Seeja K.R. v State of Kerala and Mahatma Gandhi University and Syndicate of MG University and SNM Training College Moothakunnam and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 7TH DAY OF NOVEMBER 2017/16TH KARTHIKA, 1939** **WP(C).No. 32856 of 2017 (F) ----------------------------** **PETITIONER(S): -------------** **SEEJA K.R., AGED 41, W/O. K. V. VINOD, ASST. PROFESSOR (GEN.EDUCATION), S. N. M. TRAINING COLLEGE, MOOTHAKUNNAM, ERNAKULAM DISTRICT.** **BY ADVS.SMT.V.P.SEEMANDINI (SR.) SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.P.A.RINUSA** ## **RESPONDENT(S):** **--------------** ## **1. STATE OF KERALA,** **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, M. G. UNIVERSITY, ATHIRAMPUZHA P.O., KOTTAYAM-686540.** **3. THE SYNDICATE OF M. G. UNIVERSITY, REPRESENTED BY ITS CHAIRMAN, ATHIRAMPUZHA P.O., KOTTAYAM-686540.** ## **4. THE PRINCIPAL,** **S.N.M TRAINING COLLEGE, MOOTHAKUNNAM P.O., ERNAKULAM DISTRICT-683516.** **5. THE MANAGER,** **S.N.M TRAINING COLLEGE, MOOTHAKUNNAM P.O., ERNAKULAM DISTRICT-683516.** **6. SARITHA V. K., THARAYIL HOUSE, THARAYIL JUNCTION, MOOTHAKUNNAM P.O., ERNAKULAM DISTRICT-683516.** **WP(C).No. 32856 of 2017 (F)** **----------------------------** **7. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, NEAR M. C. R. V. MEN'S HOSTEL, HOSPITAL ROAD, ERNAKULAM-682011.** **R1 & R7 BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL R2 & R3 BY ADV. SRI.ASOK M. CHERIAN, SC R5 BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI R6 BY ADV. SRI.P.C.SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** ## **WP(C).No. 32856 of 2017 (F)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** - **-----------------------** - **EXHIBIT P1 A TRUE COPY OF APPOINTMENT ORDER BEARING NO.B1/2/3195/05 DATED 02.12.2005 APPROVED BY THE 3RD RESPONDENT UNIVERSITY.** - **EXHIBIT P2 A TRUE COPY OF APPOINTMENT ORDER BEARING NO.556/131/2008/ACAD DATED 11.02.2008.** - **EXHIBIT P3 A TRUE COPY OF THE REQUEST DATED 31.03.2011 FILED BEFORE THE MANGER.** - **EXHIBIT P4 A TRUE COPY OF APPOINTMENT ORDER DATED 06.05.2011 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P5 A TRUE COPY OF JUDGMENT DATED 13.08.2014 IN WA 375/2014 IN R.P.194/2013.** - **EXHIBIT P6 A TRUE COPY OF THE JUDGMENT DATED 16.06.2015 IN W.A.NO.844/2015 IN W.P.(C)NO.25381/2014.** - **EXHIBIT P7 A TRUE COPY OF THE ORDER BEARING G.O.(MS) NO.86/2016/H.EDN DATED 22.03.2016.** - **EXHIBIT P8 A TRUE COPY OF THE CONSENT LETTER DATED 18.04.2016 SUBMITTED BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P9 A TRUE COPY OF THE APPOINTMENT ORDER DATED 18.05.2016 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P10 A TRUE COPY OF G.O.(MS) NO.1773/17/H.EDN. DATED 05.10.2017.** - **EXHIBIT P11 A TRUE COPY OF LETTER DATED 21.11.2016 ISSUED BY THE DEPUTY DIRECTOR OF EDUCATION.** - **EXHIBIT P12 A TRUE COPY OF THE ORDER NO.5784/B/1/ACADEMIC/2017 DATED 27.09.2017 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P13 A TRUE COPY OF THE LETTER DATED 07.08.2006 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P14 A TRUE COPY OF THE LETTER DATED 29.08.2006 SENT BY THE 2ND RESPONDENT TO THE PETITIONER.** - **EXHIBIT P15 A TRUE COPY OF THE JUDGMENT DATED 15.2.2013 IN WPC.14927/2011** - **EXHIBIT P16 A TRUE COPY OF ONE SUCH POSTING ORDER ISSUED BY THE UNIVERSITY** - **EXHIBIT P17 A TRUE COPY OF THE WEB PORTAL OF THE 2ND RESPONDENT UNIVERSITY SHOWING THE PERSONAL PROFILE OF THE PETITIONER** - **EXHIBIT P18 A TRUE COPY OF THE RELEVANT PAGES OF THE ACADEMIC PERFORMANCE INDICATORS AS PER UGC SCHEME, 2010** ## **WP(C).No. 32856 of 2017 (F)** **---------------------------EXHIBIT P19 A TRUE COPY OF RELEVANT PAGES OF NCTE REGULATION 2009 EXHIBIT P20 A TRUE COPY OF RELEVANT PAGES OF NCTE NOTIFICATION DATED 28.11.2014 EXHIBIT P21 A TRUE COPY OF THE TEACHING STAFF DETAILS OF 5TH RESPONDENT COLLEGE EXHIBIT P22 A TRUE COPY OF DATES AND EVENTS LEADING TO THE FILING OF THE ABOVE WRIT PETITION EXHIBIT P23 TRUE COPY OF APPOINTMENT ORDER DATED 13.10.2017 EXHIBIT P24 A TRUE COPY OF ORDER DATED 12.10.2017 RECEIVED BY THE PETITIONER ON 25.10.2017 RESPONDENT(S)' EXHIBITS ----------------------EXHIBIT R5(A) TRUE COPY OF THE PROPOSAL SUBMITTED TO THE UNIVERSITY, DATED 9.5.17 SUBMITTED TO THE UNIVERSITY EXHIBIT R5(B) TRUE COPY OF THE PROCEEDINGS OF THE MANAGING COMMITTEE HELD ON 8.10.2017 IS HEREWITH FILED AND MARKED AS EXHIBIT R5(B) EXHIBIT R6(A) TRUE COPY OF THE ORDER OF APPOINTMENT DATED 14.5.2009 EXHIBIT R6(B) TRUE COPY OF THE REPORT ON 20.12.2013 EXHIBIT R6(C) TRUE COPY OF THE ORDER DATED 13.10.2017** **TRUE COPY P.S. TO JUDGE** ## **EL** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.32856 of 2017-F ------------------------------------------- _Dated this the 7[th] day of November, 2017_ ## _**JUDGMENT**_ Petitioner, who was appointed as a Lecturer in Physical Science in the 5[th] respondent Training College in the year 2005 and presently working as Assistant Professor in General Education, has filed this writ petition challenging the orders Exts.P7 and P12 by which the M.G University directed the manager to retain the petitioner in the post in Physical Science and to appoint the 6[th] respondent against the post in General Education. 