M. Sujatha v. Secretary, Cochin Devaswom Board and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE D.SESHADRI NAIDU FRIDAY, THE 4TH DAY OF JULY 2014/13TH ASHADHA, 1936 WA.No. 621 of 2014 (M) IN WP(C).10324/2014 -------------------------------------------- ## APPELLANT/PETITIONER: --------------------------- M.SUJATHA, ASSOCIATE PROFESSOR, DEPARTMENT OF COMMERCE, SREE KERALA VARMA COLLEGE, THRISSUR. ## BY ADV. SRI.P.C.SASIDHARAN /RESPONDENTS/RESPONDENTS: ------------------------------------- ## 1. THE SECRETARY COCHIN DEVASWOM BOARD, DEVASWOM BOARD BUILDING THRISSUR - 680 001. 2. THE UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, THENHIPALAM, MALAPPURAM - 673 635. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THRISSUR - 680 001. 4. K.JAYA NARAYANAN ASSOCIATE PROFESSOR, SREE KERALA VARMA COLLEGE, THRISSUR - 680 001. R2 BY ADV. SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERSITY RADDL.5 BY ADV. SRI.V.A.MUHAMMED RADDL.5 BY ADV. SRI.M.SAJJAD R1 BY ADV. SRI.KRISHNA MENON, SC, COCHIN DEVASWOM BOARD R BY DR.GEORGE ABRAHAM R BY SRI. P.M. SANEER, SR. GOVERNMENT PLEADER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04-07-2014, ALONG WITH WPC. 12245/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.NO. 621/2014 : 2 : ## **APPENDIX** ## APPELLANT'S ANNEXURES: NIL ## RESPONDENTS' ANNEXURES: ANNEXURE R5(a) : TRUE COPY OF THE COMBINED SENIORITY LIST. ANNEXURE R1(a) : TRUE COPY OF THE ORDER NO.G.O.(P) NO.58/2010/H.EDN. DATED 27.03.2010. ANNEXURE R1(b) : TRUE COPY OF THE SENIORITY LIST OF THE ASSOCIATE PROFESSORS OF THE TWO COLLEGES UNDER ITS MANANGEMENT DATED 01.04.2014. //TRUE COPY// P.A. TO JUDGE. rv ANTONY DOMINIC & D. SESHADRI NAIDU, JJ. -----------------------------------W.A. No. 621 of 2014 & W.P.(C) No. 12245 of 2014 -----------------------------------Dated this the 4th day of July, 2014. ## JUDGMENT ## Antony Dominic,J. Facts and issues raised in these cases are similar and therefore, these cases were heard together and are disposed of by this common judgment. We shall refer to the pleadings and documents in W.A. No. 621 of 2014 for convenience. 2. This writ appeal is filed by the petitioner in W.P.(C) No. 10324 of 2014. The petitioner approached this Court complaining that overlooking her seniority in the category of Associate Professor, the 4[th] respondent therein was appointed to the post of Principal of the College under respondents 1 to 3. That writ petition was dismissed by the learned Single Judge without entering into the merits and relegating her to pursue the alternate remedy of appeal available before the University Appellate Tribunal. It is this judgment which is under challenge before us. 3. The appellant commenced her service as Junior Lecturer with effect from 04.11.1981. She was promoted thereafter as W.A. No. 621/2014 & W.P.(C) No. 12245/2014 : 2 : Selection Grade Lecturer with effect from 04.11.1997. The 4[th] respondent commenced her service as Junior Lecturer with effect from 20.11.1981 and he got promotion to post of the Selection Grade Lecturer with effect from 20.11.1997. Exts.P2 and P3 are the seniority lists published by the Educational Agency as on 01.04.2003 and 01.04.2011 respectively. In Ext.P2, the appellant and the 4[th] respondent were assigned seniority at serial Nos.54 and 59 respectively. In Ext.P3, they were assigned seniority at serial Nos. 20 and 23 respectively. 4. In the mean while, Ext.R1(a) Government Order was issued by the Higher Education Department, Government of Kerala on 27.03.2010, which inter alia provided for redesignation of Selection Grade Lecturers as Associate Professors, vide clause 6.1.9 and 6.1.10. These provisions being relevant, are extracted below for ready reference: “6.1.9 Incumbent Readers and Lecturers (Selection Grade) who have completed 3 years in the current pay scale of Rs.12000-18300 on 01.01.2006 shall be placed in Pay Band of Rs.37400-67000 with AGP Pay of Rs.9000 and shall be redesignated as Associate Professor. 6.1.10 Incumbent Readers and Lecturers (Selection Grade) who had not completed three years in the pay scale of Rs.12000-18300 on 01.01.2006 shall be placed at the appropriate stage in the Pay Band of Rs.15600-39100 with W.A. No. 621/2014 & W.P.(C) No. 12245/2014 : 3 : AGP of Rs.8000 till they complete 3 years of service in the grade of Lecturer (Selection Grade)/Reader, and thereafter shall be placed in the higher Pay Band of Rs.37400-67000 and accordingly re-designated as Associate Professors.” 