Nasreen A. v. University of Calicut and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **THURSDAY, THE 23RD DAY OF JUNE 2016/2ND ASHADHA, 1938** ## **WP(C).No. 4013 of 2016 (B) ---------------------------** ## **PETITIONER(S): -------------** **NASREEN A. ASSISTANT PROFESSOR, DEPARTMENT OF MATHEMATICS, MES KALLADI COLLEGE, MANNARKKAD** ## **BY ADV. SRI.M.S.RADHAKRISHNAN NAIR** ## **RESPONDENT(S):** - **-------------1. THE UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, UNIVERSITY CAMPUS, CALICUT UNIVERSITY PO, THENJIPPALAM, MALAPPURAM DISTRICT-673 635.** - **2. THE CORRESPONDENT AND CHAIRMAN STANDING COMMITTEE ON MES COLLEGES, BANK ROAD, CALICUT (MANAGER, MES COLLEGE CO-OPERATIVE EDUCATIONAL AGENCY, KOZHIKODE) 673 001.** - **3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION THRISSUR-680 001.** **R2 BY ADV. SRI.BABU KARUKAPADATH R1 BY ADV. SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERS R BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 4013 of 2016 (B)** **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **-----------------------** **P1 : TRUE COPY OF THE NOTIFICATION DT 18-9-2009** - **P2 : TRUE COPY OF THE PROCEEDINGS DT 16-2-2011 OF M.G.UNIVERSITY.** - **P3 : TRUE COPY OF THE PROCEEDINGS DT 5-11-13 OF THE 2ND RESPONDENT.** **P4 : TRUE COPY OF THE RELIEVING ORDER DT 28-11-13.** - **P5 : TRUE COPY OF THE COMMUNICATION ISSUED BY THE REGISTRAR, THE 2ND RESPONDENT DT 7-12-15** **P6 : TRUE COPY OF THE APPOINTMENT ORDER DT 20-12-13.** **P7 : TRUE COPY OF THE LETTER DT 1-1-16 OF THE 2ND RESPONDENT** **RESPONDENT(S)' EXHIBITS: NIL** - **-----------------------** ## **/TRUE COPY/** **P.A TO JUDGE** **LSN** ## **A.K.JAYASANKARAN NAMBIAR,J. ============== W.P.(C).No. 4013 of 2016 ==================** Dated this the 23[rd] day of June, 2016 ## **JUDGMENT** The petitioner is currently working as an Assistant Professor, Department of Mathematics, at MES Kalladi College, Mannarkkad. The petitioner was initially appointed as an Asst. Professor in the Department of Mathematics at MES College, Marampilly, coming under the administrative jurisdiction of the Mahatma Gandhi University. The said appointment of the petitioner, pursuant to a valid selection process, was to a leave vacancy, the tenure of which was from 04.06.2010 to 30.11.2013. The appointment of the petitioner as Asst. Professor in MES College, Marampilly was approved by the Mahatma Gandhi University, as is evident from Ext.P2 order. Thereafter, on the incumbent, who had gone on leave, returning to take up her post at MES College, Marampilly, the petitioner was shifted to a vacancy which had arisen in the MES College, Kalladi under the management of the 2[nd] respondent, on 29.11.2013. Ext.P4 is the relieving order that was issued to the petitioner, relieving her from MES College, Marampilly. It is relevant to note that MES College, Kalladi comes under the administrative jurisdiction of the Calicut University, and hence, on the shifting of the petitioner from MES College, Marampilly, to MES College, Kalladi, there was in effect an inter-university **2** ## **W.P.(C).No. 4013 of 2016** transfer of the petitioner. On joining service at MES College, Kalladi, the 2[nd] respondent took up the matter, of granting approval to the appointment of the petitioner at MES College, Kalladi, with the Calicut University. By Ext.P5 letter dated 07.12.2015, the 1[st] respondent informed the 2[nd] respondent that inasmuch as the petitioner was appointed at MES College, Kalladi, as Asst. Professor in Mathematics in the resignation vacancy of the Smt. Sabna K.S, only with effect from 01.12.2013, the said appointment could not be treated as a fresh appointment based on the rank list that was prepared in 2010, since the validity of the rank list was only for a period of one year and that had expired on 14.03.2011. The 2[nd] respondent was therefore directed to submit a fresh proposal, with all related and supporting documents, for the purposes of approval of the appointment of the petitioner as Asst. Professor in MES College, Kalladi, with effect from 01.12.2013, for further verification. In response to Ext.P5 letter of the 1[st] respondent, the 2[nd] respondent issued Ext.P6 appointment order appointing the petitioner as Asst. Professor in Mathematics at MES College, Kalladi, with effect from 01.12.2013, and forwarded the said appointment order along with Ext.P7 representation to the 1[st] respondent seeking approval to the said appointment. In Ext.P7 letter, the 2[nd] respondent sought for an early approval to the appointment of the petitioner, since the petitioner was working **W.P.