WA Nos.1599 & 1873 of 2019 (In the High Court of Kerala at Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942** ## **WA.No.1599 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 35765/2018(U) OF HIGH COURT OF KERALA DATED 21/5/2019** ## **APPELLANT/6TH RESPONDENT:** **DR. BALACHANDRAN S AGED 55 YEARS S/O SREEDHARAN NAIR P. RESIDING AT VAISHNAVAM, H.N.44, ANAND NAGAR, NEERAMANKARA, THIRUVANANTHAPURAM DISTRICT, IN-695 040, WORKING AS PRINCIPAL, NSS COLLEGE, OTTAPPALAM, PALAPPURAM, PALAKKAD-679 103.** **BY ADVS. SRI.CHERIAN GEE VARGHESE SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS** WA Nos.1599 & 1873/2019 -:2:- ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 5, 7 & 8:** - **1 DR.SREEDEVI.K.NAIR, AGED 56 YEARS, W/O. K.N.SATHEESH, RESIDING AT SREENIKETH, TC 17/1759, PURA 10, NETAJI ROAD, POOJAPPURA, TRIVANDRUM-695 012, WORKING AS ASSOCIATE PROFESSOR AND HEAD, DEPARTMENT OF ENGLISH, NSS COLLEGE FOR WOMEN, NEERAMANKARA, THIRUVANANTHAPURAM-695 040.** - **2 N.S.S. COLLEGES CENTRAL COMMITTEE REPRESENTED BY R.PRASANNA KUMAR, EDUCATION SECRETARY, NSS HEAD OFFICE, PERUNNA, CHANGANASSERY-686 102.** - **3 THE NAIR SERVICE SOCIETY REPRESENTED BY ITS SECRETARY G. SUKUMARAN NAIR, (CHAIRPERSON, COMMITTEE FOR SELECTION OF PRINCIPALS, N.S.S. COLLEGES) N.S.S. HEAD OFFICE, PERUNNA, CHANGANASSERY, PIN-686 102.** - **4 THE REGISTRAR UNIVERSITY OF CALICUT, THENHIPALAM, KOZHIKODE-673 635.** **5 THE PRINCIPAL SECRETARY HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.** - **6 DR.AZAD R.P. PRINCIPAL, NSS COLLEGE, COLLEGE ROAD, MANJERI, PIN-676 122.** - **7 DR.E.B.SURESH KUMAR PRINCIPAL, N.S.S. COLLEGE, RAJAKUMARI, KULAPPARACHAL P.O., IDUKKI-675 619.** WA Nos.1599 & 1873/2019 -:3:- **8 DR.VENUGOPAL S. PRINCIPAL, NSS COLLEGE, STATE HIGHWAY 58, NENMARA, PALAKKAD-678 508.** **R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1 BY ADV. SMT.N.SANTHA R1 BY ADV. SRI.V.VARGHESE R1 BY ADV. SRI.PETER JOSE CHRISTO R1 BY ADV. SRI.S.A.ANAND R1 BY ADV. SMT.K.N.REMYA R1 BY ADV. SMT.L.ANNAPOORNA R1 BY ADV. SHRI.VISHNU V.K. R1 BY ADV. KUM.ABHIRAMI K. UDAY R2 BY ADV. P.GOPAL(B/O) R4 BY ADV. P.C.SASIDHARAN(B/O) R6 BY ADV. SRI.P.K.RAVISANKAR** ## **OTHER PRESENT:** **R5 SRI. A.J. VARGHESE-SR. G.P.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19-012021, ALONG WITH WA.1873/2019, THE COURT ON 27-01-2021 DELIVERED THE FOLLOWING:** WA Nos.1599 & 1873/2019 -:4:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942** ## **WA.No.1873 OF 2019** **AGAINST THE JUDGMENT IN WP(C) 35765/2018(U) OF HIGH COURT OF KERALA DATED 21/5/2019** ## **APPELLANT/5TH RESPONDENT:** **DR.AZAD R.P AGED 56 YEARS S/O. C. K. MADHAVANA NAIR, RETIRED PRINCIPAL, N.S.S COLLEGE, MANJERI, 'CHEMBAKAM', KOLAKKATTUCHALY POST, CHELEMBRA, MALAPPURAM DISTRICT, PIN - 673 634.** **BY ADV. SRI.P.K.RAVISANKAR** ## **RESPONDENTS/WRIT PETITION & RESPONDENTS 1 TO 4:** **1 DR.SREEDEVI K.NAIR, AGED 57 YEARS, W/O. K. N. SATHEESH, ASSOCIATE PROFESSOR AND HEAD, DEPAREMENT OF ENGLISH (RETIRED), N.S.S. COLLEGE FOR WOMEN, NEERAMANKARA, THIRUVANANTHAPURAM - 695 040, 'SREENIKETH', TC 17/1759, PURA 10, NETAJI ROAD, POOJAPPURA POST, TRIVANDRUM - 695 012.** **2 NSS COLLEGES' CENTRAL COMMITTEE REPRESENTED BY R. PRASANNA KUMAR, EDUCATION SECRETARY, NSS HEAD OFFICE, PERUNNA, CHANGANASSERY - 686 102.