2. The petitioner was initially appointed as Lecturer in Physical Science in the leave vacancy of Smt. Susmitha, the regular Lecturer in the post, for the period from 10.1.2005 to 31.1.2009. While continuing so, an additional post of Lecturer was sanctioned in the Physical Science in the year 2007-08, and thereupon her appointment was approved against the regular vacancy as per Ext.P2 order w.e.f 21.8.2007. Subsequently, the Principal Sri. Anil kumar, who was a General Education hand, retired from service on 31.03.2011. Consequent to this, a vacancy of Assistant Professor 2 W.P(C) No.32856 of 2017-F arose in General Education. Being a Post Graduate in Physical Science with M.Ed. in General Education, Ph.D and NET in Education and qualified for appointment against both the posts, petitioner requested the Manager to shift her to the post in General Education pointing out that there was dearth of students in Physical Science. The 5[th] respondent thereupon issued Ext.P4 order on 6.5.2011 shifting and appointing the petitioner as Assistant Professor in General Education w.e.f 2.5.2011. However, this shifting/appointment is not approved so far. None of the parties have a case as to whether approval was sought for the shifting or that approval was declined. At any rate, there is neither approval nor an order rejecting approval. 3. The 6[th] respondent- Smt. Saritha was selected for appointment against the leave without allowance vacancy of Smt. Susmitha, which the petitioner was occupying till her shifting against the regular post in 2007. She was appointed for the period from 10.12.2008 to 31.05.2009. When the 5[th] respondent notified vacancy in Physical Education and invited applications, she filed W.P.(C)No.19912 of 2009, seeking directions to the manager to appoint her. Since the Management contended that there were no vacancies, that writ petition was disposed of on 7.2.2011, directing that 3 W.P(C) No.32856 of 2017-F she shall be considered as and when vacancy arises in Physical Science or General Education. Thus since 2008, she has been after the management requesting to appoint her. Smt. Anitha, who was promoted as Principal, when Sri. Anilkumar retired on 31.3.2011, was a Natural Science hand. The 5[th] respondent appointed Smt.A.S.Suneethi as Assistant Professor in Natural Science in the vacancy of Dr. Anitha. The 6[th] respondent had filed W.P(c). No.14927/2011, praying for a direction to the respondents - the Principal and the Manager, to appoint her in any of the vacancies in the College, complaining that the management was denying appointment to her, by shifting the vacancies from one subject to another. She sought for appointment as Lecturer in Physical Science or in General Education as she is having the requisite qualification in both the subjects. That writ petition was disposed of by Ext.P15 judgment. As seen from para.5 of the judgment, the manager had filed a counter affidavit in that case, stating that there were 2 teachers in the college qualified to teach Physical Science - Smt.P.S.Susmitha and Seeja K.R (the petitioner herein). It was also stated that Seeja K.R had been shifted to the post of General Education for want of sufficient student strength to maintain 2 teachers in the optional subject Physical Science and that there were only 22 students for Physical Science. W.P(C) No.32856 of 2017-F 4 This Court thereupon found that there was no vacancy in the post of Physical Science or General Education and therefore it was not possible for this Court to issue any direction to the Manager to appoint the 6[th] respondent. However, the writ petition was disposed as per Ext.P15 judgment on 15.2.2013 directing that the 6[th] respondent shall be given appointment against the next arising vacancy in the post of Physical Science or General Education and directing that in case any such vacancy arose the management shall not shift the vacancy without appointing the petitioner. As against this judgment Ext.P15, the 6[th] respondent had filed a review petition on the basis of certain documents she subsequently received. The R.P was dismissed. The 6[th] respondent thereafter filed W.A.No.375/2014 against Ext.P15 judgment. 