Meenamma P.A. v. The Manager, The Cochin Education Society, Cochin College Buildings, Cochin-682 002 and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **MONDAY, THE 3RD DAY OF DECEMBER 2012/12TH AGRAHAYANA 1934** **WP(C).No. 9904 of 2009 (G) --------------------------** ## **PETITIONER(S): --------------------------** **MEENAMMA P.A.,SANKOORIKKAL HOUSE, COPPER VILLAS,CHEMBUMUKKU,KAKKANAD WEST P.O.** ## **BY ADV. SRI.MATHEW SEBASTIAN** **RESPONDENT(S):** **----------------------------** **1. THE MANAGER, THE COCHIN EDUCATION SOCIETY,COCHIN COLLEGE BUILDINGS,COCHIN-682 002.** **2. THE PRINCIPAL,COCHIN COLLEGE, COCHIN-682002.** **3. THE MAHATMA GANDHI UNIVERSITY, REP.BY REGISTRAR,PRIYADARSHINI HILLS,ATHIRAMPUZHA KOTTAYAM.** **4. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN,THIRUVANANTHAPURAM.** **R1 & R2 BY ADV. SRI.A.JAYASANKAR R1 & R2 BY ADV. SRI.MANU GOVIND** **R3 BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY R3 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G. UNIVERSITY R3 BY ADV. SRI.VIVEK VARGHESE P.J., SC, M.G. UNIVERSITY BY SR. GOVERNMENT PLEADER SMT. SAREENA GEORGE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 9904 of 2009 (G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF THE LETTER (APPOINTMENT) DATED 10.10.1988.** - **P2: COPY OF THE ORDER OF APPROVAL DATED 10.11.1988 ISSUED BY THE 3RD RESPONDENT.** - **P3: COPY OF THE APPOINTMENT LETTER DATED 31.05.1996 ISSUED BY THE 1ST RESPONDENT.** - **P4: COPY OF THE ORDER OF APPROVAL DATED 11.02.1997 BY THE 3RD RESPONDENT.** - **P5: COPY OF THE REPRESENTATION DATED 21.03.2009 BEFORE THE 1ST RESPONDENT.** - **P6: COPY OF THE LETTER ISSUED BY THE CONTROLLER OF EXAMINATIONS, EXAMINATION UNIT, SCIENTIFIC AND INDUSTRIAL RESEARCH, NEW DELHI DATED 15.09.1999.** - **P7: COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 19.08.2009.** - **P8: COPY OF LETTER DATED 01.12.1997 ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.** - **P9: COPY OF THE COVERING LETTER DATED 30.03.2010 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.** - **P9(a): COPY OF ADDITIONAL EXT.P8, ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER TOGETHER WITH ADDL. EXT.P9.** - **P10: COPY OF THE PETITION IN O.P.NO.6785/98 OF THIS HONOURABLE COURT.** - **P11: COPY OF THE DEGREE CERTIFICATE DATED 28.10.2010.** ## **RESPONDENT'S EXHIBITS:** - **R1A: COPY OF JUDGMENT DATED 20.01.1999 IN O.P.NO.6785/98.** - **R2A: COPY OF LETTER DATED FROM 2ND RESPONDENT TO 4TH RESPONDENT.** ## **//TRUE COPY//** **P.A. TO JUDGE** **ds** ## **C.K. ABDUL RAHIM, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 9904 OF 2009** **- - - - - - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 03[rd] day of December, 2012** ## **J U D G M E N T** The petitioner was appointed as Junior Lecturer in the first respondent's college against leave vacancies which arose on two spells, from 11.10.1988 to 27.03.1989 and from 03.06.1996 to 31.03.1997. The petitioner is challenging the denial of her claim for appointment against a permanent vacancy which arose with effect from 01.04.2009. She had staked the preferential claim under Section 62(2)(b) of the Mahatma Gandhi University Act, 1985 and under Statute 24(2) of Chapter 45(b) of the Mahatma Gandhi University Statute, 1997. 2. Litigations on the issue has got a chequered history. After the second spell of appointment the petitioner had approached this Court in O.P.No. 22175/1997, seeking directions for sanctioning a permanent post of Lecturer in W.P.(C) No.9904/2009 -2- the Department of Zoology. Since her representation in this regard was not considered by the Director of Collegiate Education, the said writ petition was filed. This Court directed the Director of Collegiate Education to take a decision on the request. The Director of Collegiate Education, after analyzing the work load available in the college in the subject concerned, observed that no additional post is admissible. Therefore, the claim of the petitioner for regular appointment as Lecturer was declined. The petitioner filed a further writ petition as O.P.No.6785/1998 seeking similar reliefs and also seeking directions for payment of her salary for the period from 03.06.1996 to 31.03.1997. In the judgment in O.P.No.6785/1998, dated ## 20.1.1999, this Court observed as follows: _“I am of the view that since the appointment of the petitioner has already been approved by the University by Ext.P6 order, dated 11.02.1997 for the period from 03.06.1996 to 31.03.1997, there is no justification in denying salary to the petitioner._ W.P.