5. Accordingly, both the appellant and the 4[th] respondent were re-designated as Associate Professors with effect from 01.01.2006. Subsequently, by Ext.P4 order dated 31.03.2014, the 4[th] respondent was promoted and posted as Principal in Sree Kerala Varma College, Thrissur with effect from 01.04.2014. It was challenging this Ext.P4 order, the appellant filed the writ petition contending that as per Section 57 of the Calicut University Act, 1975, the appointment of Principal made by promotion shall be based on seniority cum fitness of Associate Professors in the feeder category and that in the matter of promotion of the 4[th] respondent, her seniority was overlooked. 6. The management contended that Associate Professor is a new and separate category of post which were created by Ext.R1(a), and were filled up by re-designation of Selection Grade Lecturers who have completed three years. According to them, it being a separate category, seniority had to be fixed and since all eligible Selection Grade Lecturers were re-designated on the W.A. No. 621/2014 & W.P.(C) No. 12245/2014 : 4 : same day, their seniority has to be determined based on their date of birth. It is stated that adopting the above yard stick, seniority of Associate Professors was determined and on such determination, the 4[th] respondent was senior to the appellant. 7. It is stated that when the vacancy of Principal arose not only in the Sree Kerala Varma College, but also in the Sree Vivekananda College, Kunnamkulam, willingness of the Associate Professors including the appellant and the petitioner in W.P.(C) No. 12245 of 2014 and the 4[th] respondent in these cases was sought, that among those who were willing, an interview was held and that based on the merit as assessed, a list was prepared in which candidates were ranked in the order of their date of birth. It is stated that in the select list, the 4[th] respondent in the Writ Appeal was No.1, the 4[th] respondent in W.P.(C) No. 12245 of 2014 was No.2, the petitioner in W.P.(C) No. 12245 of 2014 was No.3 and the appellant was No.4. It is stated that on completion of the above process, the 4[th] respondent in the writ appeal and the 4[th] respondent in W.P.(C) No. 12245 of 2014 were appointed as Principals in the aforesaid two Colleges. 8. It was in the above circumstances that W.P.(C) No. 10324 W.A. No. 621/2014 & W.P.(C) No. 12245/2014 : 5 : of 2014 was filed by the appellant challenging the appointment of the 4[th] respondent to the post of Principal in the Sree Kerala Varma College, Trichur. Insofar as W.P.(C) No. 12245 of 2014 is concerned, on identical grounds, the petitioner therein has filed that writ petition challenging the appointment of the 4[th] respondent therein to the post of Principal of Sree Vivekananda College, Kunnamkulam. 9. The first issue to be considered is whether the learned Single Judge was justified in relegating the appellant in W.A. No. 621 of 2014 to pursue the statutory remedy of appeal available before the University Appellate Tribunal. First of all, the rule of alternate remedy is not an absolute bar, but is only a self imposed restriction. Insofar as the writ petition leading to W.A. No. 621 of 2014 is concerned, apart from the legal issues that are raised, there is no disputed factual issues to be resolved. In such a situation, there was no justification to decline to entertain the writ petition. Further, this appeal was admitted by order dated 11.04.2014 and the contesting parties have filed their counter affidavits as well. Since the writ appeal has been admitted and the parties have also filed their pleadings, we do W.A. No. 621/2014 & W.P.(C) No. 12245/2014 : 6 : not think that we will be justified in relegating the the parties to pursue the statutory remedies. Therefore, we are proceeding to consider the rival contentions on its merits and to decide the matter accordingly. 10. Two issues arise in this controversy. The first one is with regard to the procedure that should have been followed by the educational agency in effecting promotion to the post of Principal. The second issue is whether in preparing the seniority list of Associate Professors, the educational agency was justified in adopting the date of birth as the criteria. The first issue has to be answered in the light of the provisions contained in the Calicut University Act, 1975. Section 57 of the Act deals with appointment of teachers in private colleges. Sections 57(2) and (3) deal with the appointment of Principal by direct recruitment and by promotion. Insofar as this case is concerned, what is relevant is Section 57(3) which provides that where the appointment of Principal is made by promotion, the educational agency shall make appointment on the basis of seniority cum fitness. The legal position in this behalf has been clarified by this Court in Suresh v. Manager, S.N.M. College [2003(3) KLT 839 W.A. No. 621/2014 & W.P.