4. In the W.A .375 of 2014, Smt.A.S.Suneethi is seen arrayed as 6[th] respondent, though she is not seen included in the party array in Ext.P15. In the writ appeal, the 6[th] respondent herein-Smt. Saritha claimed appointment against the vacancy in General Education, saying that vacancy which arose consequent to the retirement of the Principal, was in General Education, which was the subject of the Principal and not in the subject of the teacher, who got promoted as Principal. Smt.A.S.Suneethi had got 5 W.P(C) No.32856 of 2017-F appointment as Assistant Professor in General Science. Even though the 6[th] respondent's contention was that the vacancy had arisen in the subject General Education and that the shifting of the petitioner-Seeja to the vacancy in General Education was not correct and that by such shifting of Seeja, she was being denied appointment, 6[th] respondent never made Seejathe petitioner herein, a party to any of her writ petitions. The 6[th] respondent's case was that the 5[th] respondent shifted the petitioner to that vacancy in order to defeat her claim. In all these judgments-Exts.P15, P5 and P6, there is reference to the shifting of Seeja-the petitioner. 5. In the writ appeal, the version of the 5[th] respondent to justify the shifting of the petitioner was that there was no sufficient student strength to retain 2 teachers in Physical Science, as per the NCTE guidelines and that the number of students in Physical Science was only 22. According to them since the petitioner had already become excess, it was necessary to shift the petitioner. Accepting the contention of the 5[th] respondent, the Division Bench held that the shifting of the petitioner to the post in General Education could not be said to be illegal. Ext.P5 judgment also refers to the version of University as well as that of the Government, on the shifting. Government stated before this Court that vacancy in General Education was 6 W.P(C) No.32856 of 2017-F filled up by shifting the petitioner. Therefore, though the University had in their counter affidavit stated that a vacancy existed in General Education, this Court held that the averments in the said affidavit would not lead to an indication regarding the existence of an actual vacancy and it was found that there was no vacancy in the General Education as found in the judgment Ext.P15 and therefore no interference was required to that judgment. 6. In the meanwhile, Government found that the approval it granted for the appointment of Smt.Suneethi in General Science consequent to promotion of Dr.Anitha as Principal w.e.f 1.4.2011, was not correct. The 6[th] respondent, on coming to know about this, claimed that the appointment of Smt.Suneethi was irregular since no vacancy was liable to arise on promotion as Principal. The 6[th] respondent thereupon filed a review petition against the judgment in W.A.No.375 of 2014. She also challenged the appointment of Smt.Suneethi in the discipline of Natural Science. In the R.P also, the shifting of the petitioner came up for consideration as the 6[th] respondent pointed out that the shifting was not approved by the Department. While so, Government issued orders cancelling the appointment of Smt.Suneethi, on 23.9.2014. On the basis of a report from the Deputy Director of Collegiate Education, Ernakulam, the Government, W.P(C) No.32856 of 2017-F 7 by G.O.(Rt) No.2246/14/H dated 23.09.2014 had cancelled the permission granted to the college to fill up the vacancy in Natural Science and hence the appointment of Suneethi. Smt.Suneethi who was continuing in the post with approval, filed W.P.(C).No.25381 of 2014 challenging the Government Order, alleging that it was passed without notice to her. It was disposed of directing the Government to pass orders after hearing her. While disposing it, it was observed that her appointment could not have been made. She thereupon filed Writ Apeal No.844/2015. The Division Bench in Ext.P6 judgment found that the direction to the Government to reconsider the case was not liable to be interfered with. However the observation of the learned Single Judge that Smt.Suneethi could not have been appointed was deleted. As the 6[th] respondent herein also staked a claim for the post in General Education, she was also directed to be heard by the Government. The review petition filed by the 6[th] respondent against the judgment Ext.P5 as well as the writ appeal filed by Smt.Suneethi were disposed of by Ext.P6 judgment directing the Government to consider the matter with notice to both Suneethi and Saritha. It was also observed that the consideration of the case of Saritha -the 6[th] respondent, shall be untramelled by any adverse findings against the 6[th] respondent in the judgment Ext.P5. In paragraph 7 of the 8 W.P(C) No.32856 of 2017-F ## judgment Ext.P6 the Division Bench observed as follows: “7. xxx xxxx xxxxx In so far as shifting of Smt.Sheeja which took place on 2.5.2011 is concerned, not only in the previous proceedings but also in the present proceedings Sheeja is not impleaded as a party. Therefore, nothing herein can be of any prejudice to Sheeja either in relation to her appointment or shifting.” 