(C) No.9904/2009 -3- _It is made clear that petitioner would not stake any other claim by virtue of the fact that she had worked during the above mentioned period. Accordingly, this writ petition is disposed of with a direction to the respondents to disburse salary for the said period since the appointment has already been approved.”_ 3. In the present writ petition, contention of the petitioner is that, two permanent posts of lecturers were lying vacant in the first respondent's college from 01.04.2009 onwards. The petitioner claimed that she is entitled to be appointed against one of the posts, on the basis of her claim under the provisions quoted above. The petitioner submitted Ext.P5 representation in this regard before the first respondent. In the meanwhile, she had acquired test qualifications of 'NET' and M.Phil. degree. Since her claim was not considered, this writ petition was filed. W.P.(C) No.9904/2009 -4- 4. This Court through an interim order issued on 05.08.2009 directed the first respondent to consider the claim of the petitioner and to take an appropriate decision. Through Ext.P7 the first respondent declined the request stating that, at the time of appointment against the leave vacancy the petitioner had given an undertaking that she would not make any claim for appointment under the UGC scheme, and therefore the petitioner is not entitled for appointment, ignoring such undertaking. Through amendment brought in this writ petition the petitioner is challenging Ext.P7. 5. Section 62(2)(b) of the Act contemplates that, a teacher relieved from a private College due to abolition of course or cessation of period or for any other reason, except disciplinary action, should be given preference in the matter of future appointments in the college belonging to the same educational agency. Statute 24(2) enables preference to a teacher in the matter of future appointments in the colleges W.P.(C) No.9904/2009 -5- owned by the same educational agency, if he/she has been duly appointed on probation and thrown out from service other than for disciplinary action. Contention of the petitioner is that by virtue of the temporary service rendered in the leave vacancies on two spells, the petitioner had accrued a statutory claim for appointment in the future arising vacancies. Hence, denial of appointment in the vacancies which arose as on 01.04.2009, is illegal and unsustainable, is the contention. 6. Respondents 1 and 2 had refuted the contentions mainly alleging that there is clear suppression of material facts. Filing of the earlier writ petitions and the judgment in O.P.No.6785/1998 were not disclosed in this writ petition. It is contended that, claim of the petitioner for appointment in the permanent vacancy has already been negatived by this Court through the judgment in O.P.No.6785/1998, observing that; W.P.(C) No.9904/2009 -6- _“It is made clear that petitioner would not stake any other claim by virtue of the fact that she had worked during the above mentioned period.”_ 7. Sri. Mathew Sebastian, learned counsel for the petitioner, contended that it is only a passing observation which does not specifically deal with the rights of the petitioner, arising out of the statutory provisions. According to him the said observation is made only with respect to the claim for monetary benefits and not regarding the claim for re-appointment. But, counsel for respondents 1 and 2 had drawn my attention to a Review Petition filed by the petitioner against the judgment in O.P.No.6785/1998 (Judges papers of which were made available for my perusal by the Registry). It is revealed that the petitioner had sought for a review of the judgment seeking clarification that the above narrated observation will not affect any claim for future appointment and it relates only with respect to monetary claims. But this Court dismissed the Review W.P.