V. Sainabha v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** ## **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 7TH SEPTEMBER 2011 / 16TH BHADRA 1933** **WP(C).No. 115 of 2011(L)** **------------------------** ## **PETITIONER** - **------------------** **V.SAINABHA, LECTURER IN BOTANY, FAROOK COLLEGE, KOZHIKODE,W/O.V.T.AHAMMED IQBAL, AGED 51,19/1404 B,GULSHAN ,PO,CHALAPPRAM,CALICUT.** **BY ADVS. SRI.K.S.MADHUSOODANAN** **SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR** ## **RESPONDENT(S):** **-------------------------** **1. STATE OF KERALA TO BE REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT,GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695 001.** **2. DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM, 695 033.** **3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOZHIKODE 673 001.** **4. UNIVERSITY OF CALICUT, THENJIPALAM 673 635,REPRESENTED BY REGISTRAR.** **5. PRINCIPAL,FAROOK COLLEGE, FAROOK 673 632** **R4 BY ADVS. SRI.P.C.SASIDHARAN, SC, CALICUT UTY. SRI.K.M.FIROZ FOR R5 SMT.M.SHAJNA FOR R5 SRI.SANTHOSH MATHEW FOR R4 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 115 of 2011(L)** **----------------------------------------** ## **APPENDIX** **--------------** ## **PETITIONER'S EXHIBITS** ## **-----------------------------------** **EXT.P1. COPY OF THE REAPPOINTMENT ORDER BEARING NO.G2-338/2009 DATED 1.7.09 ISSUED BY MANAGE, FAROOK COLLEGE.** **EXT.P2. COPY OF THE APPROVAL ORDER BEARING NO.GAII/A1/2281/09 DATED 11.11.09 ISSUED BY 4TH RESPONDENT.** **EXT.P3. COPY of the POST ADALATH REVIEW FOR THE YEAR 2001-03 IN FAROOK COLLEGE.** **EXT.P4. COPY OF THE SHOW CAUSE NOTICE BEARING NO.D4-8371/09 DATED 29.1.010 BY 3RD RESPONDENT TO THE 5TH RESPONDENT.** **EXT.P5. COPY OF THE LETTER OF THE 3RD RESPONDENT TO 2ND RESPONDENT BEARING NO.D4-8371/09 29.1.10.** **EXT.P6. COPY OF THE REPLY OF THE 5TH RESPONDENT to the 4TH RESPONDENT BEARING NO.G2-338/09 DATED 4.2.10.** **EXT.P7. COPY OF THE LETTER OF THE 3RD RESPONDENT TO THE 2ND RESPONDENT BEARING NO.D4-8371/09 DATED 31.3.10** ## **RESPONDENT'S EXHIBITS : NIL** **---------------------------------------------** ## **/ TRUE COPY /** ## **P.A. TO JUDGE** **VK** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 115 of 2011-L** **- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of September, 2011.** ## **JUDGMENT** The petitioner seeks issuance of a writ calling for the records leading to Exts.P1 to P7 and for a direction to the third respondent to countersign the salary bill of the petitioner for the month of December, 2009 and the bills submitted thereafter for enabling her to get her salary. 2. The issue raised herein is in a narrow compass. The petitioner was appointed as per Ext.P1 order, as a Lecturer in Botany with effect from 9.7.2009. The said appointment was approved by the University as per Ext.P2 order. Ext.P3 shows that sufficient work load is there in the College. When the salary bills were forwarded for countersignature, by Ext.P4, the same were returned seeking certain clarification. Even though replies were given, the bills were not cleared raising various objections. 3. This is a case where the petitioner was initially appointed as a Junior Lecturer in Botany with effect from 1.9.1983 and was relieved on 11.2.1985. The said spell of appointment was approved by the fourth respondent University as per order dated 15.2.1984. It is averred in para 2 of the writ petition that her probation was also declared with effect from wpc 115/2011 2 8.12.1984. There was a reappointment from 2.1.1990 in a maternity leave vacancy of Smt. R. Sandhya Rani and the said appointment was also approved. The present vacancy arose on 31.3.2009 due to the retirement of Shri R.V. Ibrahim. 4. The objections raised by the third respondent in the counter affidavit are mainly that, even though Section 57(6) of the Calicut University Act provides for preference in the matter of future appointment to a teacher discharged from a private college on or after 14.3.1974, the petitioner was over-aged at the time of the present appointment. It is pointed out that the petitioner is aged 50 years at the time of reappointment, whereas the maximum age limit prescribed for the appointment as Lecturer is 40. The other objection is regarding the want of qualification prescribed by the UGC, viz. NET/Ph.D. 5. Heard learned counsel for the petitioner Shri K.S. Madhusoodanan, learned counsel for the Management Shri K.M.Firoz learned Standing Counsel for the University Shri Santhosh Mathew and the learned Government Pleader Smt. Rani Diothima. 6. Learned counsel for the petitioner submitted that the objections raised are on a misconception of the statutory provisions. Going by Section 57(6), the petitioner has got a preference for appointment. The right wpc 115/2011 3 conferred on the petitioner under the Statute cannot be whittled down by prescribing such new conditions. Learned counsel for the petitioner relied on the judgment of this Court in **Thomas v. Manager, Bishop Moore College** (1987 (1) KLT 613) and that of a Division Bench of this Court in **Balakrishnan v. Secretary to Government** (2005 (3) KLT 362). Reliance is also placed on the decision, **Sree Usha v. State of Kerala** (2008 (4) KLT 986). 