Shyla Hameed v. IQBAL College Trust & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943** ## **WP(C).No.19182 OF 2013(W)** ## **PETITIONER:** ## **SHYLA HAMEED** **SHA VILLA, CHINGELI, PULIPPARA P.O., KADAKKAL, KOLLAM, PIN-691536.** **BY ADVS. SRI.P.K.IBRAHIM SMT.K.P.AMBIKA SMT.A.A.SHIBI** ## **RESPONDENTS:** - **1 IQBAL COLLEGE TRUST, PERINGAMMALA, THIRUVANANTHAPURAM, KERALA, PIN-695563, REPRESENTED BY ITS SECRETARY.** - **2 THE PRINCIPAL IQBAL COLLEGE, PERINGAMMALA, THIRUVANANTHAPURAM, KERALA, PIN-695563** - **3 THE STATE OF KERALA HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001, REPRESENTED BY THE PRINCIPAL SECRETARY.** - **4 THE KERALA UNIVERSITY THIRUVANANTHAPURAM REPRESENTED BY ITS REGISTRAR** - **5 THE VICE CHANCELLOR KERALA UNIVERSITY, THIRUVANANTHAPURAM** - **6 THE SELECTION COMMITTEE CONSTITUED UNDER CHAPTER 2 OF THE KERALA UNIVERSITY 1ST STATUTE 1979 FOR APPOINTMENT TO THE POST OF ASST.PROFESSOR IN ECONOMICS NOTIFIED BY THE 1ST RESPONDENT REPRESENTED BY ITS CHAIRMAN, IQBAL COLLEGE TRUST, PERINGAMMALA, THIRUVANANTHAPURAM, KERALA, PIN-695563.** W.P.(C).No.19182/2013 2 - **7 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOLLAM-691001.** **8 RUBY MUSTHAFA AGED 38 YEARS D/O.SIRAJUDEEN, T.C.16/367, COTTON HILL, VAZHUTHAKKADU, THIRUVANANTHAPURAM.** **BY ADV. SRI.P.A.AHAMMED BY ADV. SRI.BENOJ C AUGUSTIN BY ADV. SRI.GOVIND PADMANAABHAN BY ADV. SMT.J.KASTHURI BY ADV. SRI.MANU V. BY ADV. SRI.NAGARAJ NARAYANAN BY ADV. SRI.PRATHAP PILLAI BY ADV. SRI.RAM MOHAN.G. BY ADV. SRI.G.P.SHINOD BY ADV. SRI.M.SREEKUMAR BY ADV. SRI.SAIJO HASSAN BY ADV. SRI.SEBIN THOMAS BY SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA BY ADV. SRI.THOUFEEK AHAMED BY ADV. SRI.VIVEK V. KANNANKERI BY ADV. SRI.GEORGE POONTHOTTAM,SC,KERALA UTY.** ## **GP SRI B HARISH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-03-2021, THE COURT ON 31-03-2021 DELIVERED THE FOLLOWING:** W.P.(C).No.19182/2013 3 ## **JUDGMENT** Dated this the 31[st] day of March, 2021 Petitioner claims a preferential right for appointment to the post of Assistant Professor in the 1[st] respondent college, as per the provisions of Section 57(6) of the Kerala University Act, 1974, which gives a preference in the matter of future appointments in the private colleges or as the case may be in any of the private colleges under the management of Educational Agency within the University area. 2. In support of the aforementioned prayer, it is averred that the petitioner passed MA (Economics) with first class and also qualified M.Ed. with first class. She qualified National Eligibility Test for lectureship in Economics as well as in Education as evident form the certificate Ext.P2. 3. On 13.07.2005 vide Ext.P3 the petitioner was appointed as lecturer in the department of general education in the Iqbal training College, Peringammala and worked till 14.11.2011. From 15.11.2011 she worked as a research associate in Kerala State Higher Education Council, Thiruvananthapuram. W.P.(C).No.19182/2013 4 4. Learned counsel appearing on behalf of the petitioner submitted that the directorate of Collegiate Education prepared a list of eligible candidates for appointment as guest lectures in Government and aided Colleges. The name of the petitioner was also in the list. The 1[st] respondent invited candidates from the list for guest lecturership in Economics and the petitioner stood first and was accordingly appointed as guest lecturer. She had worked as guest lecturer from 09.11.2012 to 15.03.2013 as per the experience certificate Ext.P5. Since the petitioner acquired a preferential claim under the provisions of Section 57(6)(b) of 1974 Act, submitted an application dated 26.04.2013 for appointment Ext.P6. There were fourteen (14) applicants for the post of Assistant Professor in Economics, though the process of selection was initiated it was a complete eyewash. Petitioner submitted a representation/complaint before the Government dated 29.07.2013 but of no avail. The memo Ext.P8 was issued by the 1[st] respondent to all the candidates except the petitioner for appearance in the interview. Candidate Ruby H. had only 55 marks in MA (Economics), whereas, the petitioner has more than 70%. It is understood that once she was appointed she would be W.P.(C).No.19182/2013 5 continuing in the college only until her appointment is approved. There was no criteria formulated for awarding the marks in the interview. Since the writ petition was filed 31.07.2013 and the interview was scheduled on 03.08.2013 notice was issued and the 1[st] respondent issued appointment order in favour of Ruby.H. It is in that background this writ petition was amended. It is settled law that any appointment in disregard to the preferential claim of the petitioner as per the provisions of the Act is totally uncalled for and illegal. In support of the contention reliance has been laid to the judgment of this Court reported as [2007 (3) KLT 509] in _**V.V.Sathimani**_ v. _**Payyannur Educational Society and Others.**_ 5. It was next contended that while admitting the writ petition it was ordered that selection to the post of Assistant Professor Economics in pursuance to the notification will be subject to the result of the writ petition. After the amendment was allowed, this Court ordered that select list, if any, pursuant to Ext.P1 shall not be approved to the extent it pertains to the selection to the post of Assistant Professor in Economics in Iqbal college-1[st] respondent. W.P.