Noushad M.C. v. State of Kerala & Ors.

W.P.(C)No.7029 of 2023 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 20TH DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945** **WP(C) NO. 7029 OF 2023** ## **PETITIONER:** **NOUSHAD M.C AGED 46 YEARS S/O. ABOOBACKER M.C, KAKKUZHIKUNNATHU HOUSE, KUNIYIL, KIZHUPARAMBA, AREACODE (VIA) MALAPPURAM - 673 639, LECTURER IN ENGLISH, ANVARUL ISALAM ARABIC COLLEGE, KUNIYIL- MALAPPPURAM- 673 639).** **BY ADVS. SRI K.S.MADHUSOODANAN SRI M.M.VINOD KUMAR SRI P.K.RAKESH KUMAR SRI K.S.MIZVER SRI M.J.KIRANKUMAR** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY, HIGHER EDUCATION**| ||**DEPARTMENT, GOVERNMENT SECRETARIAT, GOVERNMENT OF**| ||**KERALA, THIRUVANANTHAPURAM, PIN – 695001.**| |**2**|**DIRECTOR OF COLLEGIATE EDUCATION**| ||**VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN – 695001.**| |**3**|**DEPUTY DIRECTOR OF COLLEGIATE EDUCATION**| ||**NORTH ZONE, MANANCHIRA P.O,**| ||**KOZHIKODE, PIN – 673001.**| |**4**|**UNIVERSITY OF CALICUT**| ||**THENHIPALAM, KOZHIKODE, PIN – 673635**| ||**REPRESENTED BY REGISTRAR.**| |**5**|**MANAGER, ANVARUL ISLAM ARABIC COLLEGE,**| ||**KUNIYIL, KIZHUPARAMBA P.O, AREACODE,**| ||**MALAPPURAM,**| ||**PIN – 673639.**| W.P.(C)No.7029 of 2023 2 **6 PRINCIPAL, ANVARUL ISLAM ARABIC COLLEGE, KUNIYIL, KIZHUPARAMBA P.O, AREACODE, MALAPPURAM, PIN – 673639.** **SMT.K.G.SAROJINI, GOVT.PLEADER FOR R1 TO R3 SRI.P.C.SASIDHARAN FOR R4** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.11.2023, THE COURT ON 20.02.2024 DELIVERED THE FOLLOWING:** W.P.(C)No.7029 of 2023 3 ## **T.R. RAVI, J.** **-------------------------------------------W.P.(C)No.7029 of 2023 -------------------------------------------Dated this the 20th day of February, 2024** ## **JUDGMENT** Heard Sri K.S.Madhusoodanan on behalf of the petitioner, Sri.P.C.Sasidharan on behalf of the 4th respondent and Smt.K.G. Sarojini, Government Pleader for respondents 1 to 3. 2. The writ petition has been filed, being aggrieved by the delay in the approval of the appointment of the petitioner as Lecturer in English in the 6th respondent's College, with effect from 01.06.2022, in a retirement vacancy. 3. The 5th respondent notified a temporary vacancy in the post of English Lecturer in March 2005. The petitioner, along with four others, had applied. After following the procedure prescribed, the 5th respondent prepared a select list of candidates on 09.07.2005, which has been produced as Ext.P1 in the writ petition. The petitioner was ranked '3'. The petitioner was given an appointment on that day itself as per Ext.P2. The appointment was approved as per Ext.P3 order dated 24.10.2005 by the 4th respondent University. The appointment was in the leave vacancy W.P.(C)No.7029 of 2023 4 of Smt.P.K.Subaida. Smt.Subaida requested an extension of the leave, and in the above circumstances, the petitioner's appointment was extended from 23.09.2007 to 22.09.2012 to cover the extended leave period of Smt.Subaida, and the same was approved by the University as per Ext.P4. 4. Smt.Subaida however, rejoined service on 16.06.2009, cancelling the unavailed portion of the leave without allowance. In the above circumstances, the petitioner was relieved on 15.06.2009. Smt.Subaida thereafter retired on 31.05.2022. The 5th respondent, by order dated 31.05.2022, reappointed the petitioner with effect from 01.06.2012 as Lecturer in English in the permanent vacancy caused by the retirement of Smt.Subaida. Ext.P5 is the order of appointment. The petitioner rejoined duty on 01.06.2022. On 10.06.2022, the 6th respondent forwarded the proposal for approval of the appointment of the petitioner with effect from 01.06.2022, along with the necessary documents. The photocopy of the proposal has been produced as Ext.P6. 