7. Government thereafter issued Ext.P7 order after hearing the 6[th] respondent, Smt.Suneethi and the management. Government found that as per the staff pattern of the training colleges, one teacher alone is essential for every optional subject and that Principal does not have any exemption from teaching, Smt.Suneethi was not entitled to get appointment. Since the appointment of Suneethi was made based on the permission of Government, and Government could detect the mistake and cancel the appointment only after the lapse of 3 years and Smt.Suneethi continued on the basis of the interim order, the Government found it fit to allow Smt.Suneethi after creating a supernumerary vacancy. 8. In Ext.P7 Government found that there were 12 teaching posts sanctioned in the college as per the staff pattern approved by the University; there are 3 posts for General Education and 2 posts for Physical Science and one post each for other subjects including Natural Science. It was also found that the 6[th] respondent had a legitimate claim for a posting in a future 9 W.P(C) No.32856 of 2017-F vacancy either in Physical Science or in General Education, in the light of the judgment dated 7.2.2011 in W.P.(C) No.19912 of 2009 filed by her as clarified by order dt.24.02.2011 in I.A.No.2711/2011 in that writ petition. Government found that the management had been taking a double standard in the case of the 6[th] respondent as and when her turn for appointment arose and denied her appointment in 2011 also when vacancy arose on account of the retirement of the Principal. It was further found that there existed a vacancy in General Education w.e.f 1.4.2011 which was filled up by shifting the petitioner and that the action of the management in having filled the vacancy by shifting the petitioner without sanction from Government was irregular and that management had no right to reduce a post in the Physical Education wing without substantive reason and permission from the Government. It was also found that the University has not approved the shifting. It further stated that the University's opinion regarding the prerogative of the management to shift a teacher from one Department to another cannot justify the action of the management when it reduces a post in Physical Science Department. It further found that the University had not approved the appointment of the petitioner in the General Education Department even though the vacancy arose in 2011 and shifting was done 10 W.P(C) No.32856 of 2017-F in 2011. Government further found that in the light of the observations in paragraph 7 of Ext.P6 judgment, the decision of the Government cannot be of any prejudice to the petitioner. Thereafter, it was directed in paragraph ## 12 as follows: “12. Government have examined the matter in detail. In view of the facts and circumstances stated above, the management of SNM Training College, Moothakunnam is directed as follows: I To revert Smt.K.R.Seeja to Physical Science Education in which she was initially appointed and in which her appointment was approved by the University with her written consent as her appointment in General Education has not been approved either by University or Government. II To fill up the vacancy in the General Education (arose on 1.4.2011) vice Smt. K.R.Seeja reverted as directed above or in the Physical Science Education held by Smt.K.R.Seeja before her shifting on 2.5.2011 as that post has not been cancelled by Government. III To consider the claim of Smt. V.K.Saritha for appointment in the vacancy of General Education (arose on 01.04.2011) or in the vacancy of Physical Science Education as per the orders of the Hon'ble Court in WP(C). No.19912/2009 dated 7.2.2011 and order dated 24.2.2011 in IA.No.2/11/2011 in WP(C).No.19912/2009 and as per the Rules and Statutes of the MG University. IV To create a supernumerary teaching post from the date of approval of appointment of Smt.Suneethi by the M G University (3.9.2012) vide UO no.3332/B1/2013/Acad dt.19.6.2013 of MG University and