(C) No.9904/2009 -7- Petition through an order dated 01.02.2012, observing that the writ petition (O.P.No.6785/1998) was filed on the premise that the petitioner has got a preferential claim for appointment in the next arising vacancy, as per the University Act. She had also challenged the refusal to sanction an additional post. In the order passed in the Review Petition (R.P.No.628/2011) this Court observed as follows; _“7. The above contentions are disputed by the learned counsel for the third respondent by pointing out that apart from non payment of salary, the petitioner had challenged Exts. P45 and P5 and para 1 of the writ petition will show that the petitioner was seeking to establish her preferential right in the next arising vacancy. The said issue was clearly found against her, in the judgment. It is submitted that entertainment of the Review Petition will result in a rehearing of the writ petition which is impermissible in law._ _8. In para 1 of the writ petition, the petitioner has stated as follows:_ _“ Hence the petitioner has got a preference towards the appointment in the next arising vacancy as per the provisions of the Mahatma Gandhi University Act._ W.P.(C) No.9904/2009 -8- _Her salary towards the last appointment is yet to be reimbursed from the UGC. ”_ _Grounds 'A' to 'D' in the writ petition are relating to the non sanctioning a post and Grounds 'E' and 'F' are regarding the denial of salary. Therefore, specific points were raised with regard to the preferential right, which cannot be of any doubt. ”_ 8. The observations contained in the judgment in O.P.No.6785/1998 and the observations contained in the order in R.P.No.628/2011 will run as clear _resjudicata_ against the contentions in the present writ petition, is the contention raised. I am of the view that the observations contained in the judgment in O.P.No.6785/1998 by itself may not be sufficient to hold that this Court had concluded the claim for appointment in future arising vacancies. But by virtue of order in the review petition the position has been clarified in unequivocal terms. It is clearly mentioned that the petitioner had already agitated the issues regarding the claim for appointment in the permanent vacancy arose and the claim was declined. This Court had categorically observed that, the attempt of the petitioner to establish her W.P.(C) No.9904/2009 -9- preferential right against the next arising permanent vacancy has already been found against in O.P.No.6785/1998 itself. Therefore, it is evident that the relief now sought for had already been negatived by this Court. It is also evident that the petitioner has not challenged either the judgment in O.P.No.6785/1998 or the order in R.P.No.628/2011 in appeal. Without assailing those verdicts, a further writ petition filed seeking an identical relief cannot be entertained. 9. Further contention raised by respondents 1 and 2 is regarding identity of the posts. It is contended that, even assuming (without admitting) that there exists a statutory claim, it cannot be raised for appointment to the post of 'Lecturer' under the UGC scheme. This is because of the fact that the petitioner was appointed in the leave vacancies only as 'Junior Lecturer (Pre-Degree)'. The respondents had placed reliance on a Division Bench decision of this Court in **Sri Kumari Amma v. State of Kerala [1988 (2) KLT** W.P.(C) No.9904/2009 -10- **359].** Analyzing the provisions in Rule 51(A) of Chapter XIV (A) of the Kerala Educational Rules, this Court held that a right for appointment in a future arising vacancy can be exercised only with respect to a vacancy which arose in the same cadre and not with respect to any post either superior or inferior to the post under which the incumbent had served temporarily. Learned counsel for the petitioner contended that the provisions in the KER is not analogous to the Mahatma Gandhi University Act and the Statute. He relied on a judgment of this Court in **Sree Usha v. State of Kerala [2008 (4) KLT 986].** Referring to Section 62(2)(b) of the Act, this Court held that the right can be exercised irrespective of the age limit prescribed for direct recruitment. In the said decision it is further observed that, no formal application is necessary for exercising such a right and the management is not entitled to deny such right even on the basis that the temporary appointment was not approved. The judgment goes to the extent of observing W.P.(C) No.9904/2009 **==> picture [25 x 10] intentionally omitted <==** that even the incumbent in such case is not at an obligation to acquire any qualification which are subsequently introduced. Learned counsel for respondents 1 and 2 had pointed out that, Ext.P3 order of appointment contains a specific condition that the candidate appointed will not having any claim for appointment under the UGC scheme vacancies and that she should be prepared to teach in the Pre-Degree level, and will go only to the pre-degree category. It is also evident that the appointment was made after obtaining a written undertaking to that effect. 