7. The first objection raised is regarding the age. The relevant provision is Section 57(6) of the Act which reads as follows: “57(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 14[th] day of March, 1974 and continuing as such, shall be appointed as teacher in any permanent vacancy or any temporary vacancy of long 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 college under the management of the educational agency within the University area; (b) a teacher relieved from a private college on or after the 14[th] 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 wpc 115/2011 4 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 mater coming under clause (a) or (b), shall be decided in accordance with the provisions of this Act and 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.” It is clear from the said provision that the section starts with a non obstante clause. As rightly pointed out by the learned counsel for the Management, in the light of the non obstante clause the appointee need only satisfy the conditions provided in Section 57(6) of the Act. As regards the age factor, a similar issue was considered in **Thomas's case** (1987 (1) KLT 613). The provision considered therein is the Kerala University First Statutes, Statute 23(2). Therein, this Court was of the view that the fact that the petitioner is over-aged for seeking fresh employment is not of any consequence. Learned Govt. Pleader submitted that the said judgment was reversed by a Division Bench of this Court. It is explained by the learned counsel for the wpc 115/2011 5 petitioner that the judgment was reversed only on the question whether a person appointed in a leave vacancy, will get the right for re-appointment and not on the question as regards the interpretation of Statute 23. In the light of the above, the contention that the age factor will stand in the way of holding against the petitioner, cannot be accepted. In view of the non obstante clause in Section 57(6) of the Act, it is evident that the other conditions for fresh appointment will not govern the matter. What is conferred is a preference for appointment to a teacher who was relieved on or after 14.3.1974, under Section 57(6)(b), which is applicable here. Therefore, the said objection is without any basis. 8. Learned Govt. Pleader relied upon the decision of a Division Bench of this Court in **Corporate Manager's case** (1987 (2) KLT 662) wherein it was held that a person appointed in a leave vacancy, will not get any such right. Learned counsel for the petitioner submitted that therein the provision considered is different. 9. It is seen from the relevant provision quoted above, that importance is given to the words “relieved from a private college”, therein. The provision as of now is itself one substituted by Act 17 of 1989, evidently after the judgment in **Corporate Manager's case** (1987 (2) KLT wpc 115/2011 6 662) was rendered. The unamended Section 57(6) contained the words “a teacher discharged from a private college”. It was held by this Court, that a person appointed in a leave vacancy will not be covered by the said clause, as the appointment gets terminated automatically. The position after the amendment is different. The word “discharge” is no longer there in the said provision. Therefore, the interpretation placed by the Division Bench of the unamended provision, viz. Section 57(6) of the Act will not have any application. Going by the present provision, especially Sections 57(6)(a) and 57(6)(b), it can be seen that the relief of a teacher can be for various reasons including cessation of the period of appointment and the only exception is a case of disciplinary action. Hence, a person appointed in a leave vacancy will also get the benefit of reappointment. 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 this 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 wpc 115/2011 7 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. There is no question of fixation of any upper age limit at all to retrenched 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 wpc 115/2011 8 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 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** **v. State of Kerala** (2001 (3) KLT 161), wherein the interpretation of Rule 51A of Chapter XIV-A K.E.R. came 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 N.E.T. 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 9 wpc 115/2011 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. 14. In that view of the matter, as the University has again negatived the objections of the Director of Collegiate Education, in the light of the Division Bench decisions of this Court in **Cherian Mathew v. Principal, S.B. College, Changanassery** (1998 (2) KLT 144) and **Shalini Rachel v. Manager, Christian College** (2007 (3) KLT 355) the salary of the petitioner has to be disbursed consequent on the approval. For all these reasons, the writ petition is allowed. There will be a direction to the third respondent to disburse the salary of the petitioner in terms of the salary bills forwarded by the Principal, along with arrears, within a period of six weeks from the date of receipt of a copy of this judgment. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**