5. Ext.P6 specifically says that the petitioner is entitled to a preferential claim for appointment to the vacancy that has been caused by the retirement of Smt.Subaida, under Section 57(6)(a) and (b). The petitioner has produced Ext.P7 to show that the total W.P.(C)No.7029 of 2023 5 workload in the Department of English is 25 hours, and there is only one sanctioned post. The 5th respondent had requested the creation of one more post in view of the newly sanctioned aided degree course, which had been started in the academic year 2014- 15. Ext.P8 is the statement showing the allotment of the workload, which would show that after allotting 16 hours to the petitioner, a new post of Assistant Professor for the remaining 9 hours is possible. Ext.P9 is a copy of G.O.(MS)No.109/2013/H.Edn dated 27.04.2013, which says that the UGC scale of pay and scheme benefits have been extended to aided Arabic College Teachers. The order says that the existing post of Lecturer in English in the Colleges would be used for the preliminary course and degree courses. The order also says that the UGC Scheme benefits will be available to only those teachers who are appointed on a regular basis against permanent vacancies and posts that come within the workload for degree and PG Courses. It can be seen from Ext.P10 order issued on 21.02.2014 that the Government had extended the UGC Scheme to the 5th respondent's College. Clause 5 of Ext.P10 says that as and when vacancies arise after 1.4.2013 in the UGC scheme, the same shall be filled up from among those existing teachers who were W.P.(C)No.7029 of 2023 6 appointed up to 31.3.2013 and that teachers who have joined before 27.3.2010 are exempted from UGC prescribed qualifications such as NET/Ph.D. The petitioner hence submits that since the petitioner has a postgraduate qualification in English alone, he is entitled to the exemption from the UGC qualification going by Ext.P10 order. 6. Ext.P11 is a letter dated 10.6.2022 sent by the 6th respondent to the 4th respondent University, forwarding the proposal for approval of the appointment of the petitioner who had been working in the College as a Lecturer in English from 11.07.05 to 15.06.2009 and was relieved for want of vacancy. On 03.07.2023, the 4th respondent issued orders whereby the request for approval was rejected. The reason stated is that the criteria prescribed by UGC Regulations, 2018, University Act and Statutes, and Government Norms relating to qualifications, Government concurrence, workload, and vacancy position are not complied with. The petitioner is hence before this Court. 7. The counsel for the petitioner contended that the appointment of the petitioner is in the retirement vacancy of Smt.Subaida, who was handling the same 16 hours, now being handled by the petitioner. The petitioner's appointment as lecturer W.P.(C)No.7029 of 2023 7 was before the re-designation of the lecturer post as Assistant Professor. It is submitted that Smt.Subaida was enjoying the UGC benefits. It is further submitted that the petitioner, like Smt.Subaida, had worked prior to 2010 and is hence entitled to the benefits of Ext.P10. The counsel for the petitioner relies on the judgment of this Court in **V.Sainabha v. State of Kerala &** **Ors. [W.P.