(C) No. 12245/2014 : 7 : (F.B)] and Janardhanan Pillai v. Travancore Devaswom Board b (2005(4) KLT 522). 11. Where the method prescribed in the rule is seniority cum fitness, it is regarded as a non selection post to be filled on the basis of seniority subject to subject to the rejection of the unfit and fitness means fitness in all respects. In such case, the method to be adopted is to fix the bench marks that are required to be satisfied by candidates in the feeder category and to effect promotion based on seniority, from among those who satisfied the bench marks and these who found to be fit for promotion. Insofar as this case is concerned, even according to the educational agency, sufficient number of teachers in the feeder category had expressed their willingness. They have no case that any one among the four teachers before this Court were found unfit. Thereafter the educational agency prepared a list of four persons in the order of seniority adopting the date of birth as the crieteria. 12. At this stage, we shall proceed to examine whether the educational agency was justified in determining the seniority of Associate Professors based on the date of birth. As we have W.A. No. 621/2014 & W.P.(C) No. 12245/2014 : 8 : already seen, clauses 6.1.9 and 6.1.10 of Ext.R1(a) show that it was only by a process of re-designation that the Selection Grade Lecturers were designated as Associate Professors. Nowhere in Ext.R1(a) or elsewhere is there any provision enabling the educational agency to fix the seniority of Associate Professors based on date of birth. This, therefore, means that despite the re-designation, the seniority gained by the Selection Grade Lecturers is not forfeited by any of them and that the seniority which accrued in their favour will be carried by them even after their re-designation. Therefore, the educational agency was totally unjustified in preparing a fresh seniority list adopting date of birth as the criteria and upsetting the existing seniority in the category of Selection Grade Lecturers. Consequently, we can only conclude that the list that was prepared following the assessment of fitness of candidates in the feeder category should have been without upsetting the existing seniority. If that be so, the list prepared by the educational agency adopting date of birth as the criteria, with the 4[th] respondent in W.A. No. 621 of 2014 as No.1 and the 4[th] respondent in W.P.(C) No. 12245 of 2014 as No.2, the writ petitioner in W.P.(C) No. 122450 as No.3 and the appellant in W.A. No. 621/2014 & W.P.(C) No. 12245/2014 : 9 : W.A. No. 621 of 2014 as No.4 is illegal. As a consequence the promotion that was granted to the 4[th] respondent in W.A. No. 621 of 2014 overlooking the admitted seniority of the appellant is illegal and it is declared so. 13. However, the fact remains that the 4[th] respondent was promoted to the post of Principal with effect from 01.04.2014 and he has retired from service on 30.04.2014. Therefore, we do not want to disturb that promotion or consequential benefits that have enured to his benefit. 14. We are informed that following the interim order dated 11[th] April, 2014 passed in this appeal, the appellant was promoted provisionally to the post of Principal with effect from 01.05.2014 and she is continuing in that post since then. In view of our aforesaid conclusions, we direct that the promotion of the appellant will be treated as regular for all purposes and consequential orders in this behalf shall be issued by the Management forthwith. 15. The judgment of the learned Single Judge will stand set aside and the appeal is allowed as above. W.P.(C) No. 12245 of 2014 W.A. No. 621/2014 & W.P.(C) No. 12245/2014 : 10 : 16. In view of our judgment in W.A. No. 621 of 2014, the issue canvassed in W.P.(C) No. 12245 of 2014 is fully covered in favour of the petitioner. Therefore, the petitioner is declared senior to the 4[th] respondent and on that basis, the provisional promotion of the 4[th] respondent as Principal, Sree Kerala Varma College, Thrissur, being illegal, shall be cancelled and the petitioner shall be promoted to the post of Principal. This shall be done as expeditiously as possible at any rate within three weeks from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/- ANTONY DOMINIC, JUDGE. Sd/- D. SESHADRI NAIDU, JUDGE. rv