the case _**Alavi v. State of Kerala**_ {2003(2)KLT 922}, was rendered in the context of Rule 8 of Part II, K.S. & S.S.R. Admittedly, K.S. & S.S.R. is inapplicable to the petitioner. If that be so, the rule interpreted therein cannot of any assistance to the petitioner. On the whole, the petitioner has not made out any legal right to claim reinstatement in the service of the 4[th] respondent and therefore no relief can be granted in this writ petition. Writ petition fails and is dismissed. **ANTONY DOMINIC JUDGE** vi. WP(c).No.17039/08 11