(C)No.115 of 2011]** wherein it was held that in view of the _non obstante_ clause in Section 57(6) of the Calicut University Act, it is evident that the other conditions for fresh appointment will not govern the matter and that what is conferred is a preference for appointment to a teacher who was relieved on or after 14.03.1974 under Section 57(6)(b). Reliance is also placed on the judgment in **Sree Usha v. State of Kerala [2008 (4) KLT 986],** wherein it was held that the subsequent introduction of new qualifications will not affect the vested right for appointment. The said decision was rendered under the provisions of the Mahatma Gandhi University Act, 1985. The counsel also referred to the judgment of a Division Bench of this Court in **Usha Ratnam v. State of Kerala [2001 (3) KLT 161]** wherein interpreting Rule 51A of Chapter XIV A KER, this Court held that the mere fact that a new qualification has been introduced does W.P.(C)No.7029 of 2023 8 not mean that it has taken away the statutory right already conferred on a Rule 51A claimant. In **Balakrishnan v. Secretary to Government 2005 (3) KLT 362** , this Court has already held that Section 57(6) of the Calicut University Act is in _pari materia_ with Rule 51A of Chapter XIV A KER. In **Sainaba v. State of Kerala & Ors. [WP(C)No.35955 of 2015]** , filed by the petitioner in WP(C)No.115 of 2011 (supra), a learned Single Judge held that the petitioner therein was also entitled to redesignation of the post held by her as Assistant Professor and the benefits arising therefrom. The judgment has been confirmed by a Division Bench in its judgment dated 11.6.2018 in **W.A.No.275 of 2018** , filed by the State of Kerala and others. 8. Respondents 1 to 3 and the 4th respondent have filed counter affidavits seeking to justify the order of rejection of approval. The justification offered is that the petitioner did not have the necessary qualifications for the appointment under the UGC Scheme and that there was no sufficient workload. 9. The preference for appointment under Section 57(6) b cannot be denied to the petitioner in view of the decisions in **V.Sainabha** (supra), **Sree Usha** (supra), **Usha Ratnam** (supra), **Balakrishnan** (supra) and W.A.No.275 of 2018. This Court has W.P.(C)No.7029 of 2023 9 categorically held that a change in the requirement for appointment, which is introduced later, cannot affect the right of preference. As such, the reason stated that the petitioner did not have a necessary qualification cannot stand in the way of the appointment of the petitioner, particularly since the petitioner's appointment in the leave vacancy of Smt.Subaida had been approved earlier. The appointment in leave vacancy was also extended for further periods, and the petitioner was relieved only for the reason that the person who had gone on leave had cancelled the unexpired portion of the leave and rejoined duty. The only other reason is the want of teaching hours. The said contention also cannot be sustained since, admittedly, the appointment is in the retirement vacancy of Smt.Subaida. Smt.Subida's appointment had been approved throughout, and there is no contention that she was allowed to continue in employment even without the necessary working hours. There is no justification for denial of the benefit to the petitioner, for which he is entitled under the statutory provisions. 10. In the result, the writ petition is allowed. Ext.P12 is quashed. There will be a direction to the 4th respondent to approve the appointment of the petitioner as Lecturer, re-designated as W.P.