(C).No. 4013 of 2016** **3** without salary for the last two years. In the writ petition, the petitioner seeks a direction to the 1[st] respondent to approve her appointment as Asst. Professor with effect from 01.12.2013, and for a declaration that the petitioner, being an approved teacher, is entitled to a permanent vacancy under the same educational agency, and that the appointment of the petitioner as Asst. Professor to MES College, Kalladi, was in order, and that the University is bound to approve the same. 2. In a statement filed by the Standing Counsel for respondent University, the factual details regarding the selection process and drawing up the rank list, pursuant to which the petitioner was appointed as the Asst. Professor in the MES College, Marampilly, is detailed. It is further pointed out that the select list prepared by the Selection Committee would remain in force only for a period of one year as per the Calicut University First Statutes, 1988, and therefore, the position of the petitioner in the said rank list could not be relied upon for the purposes of granting her a fresh appointment under the Calicut University after the expiry of the period of one year. With regard to the aspect of shifting of the petitioner from the MES College, Marampilly to MES College, Kalladi, it is pointed out that the shifting of the petitioner is not in accordance with the Inter-University Transfer Rules contained in **4** ## **W.P.(C).No. 4013 of 2016** the Calicut University First Statutes, 1988, and the University Laws (Amendment) Act, 2012. In essence, the statement filed by the respondent University indicates that the appointment of the petitioner with effect from 01.12.2013, at MES College, Kalladi, cannot be treated as a fresh appointment based on the original rank list that was prepared in 2010, since the validity of the said rank list had expired, and the petitioner could not be appointed thereafter to any vacancy that arose in any College under the management of the 2[nd] respondent. With regard to the shifting of the petitioner from MES College, Marampilly to MES College, Kalladi, it is stated that the shifting is not in accordance with the Inter-University Transfer Rules. 3. I have heard Sri.M.S Radhakrishnan Nair, the learned counsel for the petitioner, Sri.Babu Karukapadath, Sri.Santhosh Mathew, the learned Standing Counsel appearing for the 1[st] respondent, the learned Standing Counsel appearing for the 2[nd] respondent and the learned Government Pleader appearing for the 3[rd] respondent. 4. On a consideration of facts and circumstances of the case and also the submissions made across the bar, I find that this is a case where the petitioner, who was placed as rank No.4, in a rank list that was drawn up by a duly constituted Selection **W.P.(C).No. 4013 of 2016** **5** Committee in a valid process of selection, was appointed to a leave vacancy by the 2[nd] respondent in the MES College, Marampilly. Thereafter, consequent to the earlier incumbent returning to take up her post in the said College, the petitioner had to vacate the post. The 2[nd] respondent therefore shifted the petitioner to a vacancy that existed in another College coming under the same management but under the Calicut University. The issue that arises in this connection is whether the appointment of the petitioner with effect from 01.12.2013 at the MES College, Kalladi, can be treated as a fresh appointment, after the expiry of the validity of the rank list in which the petitioner featured as rank No.4. It is relevant to note, at this stage, that the petitioner, being a person, who was relieved from the College due to cessation of the period for which she was appointed, obtained a preference in the matter of future appointments in the College or any other College under the same management by virtue of Section 57(6)(b) of the Calicut University Act, 1975. Interpreting an identical provision under the Kerala University Act, 1974, this Court in **Seraphi John (Dr.) v. State of Kerala & others (2015 (3) KLT 1006)** has held that the right that is conferred on the candidate is not one that entitles him to a preferential consideration for appointment, but is one that grants him a preference in the matter of future appointments in any of the Colleges under the same management. **W.P.