she is allowed to continue in service in that post which must be regularised in the next arising suitable regular vacancy. The Director of Collegiate Education/Deputy Director of Collegiate Education, Ernakulam will monitor the compliance of the directions issued in this regard. The judgment read as 5[th] paper above is thus complied with.” 9. Thus the direction was to revert the petitioner to the post in Physical Science in which she was appointed, which the University had approved, with her written consent as her appointment in General Education has not been approved either by University or Government; to fill up the vacancy in General Education by the petitioner after her reversion or fill up W.P(C) No.32856 of 2017-F 11 the vacancy in Physical Education in which petitioner was continuing before shifting on 02.05.2011 and to consider the claim of the 6[th] respondent for appointment in the vacancy of General Education or in the vacancy of Physical Science. 10. Apparently after coming to know about the order Ext.P7, the petitioner submitted Ext.P8 representation before the 5[th] respondent on 18.04.2016, requesting to take steps to allow her to continue in the post in General Education. The 5[th] respondent thereafter appointed the 6[th] respondent as Assistant Professor in Physical Science with effect from 01.06.2016, in the vacancy of the petitioner whose appointment was shifted to General Education with effect from 02.05.2011. 11. When this order appointing the 6[th] respondent was forwarded to the University for approval, it was found that salary was being drawn by two teachers against both the posts available in Physical Science and therefore the University directed the 5[th] respondent to forward orders in terms of the direction of the Government in Ext.P7 order. The 5[th] respondent thereupon informed that the petitioner had not furnished consent for her reversion to Physical Science. The syndicate considered all these in its meeting held on 16.08.2017 and found that the shifting of the W.P(C) No.32856 of 2017-F 12 petitioner to the vacancy in General Education was not approved either by the University or the Government and therefore the shifting was liable to be cancelled. The syndicate decided to direct the manager to revert the petitioner against the 2[nd] post in Physical Science based on which she is drawing salary and to appoint the 6[th] respondent in the 3[rd] post in General Education. 12. The petitioner filed the writ petition mainly on the ground that the order is passed contrary to the direction in Ext.P6 judgment where this Court directed that no prejudice shall be caused to her on account of the decision pursuant to Ext.P6 judgment. It is also urged that the Government's direction was to revert her with her consent. Therefore, as long as there is no consent she cannot be reverted to the post in Physical Science. It is her further case that the University as well as Government had been taking the stand that shifting is the prerogative of the management. It is also pointed out that she was shifted at a time when there was dearth in workload and there were only 22 students in the subject for which 2[nd] post was not admissible. It is pointed out that the judgment Ext.P15 was rendered after accepting this explanation of the management. Pointing out the counter affidavit of the Government and the observations in the judgments Exts.P5 13 W.P(C) No.32856 of 2017-F and P6 it is argued that the University or the Government cannot now take a different stand contrary to what they stated before this Court. It is also pointed out that she was not made a party in any of the cases the 6[th] respondent filed, despite the fact that she was staking a claim against a vacancy occupied by her. It is her further case that in the University website she is figured as a teacher in General Education; she is sent for invigilation and other courses and programmes as a teacher in the General Education. For the last 7 years she has been taking classes in General Education. It is also pointed out that in case she is shifted at this stage it will affect her promotion as Associate Professor, for which there should be requisite number of hours of teaching for particular number of years. The API Score is determined on the basis of the total teaching hours in the subject. In Physical Science there will not be sufficient or any teaching hours for her as the available teaching hours are insufficient even for the senior teacher in the subject. 