(C).No.19182/2013 6 6. On the other hand, learned counsel for the respondents 1 and 2 opposed the aforementioned prayer on the ground that selection was conducted by a duly constituted Selection Committee in terms of Statue 4(3) of chapter 2 of Kerala University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statute 1979. As per the aforementioned statute, Selection Committee would be of two representatives of the Educational Agency, a person nominated by the Educational Agency from amongst the Principal, Heads of Departments and Professors of the Colleges, one member chosen by the Educational Agency from amongst the Secretaries to the Government and the District Collectors and one expert chosen by the Educational Agency from a subject-wise list of experts prepared by the University. Constitution of the committee was in terms of the provision aforementioned and selection was done in all fairness and impartial manner. Petitioner, in fact, did not acquire any preferential claim for appointment to the post of Assistant Professor in Economics. Her claim on the basis of that she worked as a Guest lecturer in the college from 09.11.2012 to 15.03.2013 is wholly untenable. Similarly her claim on the basis W.P.(C).No.19182/2013 7 of Ext.P3 appointment, in fact, was in a different post having different qualifications and pay scale ie., lecturer in General Education in the Training College which cannot be equated to the post of Assistant Professor (Economics). The definition of the teacher under Section 2(27) is a principal professor, Associate Professor, Assistant Professor, Reader, Lecturer, Instructor or such other person imparting instructions or supervising each other whose appointment has been approved by the University. No material has been placed on record as to how and under what circumstances appointment of the petitioner was approved while undergoing the previous assignments. Section 57(6)(b) of the 1974 Act applies to the private aided colleges and has no application to self-financing colleges like respondent No.1. Post of guest lecturer cannot be equated with a regular post in private aided college as it is a provisional appointment on payment on hourly basis. Section 57 (6)(b) of the 1974 Act was intended to protect Lecturer and Assistant Professors appointed to regular vacancies on a temporary basis or for a temporary period and whose appointment have been approved by the University. 7. I have heard the learned counsel for the parties and 8 W.P.(C).No.19182/2013 appraised the paper book. 8. It would be axiomatic to produce the definition of teacher as per Section 2(27) and Section 57(6) of the Kerala University Act. The same reads as under: “Section 2(27) : “teacher” means a principal, professor, associate professor, assistant professor, reader, lecturer, instructor, or such other person imparting instructions or supervising research in any of the colleges or recognised institutions and whose appointment has been approved by the University;” Section 57(6): - (6) 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 W.P.(C).No.19182/2013 9 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 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 educational agency within the University area.]” 9. On perusal of Section 57(6)(b), a teacher relieved from a private college on or after 14.03.1974 due to the abolition of a course of study in that private college or cessation of a period for which he or she was appointed or for any other reason except for disciplinary action, shall be given preference in the matter of future of appointment in the private college whereas Section 2(27) gives different nomenclatures of the teachers. Provisions of the Act cannot be read in isolation but have to be read in conjunction. Sub section 2(27) reads a teacher's appointment ought to have been approved by the University. Since respondent No.1 is a self-financing institution and as there is no such previous appointment of the petitioner the benefits as sought to be claimed as a preferential right to appointment W.P.(C).No.19182/2013 10 cannot be granted. There is no dispute to the ratio _decidend_ i culled out in the judgment cited (Supra) which pertains to Calicut University Act which had the _pari materia_ provisions, but the judgment has not discussed the definition of teacher thus cannot be treated to be a judgment _in rem_ . No ground for interference is made out. The writ petition is dismissed. Sd/- AMIT RAWAL, Judge nak W.P.(C).No.19182/2013 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DT.18-42013 PUBLISHED IN A MALAYALAM DAILY.** **EXHIBIT P2 TRUE COPY OF THE CERTIFICATES IN RESPECT OF MA (ECONOMICS) M.ED., NET (EDUCATION) AND NET (ECONOMICS)** **EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER DT.13-7-2005 APPOINTING THE PETITIONER AS LECTURER IN THE DEPARTMENT OF GENERAL EDUCATION.** - **EXHIBIT P4 TRUE COPY OF THE CERTIFICATE DT.19-52012 ISSUED BY THE VICE CHAIRMAN, KERALA STATE HIGHER EDUCATIONAL COUNCIL.** **EXHIBIT P5 TRUE COPY OF THE EXPERIENCE CERTIFICATE DT. 17-6-2013 ISSUED BY THE PRINCIPAL, IQBAL COLLEGE.** **EXHIBIT P6 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DT.26-4-2013.** **EXHIBIT P7 TRUE COPY OF THE COMPLAINT DT.29-7-2013 SUBMITTED BEFORE R2 BY REGISTERED POST.** **EXHIBIT P8 TRUE COPY OF THE MEMO DT.18-7-2013 ISSUED TO ONE OF THE CANDIDATE NAMELY REMYA R.** **EXHIBIT P9 TRUE COPIES OF THE NOTICE ALONG WITH ITS POSTAL COVERS DAED 18.07.2013 & 29.07.2013**