(C).No. 4013 of 2016** **6** It was held that the right conferred on the person could be exercised without the person having to undergo a fresh process of selection for appointment to the post in question. Taking cue from the said judgment, I find that this is a case where the petitioner, having worked in a leave vacancy during the period from 04.06.2010 to 30.11.2013, had a preferential right for appointment as an Asst. Professor in Mathematics in any of the Colleges under the management of the 2[nd] respondent. I feel therefore, that the indication in Ext.P5 communication that suggests that the petitioner could not be granted a fresh appointment with effect from 01.12.2013, for the sole reason that the validity of the rank list in which the petitioner was ranked as No.4, had expired, cannot operate to defeat the right of the petitioner for appointment in the MES College, Kalladi. If that be so, then the petitioner is rightfully entitled to be appointed with effect from 01.12.2013, to a vacancy that arose in the MES College, Kalladi, since, to the said vacancy, the petitioner would admittedly have a preferential right for appointment, she being the sole candidate, who was the beneficiary of the provisions of Section 57(6)(b) of the Calicut University Act, 1975. 5. The question then arises as to whether the fresh appointment granted to the petitioner would affect the inter se **7** ## **W.P.(C).No. 4013 of 2016** seniority between the petitioner and other teachers in the said College and other Colleges of the same management coming under the jurisdiction of the Calicut University. The University Regulations dealing with the inter-university transfer of teachers by an educational agency and, in particular, under Section 64A of the Calicut University Act, 1975, indicates that a teacher transferred under the said provision will become the junior most in the Colleges under the educational agency in the University irrespective of his service in the University from which he was transferred. Applying the same yardstick in the case of the petitioner, the petitioner would be treated as the junior most in the cadre of Asst. Professor, among all the persons working as Asst. Professors in any of the Colleges under the management of the 2[nd] respondent, under the Calicut University, as on 01.12.2013. I am therefore of the view that, there is no legal embargo in granting approval to the appointment of the petitioner as Asst. Professor in the MES College, Kalladi, with effect from 01.12.2013, by reckoning her as the junior most Asst. Professor among all the Asst. Professors working in the different Colleges under the management of the 2[nd] respondent, within the territorial limits of the jurisdiction of the Calicut University, as on that date. The approval to be granted by the Calicut University to the said appointment of the petitioner, on the terms indicated above will,, **W.P.(C).No. 4013 of 2016** **8** needless to say, be subject to the other formalities for approval being complied with by the 2[nd] respondent. The writ petition is thus disposed by holding that the petitioner, being a beneficiary of the provisions of Section 57(6)(b) of the Calicut University Act, 1975, is entitled to be approved as an Asst. Professor in the Department of Mathematics in MES College, Kalladi, with effect from 01.12.2013, subject to the observations above with regard to the inter se seniority of the petitioner and the other teachers. The 1[st] respondent University is directed to pass orders in accordance with the directions in this judgment within a period of two months from the date of receipt of a copy of this judgment. The 1[st] respondent University, after passing orders approving the appointment of the petitioner, shall communicate the same to the 3[rd] respondent, who shall forthwith take steps to disburse the salary and other benefits that are due to the petitioner pursuant to the approval of her appointment. ## **Sd/-A.K.JAYASANKARAN NAMBIAR JUDGE** lsn