13. On the other hand, it is the case of the 6[th] respondent that she was being sidelined right from 2008 by denying appointment. It is pointed out that as long as the shifting is not approved it is not necessary to challenge the same especially when the petitioner continues to draw her W.P(C) No.32856 of 2017-F 14 salary as a Physical Science teacher. As this Court had already directed to consider her against a future vacancy in Physical Science or in General Education, the 5[th] respondent ought to have appointed her when the Principal retired. Even though the 5[th] respondent appointed her in Physical Science, subsequent to Ext.P7 order, her appointment is not so far approved. In the absence of approval, the petitioner has no right to continue in another subject and she cannot block appointments in both the subjects. 14. Counter affidavits are filed by all the parties. The petitioner has filed reply affidavit, additional reply affidavit and produced additional documents. 15. Heard Smt. V.P. Seemanthini, the learned Senior Counsel for the petitioner, Sri Jaju Babu, the learned Senior Counsel for the 4[th] and 5[th] respondents, Sri. Ashok M.Cheriyan the learned Standing Counsel for the University, Sri. P.C.Sasidharan the learned Counsel for the 6[th] respondent and Sri. Unnikrishna Kaimal, the learned Government Pleader. 16. It is an admitted fact that both the petitioner and the 6[th] respondent are having the qualification for appointment as Assistant Professor in Physical Science as well as General Education. It is also admitted that there is no provision for shifting a teacher in one subject to 15 W.P(C) No.32856 of 2017-F another in the University Act or Statute. However, the University or the Government did not raise any objection to the said shifting ever since 2011. The stand of the Government till Ext.P6 judgment was that it is the prerogative of the management to shift teachers. The petitioner relies on Ext.P13 letter dated 07.08.2006 of the Registrar of the University informing that she was eligible for appointment as Lecturer in General Education. By Ext.P14 letter dated 29.08.2006, the Registrar informed her that the appointment of Lecturers, shifting of appointment, transfer, etc. are the prerogative of the management. However, these letters cannot be with reference to her shifting done in the year 2011 or a shifting to another subject. Even though Government supported the petitioner in the previous case, in Ext.P7 order Government found that a shifting without the permission of Government, that too, resulting in reduction of a sanctioned post in Physical Science cannot be permitted, because the petitioner continues to draw salary by virtue of her appointment as a teacher in Physical Science, blocking appointment in Physical Science/General Education. 17. Coming to the factual circumstances it can be seen that the petitioner has been working as Lecturer/Assistant Professor on the strength W.P(C) No.32856 of 2017-F 16 of Exts.P1 and P2 orders of approval on her appointment in Physical Education right from 01.06.2005. By Ext.P4 order she was shifted to the vacancy in General Education from 06.05.2011. But that shifting is not approved. It appears that approval was never sought for the same from the University. As seen from the judgments Exts.P15, P5 and P6, the reason for shifting, as stated by the management, was that the fall in student strength in Physical Science and deficiency in workload for the 2[nd] post in Physical Science. This Court accepted that explanation in the judgments Exts.P15, P5 and P6. As at present the number of students in Physical Science is only 18 and there is no requirement for the 2[nd] post; petitioner apprehends that a shifting back will result in retrenchment of a senior hand to accommodate a junior. If at all she is not retrenched, it is pointed out that she will lose promotion as Associate Professor, which requires, requisite teaching hours for a certain number of years and therefore even if she is allowed to continue in the 2[nd] post in Physical Science, she will be deprived of her opportunity to get promotion which is due. 18. On the other hand, the 6[th] respondent has been after the 5[th] respondent for appointment right from 2008. For the first appointment itself she had to approach this Court even after being rank no.1 and vacancy was W.P(C) No.32856 of 2017-F 17 remaining unfilled. After she got appointment for the period from December 2008 to March 2009, she filed another writ petition in 2009, when this Court directed that she shall be considered against the vacancies arising in Physical Science or General Education. When the next vacancy arose in General Education, that vacancy was filled up by shifting the petitioner and that shifting is not approved; the petitioner continues to draw salary by virtue of approval in Physical Science. 