State of Kerala and others v. Sainaba, Head of the Department of Botany, Farook College, and Principal, Farook College

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 11TH DAY OF JUNE 2018 / 21ST JYAISHTA, 1940 ## **WA.No. 275 of 2018 IN WPC. 35955/2015** AGAINST THE JUDGMENT IN WP(C) 35955/2015 of HIGH COURT OF KERALA DATED 02-11-2016 ## **APPELLANT(S)/RESPONDENTS 1 TO 3 IN W.P.(C** ) 1 STATE OF KERALA TO BE REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN - 695 001. 2 DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695 033. 3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOZHIKODE - 673 001. BY SR.GOVERNMENT PLEADER SHRI P.N. SANTHOSH ## **RESPONDENT(S)/PETITIONER & 4TH RESPONDENT IN W.P.(C):** 1. SAINABA HEAD OF THE DEPARTMENT OF BOTANY, FAROOK COLLEGE, FAROOK COLLEGE P.O., CALICUT - 673 612, W/O. V.T.AHAMMED, 19/1404 B. GULSHAN P.O., CHALAPURAM. 2. PRINCIPAL, FAROOK COLLEGE, FAROOK COLLEGE P.O., CALICUT - 673 632. R1 BY ADV. SRI.K.S.MADHUSOODANAN R1 BY ADV. SRI.M.M.VINOD KUMAR R1 BY ADV. SRI.P.K.RAKESH KUMAR THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON & DEVAN RAMACHANDRAN, JJ.** .............................................................................. ## **W.A.No.275 OF 2018** ......................................................................... **Dated this the 11[th] June, 2018** ## **JUDGMENT** ## **Devan Ramachandran, J.** This appeal, at the instance of the State of Kerala and its functionaries impugn the judgment of the learned Single Judge of this Court in W.P(C)No.35955 of 2015. 2. This writ petition was filed by the first respondent herein, who claimed that she is entitled to be re-designated as Assistant Professor w.e.f. 09.07.2009, in the services of the Farooq College, when she was appointed against a regular vacancy. 3. The learned single Judge found, on an assessment of clause 6.1.10 of the Government Order dated 27.3.2010, a copy of which has been appended to the writ petition as Ext.P2, that re-designation of Asst. Professors already in service in the prerevised scale of Rs.8000-13500/- earning them an AGP of Rs.6000/-. shall have to be done without insisting on any other **W.A.No.275 OF 2018** **2** condition than what are stipulated therein. The learned single Judge , after an evaluation of the requirements in the said clause, held that since it mandates that _all “ incumbent Readers and Lecturers (Selection Grade) who had not completed three years in the pay scale of Rs.12000-18300 on 1.1.2006 shall be placed at the appropriate stage in the Pay Band of Rs.15600-39100 with AGP of Rs.8000 till they complete 3 years of service in the grade of Lecturer(Selection Grade)/Reader , and thereafter shall be placed in the higher Pay Band of Rs.37400-67000 and accordingly re-designated as Associate Professor”_ the petitioner is entitled to the benefit of redesignation solely because she satisfies all the qualifications for such purpose therein. 4. The contention of the appellants herein is that the writ petitioner's entitlement to the re-designation should also be tested on the touchstone of the prescriptions in Clause 5.6 of Ext.P2 order, which provides that National Eligibility Test (NET) is compulsory for appointment at the entry level of Assistant Professor and that she cannot claim this solely on the basis of Clause 6.1.10 of Ext.P2. The assertion of the appellant is that the first respondent was, at no point of time, qualified under **W.A.No.275 OF 2018** **3** clause 5.6, i.e. to say, that she did not have NET qualification and therefore, that she cannot be granted the benefit under clause 6.1.10 of Ext.P2 without such qualification. 5. The learned Govt. Pleader submits that the petitioner cannot be entitled to an automatic benefit of re-designation, when she admittedly is not qualified. Even though the said submission appears to be lustrous at first glance, it loses its sheen immediately, when one examines the tenor of Ext.P1 judgment, that was obtained by the first respondent in an earlier writ petition. In Ext.P1 judgment, which was delivered by another learned Judge of this Court in W.P(C)No.115 of 2011, the contentions raised was that the petitioner was not entitled to be appointed against a regular vacancy that arose on 31.03.2009, because she was over aged and because she did not have the NET qualification. The learned Judge, in Ext.P1, negated both these contentions and found that the fact that the first respondent is over aged or that she did not have NET qualification, is irrelevant because the _“mere fact that a new qualification has been introduced does not mean that it has taken away the_ **4** ## **W.A.No.275 OF 2018** _statutory right already conferred on Rule 51A claiman_ t”. This view was taken by the learned Judge being guided by the binding precedents in this area in _**Balakrishnan vs. Secretary to Government**_ (2005(3) KLT 362), wherein it has been declared unequivocally that Section 57(6) of the Calicut University Act is in pari materia with Rule 51A of Chapter XIV A of K.E.R. The specific holdings and declaration in this judgment is as under:10 to 13. _“10. The preference given under Section 57(6) of the Act is akin to Rule 51A of Chapter XIV-A K.E.R. A Division Bench of the Court in Balakrishnan's case (2005(3) KLT 362), considered the question whether the age limit has any consequence in the matter of reappointment under Rule 51A of Chapter XIV-A K.E.R.. Therein, the