10. Even assuming that the petitioner had any accrued right by virtue of section 62(2)(b), she cannot claim appointment as 'Lecturer' under the UGC scheme, because Pre-degree has already been de-linked from colleges and those working as 'Junior Lecturers' were already been deployed to the Higher Secondary Schools, is the contention raised by the respondents. While considering the above said issue, I am of the view that, even though the wording of W.P.(C) No.9904/2009 **==> picture [25 x 10] intentionally omitted <==** Section 62(2)(b) is as 'teachers', there is no post recognized under the UGC scheme as 'Junior Lecturer (Pre-Degree)'. Therefore, the petitioner cannot stake any claim for permanent appointment as 'Lecturer' under the UGC Scheme, by virtue of the temporary service as 'Junior Lecturer' in pre-degree. This is especially in view of the specific conditions incorporated in the order of appointment, as well as in view of the written undertaking given at the time of such appointment. 11. Learned counsel for respondents 1 and 2 had also contented that, the written undertaking given by the petitioner will amount to a waiver of the claim. He relied on a judgment of the honourable Supreme Court in **Krishna Bahadur v. Poorna Theater And others [2004 (8) SCC** **229].** It is observed therein that a right can be waived by a party for whose benefit certain requirements or conditions have been provided by a statute, subject to condition that no public interest is involved therein. The principle of W.P.(C) No.9904/2009 **==> picture [25 x 10] intentionally omitted <==** waiver, although akin to the principle of estoppel, the difference between the two is that the estoppel is not a cause of action but it is a rule of evidence, whereas waiver is contractual and may constitute a cause of action, because it is an agreement between the parties and the party fully knowing his right has agreed not to assert a right for a consideration. The above legal proposition was confronted by learned counsel for the petitioner by citing decision of this Court in **Mahatma High School v. State of Kerala [1999 1 KLT 705].** Referring to provisions of the Kerala Educational Rules in Chapter XIV(A), this Court held that the management cannot compel an appointee to relinquish his rights of promotion on a permanent basis. Any undertaking or compulsion in this regard will be illegal. But in the case at hand the compulsion is not in the case of a promotion and the undertaking obtained from the petitioner is only to the effect of clarifying that the appointment will not give rise to any claim under the UGC scheme. It will not amount to any W.P.(C) No.9904/2009 -14- compulsion for giving up any statutory rights. 12. Learned counsel for the petitioner raised yet another contention that, even assuming that the judgment in O.P.No.6795/1998 and the order in R.P. No.628/2011 remains as concluded verdicts negativing the claim, the issue considered was only the claim arising out of temporary appointment at the second spell, between 03.06.1996 to 31.03.1997. The statutory right accrued on the basis of appointment made for the period from 11.10.1988 to 27.03.1989, will not be affected by those verdicts, is the contention. But I am of the opinion that the waiver made during the time of the second appointment as well as the verdicts negativing the claim staked on the basis of the second appointment, will nullify the rights, if any accrued, on the basis of the first appointment. This is because the right as such is a continuing one and it is not distinct based on each such appointments. W.P.(C) No.9904/2009 **==> picture [25 x 10] intentionally omitted <==** 13. Result of the above discussions is that, the petitioner has no statutory right for claiming appointment in any permanent vacancy in the first respondent's colleges, in the cadre of 'Lecture'. Hence the writ petition fails and the same is accordingly dismissed. 14. It is made clear that this judgment will not stand in the way of the petitioner challenging the judgment in O.P.No.6785/1998 or order in R.P.No.628/2011, in appropriate proceedings, if maintainable under law. **C.K.ABDUL RAHIM, JUDGE.** ds