19. As at present there are only 19 students for the Physical Science. According to the University, approval cannot be granted against a fresh appointment in Physical Science against the 2[nd] post, going by the strength of students. At the same time, it is pointed out that a teacher like the petitioner continuing in the post with approval will not be retrenched for want of student strength and both the petitioner and the 6[th] respondent would be able to continue if the petitioner is sent back to Physical Science; and the 6[th] respondent is appointed in the vacancy in General Education. At the same time, this will result in a situation where the petitioner sould not have any teaching hours resulting in deprivation of promotion despite her 12 years' service while the 6[th] respondent would have sufficient teaching hours in General Education. W.P(C) No.32856 of 2017-F 18 20. The petitioner's contention is that the impugned proceedings should have been issued only if she had given consent, as directed by Government and any order passed shall not affect her prejudicially. When admittedly there is no provision for shifting, the only defence of the petitioner lies in the fact that she was not made a party to the writ petitions and that there is dearth in student strength. 21. The provisions contained in Section 62(2) of the Mahatma Gandhi University Act, 1985 was relied on by both sides, which read as follows: “62. _Conditions of service of teacher of Private Colleges.-_ xxxx xxxxxx xxxxxxx xxxxxxx xxxxxx xxxxx(2) Notwithstanding anything contained in this Act, the Statutes, Ordinances and Regulations made thereunder,- (a) a person appointed as teacher in a private college in a temporary vacancy on or after the 14th day of March, 1974 and continuing as such, shall be appointed as teacher in any permanent vacancy or any temporary vacancy of longer duration that may arise, after such appointment in the temporary vacancy, in the private college or, as the case may be; any of the private colleges under the management of the educational agency within the University area; (b) a teacher relieved from a private college on or after the 14th day of March, 1974 due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed or for any other reason except disciplinary action against him shall be given preference in the matter of future appointments in the private college or, as the case may be, any of the private colleges under the management of the educational agency within the University area. (c) any dispute arising or pending between the management of a private college and the teacher of that college in respect of any matter coming under clause (a) or (b), shall, be decided in accordance with the provisions of this Act and the Statutes made thereunder. _Explanation.-_ Where the number of claimants under clause (a) or clause (b) is more than the number of vacancies, the order of preference for appointment shall be in accordance with the date of first appointment of the claimants under the educational agency within the University area.” W.P(C) No.32856 of 2017-F 19 Section 62(2)(b) of the Act operates when a teacher is faced with retrenchment. In case the shifting of the petitioner was to avoid retrenchment, it cannot be said to be illegal, as the petitioner was qualified for appointment in General Education also. Having rendered service from 2005 onwards she would be entitled to preference to anybody with lesser service. While issuing Ext.P7 or Ext.P12 orders the Government or the University has not considered the circumstances under which shifting was ordered. 22. The 6[th] respondent who has been filing cases one after another pointing out the shifting and claiming appointment in General Education, never chose to implead the petitioner in any of the cases. Therefore, the contention that she needs to challenge an appointment only on its approval, relying on the judgment in **Mother Anasthasia v. University Appellate Tribunal** [1980 KHC 176] cannot be accepted, in a case where it is known to her ever since the order Ext.P4 was issued shifting the petitioner in May, 2011 and in all the judgments in the cases filed by the 6[th] respondent, the name of the petitioner or her shifting was referred to. 23. At any rate, a shifting to the Physical Science subject after a period of more than 6 years will practically deprive the petitioner of the 20 W.P(C) No.32856 of 2017-F benefit of promotion in the absence of any teaching hours to her credit in Physical Science. At the same time, an approval to the appointment of the 6[th] respondent