Division Bench held as follows:_ _“It is not disputed that maximum age limit is prescribed under the Kerala Education Rules and it is applicable to Government Schools as well as aided schools. The fifth respondent was not over aged at the time of her first appointment. She was a retrenched teacher in view of R.51A. This matter was correctly considered by this Court in Sr. Annamma C. V. v. State of Kerala and Another, 1991 (2) KLJ 868. There is no question of fixation of any upper age limit at all to retrenched_ **5** ## **W.A.No.275 OF 2018** _teachers. Age limit has to be considered at the time of first appointment. Thereafter, her right under R.51A cannot be denied on the question of age limit. The vacancy of a Hindi teacher will arise in a private school rarely because there is only one post of Hindi teacher. If 51A claimants are denied appointment on the basis of age limit nobody will be absorbed under R.51A.”_ _The view taken is that the right of Rule 51A claimant cannot be denied on the question of age limit. Evidently, the same can profitably be used for the interpretation of Section 57(6) of the Calicut University Act, since the situation under both the provisions are similar. What is to be considered is for preference in the matter of appointment in a future vacancy._ _11. In Sree Usha's case (2008(4) KLT 986) also, the same question was considered. It was held that irrespective of age limit provided for direct recruitment, a beneficiary of Section 62(2)(b) of the Mahatma Gandhi University Act, is entitled to claim the statutory right. The relevant portion of the findings in para 9 reads as follows:_ _“S.62(2)(b) of the Act does not make the right of reappointment of a teacher who was discharged on cessation of the period for which he was appointed, subject to the maximum age for recruitment. If that be so, irrespective of the age limit provided for direct recruitment, a beneficiary of S.62(2)(b) is entitled to claim the statutory right. Any interpretation to the_ **6** ## **W.A.No.275 OF 2018** _contrary will be defeating the provision itself.”_ _12. One of the other questions considered therein is with regard to the requirement of NET for such an appointee. This question was also answered in the negative in paragraphs 13 and 14. Therein, reliance was placed on the decision of a Division Bench of this Court in Usha Ratnam vs. State of Kerala (2001(3) KLT 161), wherein the interpretation of Rule 51A of Chapter XIV-A K.E.R. ame up for consideration. It was held therein that_ _“ mere fact that a new qualification has been introduced does not mean that it has taken away the statutory right already conferred on Rule 51A claimant.”. In para 14 of the Judgment in Sree Usha's case (2008(4)KLT 986) it was held that:-_ “If that be so, the fact that NET was made a mandatory qualification, subsequent to their initial appointment cannot stand in the way of the petitioners.” _I respectfully agree with the said view._ _13. Therefore, the objections raised with regard to the appointment of the petitioner, cannot be sustained. Learned Standing Counsel for the University brought to my notice the communication issued by the University in answer to the letters from the Director of Collegiate Education. The University has reiterated the stand that under the provisions of the Calicut University Act, the petitioner is eligible for preference.”_ **W.A.No.275 OF 2018** **7** 6. Once the above declaration has already been made through Ext.P1 judgment, we fail to understand how the appellants can rake up those issue again as if it is _res nova_ , since through the said judgment, the petitioner's entitlement to be appointed as Asst.Professor, on the strength of Section 57(6) of the Calicut University Act, has already been declared without any cause for doubt. It is not disputed that this judgment has not been challenged by any of the respondents therein and that it has attained finality. 7. In such view of the matter, we cannot subscribe to the contentions of the appellants that merely because the petitioner did not have NET qualification, she should be deemed to be unqualified to be appointed to the post of Asst. Professor, and, therefore, that she should not be given re-designation as provided under clause 6.1.10 of Ext.P2 Regulations. Further, we are certainly in affirmation with the view of the learned single Judge, with which we are in complete agreement, that in any event of the matter, clause 6.1.10 of Ext.P2 does not prescribe any further conditions other than what is stated explicitly therein, **8** ## **W.A.No.275 OF 2018** which axiomatically means that the entitlement to re-designation therein does not depend upon the qualification or its absence at the time of initial appointment. 8. In such view of the matter and for the reasons stated above, we are compelled, being without any other option, to dismiss this appeal confirming the judgment of the learned single Judge. We order so. Needless to say, the appellants herein are obligated to abide by the directions of the learned single Judge and since the period granted in the said judgment has already expired, we deem it appropriate to fix a further period of one month from the date of receipt of a copy of this judgment, within which time all action pursuant to the judgment of the learned single Judge shall be completed and concluded by the appellants. ## **P.R. RAMACHANDRA MENON, JUDGE** ## **DEVAN RAMACHANDRAN, JUDGE** lk