(C)No.7029 of 2023 10 Assistant Professor, in Anvarul Islam Arabic College, Kuniyil, Kizhuparamba P.O., Areacode, Malappuram -673 639, with effect from 01.06.2022 with all consequential benefits. The order shall be issued within one month from the date of receipt of a certified copy of this judgment. There will be a further direction to respondents 1 to 3 to disburse the salary with arrears to the petitioner on the grant of approval of the appointment by the 4 th respondent as directed above. The salary and arrears shall be disbursed to the petitioner within four months from the grant of approval by the 4th respondent. **==> picture [320 x 54] intentionally omitted <==** Sd/- **T.R. RAVI JUDGE** dsn The rank number '3' occurring in line 6 of paragraph 3 of the judgment dated 20.02.2024 in W.P.(C)No.7029/2023 is substituted and corrected as rank number '1' as per order dated 27.02.2024 in I.A.No.1/2024 in W.P. (C)No.7029/2023. Sd/Joint Registrar W.P.(C)No.7029 of 2023 11 ## **APPENDIX OF WP(C) 7029/2023** ## **PETITIONER’S EXHIBITS** **EXHIBIT P1 PHOTOCOPY OF THE MINUTES OF THE MEETING OF THE STAFF SELECTION COMMITTEE (LECTURER IN ENGLISH) DATED 09-07-2005.** - **EXHIBIT P2 PHOTOCOPY OF THE APPOINTMENT ORDER DATED 09-07-2005 BEARING NO. 4/34/05-06 ISSUED TO THE PETITIONER BY 5TH RESPONDENT.** - **EXHIBIT P3 PHOTOCOPY OF THE APPROVAL OF THE APPOINTMENT DATED 24-10-2005 BEARING NO. GA.II/A1/1754/05 WITH EFFECT FROM 11-07-2005.** - **EXHIBIT P4 PHOTOCOPY OF THE ORDER BEARING NO. GAII/A1/70/2008 DATED 23-04-2008 APPROVED THE EXTENSION OF APPOINTMENT OF THE PETITIONER.** - **EXHIBIT P5 PHOTOCOPY OF THE REAPPOINTMENT ORDER OF THE PETITIONER BEARING NO. AIAC/TS/14/216/2022 DATED 31-05-2022 ISSUED BY 5TH RESPONDENT.** - **EXHIBIT P6 PHOTOCOPY OF THE PROPOSAL SENT BY 5TH RESPONDENT TO THE 4TH RESPONDENT FOR APPROVAL OF REAPPOINTMENT OF THE PETITIONER WITH EFFECT FROM 01-06-2022 BEARING NO. AIAC/TS/APPR/14/83/2022 DATED 10-06-2022.** - **EXHIBIT P7 PHOTOCOPY OF THE PROFORMA I STATEMENT SHOWING THE DETAILS OF ACTUAL WORKLOAD (COURSE WISE) FOR THE YEAR 2022-2023 DATED 01-06-2022 PREPARED BY 6TH RESPONDENT.** - **EXHIBIT P8 PHOTOCOPY OF THE PROFORMA II STATEMENT SHOWING THE ALLOTMENT OF WORK LOAD AMONG THE TEACHING STAFF FOR THE YEAR 2022-2023 DATED 01-06-2022 PREPARED BY THE 6TH RESPONDENT.** - **EXHIBIT P9 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT BEARING G.O(MS) NO. 109/2013/H.EDN DATED 27- 04-2013 EXTENDING UGC SCALE OF PAY AND SCHEME BENEFIT TO ARABIC COLLEGE TEACHERS.** - **EXHIBIT P10 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT BEARING G.O.(MS) NO. 85/2014/H.EDN DATED 21-02-2014 EXTENDING UGC SCHEME BENEFIT TO LECTURERS WORKING IN ARABIC COLLEGES- FIXATION PLACEMENT AND APPOINTMENT.** W.P.(C)No.7029 of 2023 12 |**EXHIBIT P11**|**PHOTOCOPY OF THE LETTER OF 6TH RESPONDENT**| |---|---| ||**ADDRESSED TO 4TH RESPONDENT BEARING NO.**| ||**AIAC/TS/APPR/14/83/2022 DATED 10-06-2023.**| |**EXHIBIT P12**|**PHOTOCOPY OF THE ORDER BEARING U.O.NO.**| ||**10469/2023 /ADMN DATED 03-07-2023 ISSUED BY**| ||**4TH RESPONDENT.**| |**EXHIBIT P13**|**PHOTOCOPY OF THE ORDER OF 4TH RESPONDENT**| ||**BEARING NO.GAII/A1/148/91 DATED 30-03-1992.**| |**EXHIBIT P14**|**PHOTOCOPY OF THE ORDER OF 4TH RESPONDENT**| ||**BEARING NO. GA/A1/6789/86 DATED 09-10-1986.**| |**EXHIBIT P15**|**PHOTOCOPY OF THE ORDER OF THE 4TH RESPONDENT**| ||**BEARING NO. GA.II/A1/1773/93 DATED 17-08-1993.**| |**EXHIBIT P16**|**PHOTOCOPY OF THE ORDER OF 4TH RESPONDENT**| ||**BEARING NO. GA/A1/12009/04 DATED 23-01-1985.**| |**EXHIBIT P17**|**PHOTOCOPY OF THE ORDER OF 4TH RESPONDENT**| ||**BEARING NO. GA.II/A1/984/91 DATED 08-07-1991.**|