will not be possible without sufficient workload. Government had been taking the stand that the shifting is the prerogative of management. Thereafter, in Ext.P7 order, they raised objection, that shifting was done without their approval. They also directed that the consent of the petitioner should be obtained in the event of a reversion or else the appointment of the 6[th] respondent can be in Physical Science. The petitioner was not heard either by the Government or by the University. Nor is her consent obtained as directed in Ext.P7. Neither of them have considered the circumstances under which shifting was ordered. As rightly argued by the learned Senior Counsel, the order Ext.P12 issued without hearing the petitioner is therefore violative of the principles of natural justice, as it results in prejudice to the petitioner, as held in the judgment in **Ajithkumar K.V V State of Kerala ILR 2017 (3) Kerala 181** . Even though the shifting was not sent for/granted approval, the explanation for such a shifting was known to the University as well as the Government and the educational authorities and they supported the same in the proceedings before this Court even in the absence of the petitioner in the party array. Exts.P15 and P16 documents 21 W.P(C) No.32856 of 2017-F by which the University assigned duties to the petitioner in connection with the subject General Education, the personal profile of the petitioner published in the website of the University, all will indicate that they accepted and supported the shifting. Even in Ext.P7 and Ext.P12 orders, Government as well as the University have only stated that shifting was done without permission and that approval is not granted to the shifting by either of them. They have not stated that approval cannot be granted. As per the order passed by Government, the petitioner could have been allowed to continue in either of the posts with her consent. Similarly the 6[th] respondent could have been appointed in either of these posts, depending on the consent of the petitioner. But Government did not consider whether the number of students as well as the workload permitted the same. The University also has not considered the consequences of posting the petitioner back to Physical Science, after they themselves treated her as one in General Education, as seen from their web portal, Exts.P15, P16, etc. Ext.P18 norms would show that the academic performance is assessed on the basis of the number of teaching hours and a shifting back to Physical Science would deprive the petitioner of her chances for promotion as Associate Professor. Therefore, it cannot be said that just because the 22 W.P(C) No.32856 of 2017-F University did not grant approval to the shifting, it was not necessary for the University to comply with the principles of natural justice. Therefore, it is only just and proper that Government takes a decision afresh after hearing all the parties and the University considers the case depending on the said decision, after hearing the parties. 24. As the learned Counsel for the University pointed out that approval against a fresh appointment will not be possible with the present strength of students in Physical Science; whereas the appointment already made would not be affected, it will be open to respondents 1 and 2 to examine whether the petitioner as well as the 6[th] respondent can be allowed to continue in the College, by retaining the lien of the petitioner in the post in Physical Science and allowing her to continue to teach General Education, and by appointing the 6[th] respondent in the post in General Education and allowing her to continue to teach Physical Science. The writ petition is therefore disposed of with the following directions:- (i) In order to facilitate a fresh decision, I quash Ext.P7 order passed by Government to the extent it relates to the petitioner and the 6[th] respondent and the order Ext.P12 as well as the decision leading to the W.P(C) No.32856 of 2017-F 23 same; (ii) There shall be a direction to the 1[st] respondent to pass orders afresh after affording an opportunity of hearing to the petitioner as well as respondents 4,5 and 6 within a period of two months; (iii) The University shall consider the case thereafter, depending on the decision of the Government, after affording an opportunity of hearing to the petitioner and respondents 4 to 6, within a further period of two months; (iv) The 6[th] respondent shall be allowed to continue as Assistant Professor in Physical Science, subject to the decision to be taken by respondents 1 and 2. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_