** WA Nos.1599 & 1873/2019 -:5:- - **3 THE NAIR SERVICE SOCIETY REPRESENTED BY ITS SECRETARY, G. SUKUMARAN NAIR, (CHAIRPERSON, COMMITTEE FOR SELECTION OF PRINCIPALS, N.S.S COLLEGES), NSS HEAD OFFICE, PERUNNA, CHANGANASSERY - 686 102.** - **4 THE REGISTRAR UNIVERSITY OF CALICUT, THENHIPALAM, KOZHIKODE - 674 635.** - **5 PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.** - **6 DR. BALACHANDRAN. S. PRINCIPAL, N.S.S. COLLEGE, OTTAPPALAM, PALAPPURAM, PALAKKAD - 679 103.** - **7 DR. E. B. SURESH KUMAR PRINCIPAL, N.S.S. COLLEGE, RAJAKUMARI, KULAPPARACHAL POST, IDUKKI DISTRICT - 685 619.** - **8 DR. VENUGOPAL. S. PRINCIPAL, N.S.S. COLLEGE, STATE HIGHWAY 58, NEMMARA, PALAKKAD - 678 508.** **R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1 BY ADV. SMT.N.SANTHA R1 BY ADV. SRI.V.VARGHESE R1 BY ADV. SRI.PETER JOSE CHRISTO R1 BY ADV. SRI.S.A.ANAND, SMT.K.N.REMYA R1 BY ADV. SMT.L.ANNAPOORNA, SRI.VISHNU V.K. R1 BY ADV. KUM.ABHIRAMI K. UDAY R2 & 3 BY ADV.P.GOPAL R5 BY ADV.SR.GOVT.PLEADER SRI.A.J.VARGHESE R6-7 BY ADV. SRI.CHERIAN GEE VARGHESE R6-7 BY ADV. SRI.P.HARIDAS, SRI.P.C.SHIJIN R6-7 BY ADV. SRI.BIJU HARIHARAN R6-7 BY ADV. SRI.R.B.BALACHANDRAN R6-7 BY ADV. SRI.RENJI GEORGE CHERIAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19-012021, ALONG WITH WA.1599/2019, THE COURT ON 27-01-2021 DELIVERED THE FOLLOWING:** WA Nos.1599 & 1873/2019 -:6:- ## **J U D G M E N T** Dated this the 27[th ] day of January, 2021 ## _**Shaffique, J.**_ Respondents 5 and 6 in WP(C) No. 35765/2018 have preferred these appeals challenging judgment dated 21/5/2019. The writ petition was filed by Dr.Sreedevi K.Nair inter alia contending that though she was the senior-most teacher among the colleges managed by the Nair Service Society, overlooking her seniority, her juniors were promoted as Principal. She retired from service on 31/3/2019. The learned Single Judge after considering the respective contentions allowed the writ petition setting aside the ranked list (Ext.P13) and the Corporate Management was directed to recast the rank list in accordance with the seniority of candidates and thereafter to grant promotions. It was further held that the petitioner would be entitled to be promoted w.e.f. 17/5/2018 and that she shall be granted all consequential benefits except monetary benefits for the period up to her retirement. In fact, pursuant to the aforesaid WA Nos.1599 & 1873/2019 -:7:- directions, the Corporate Management has already issued order dated 28/6/2019 in compliance with the directions issued. 2. The appellants before us are persons who were already promoted based on Ext.P13 ranked list. In fact, they continued in that post and they have also retired from service. What remains for consideration is whether the appellants would be entitled for the benefits which they would have obtained based on the appointment made pursuant to Ext.P13 ranked list which is already quashed. In view of the judgment, their entitlement for fixation of pay and other allowances will be only on the basis of the promotions granted to them effective from the dates mentioned in the Corporate Management's order dated 28/6/2019. 3. There is no dispute about the fact that from among the teachers who had submitted their willingness for being appointed as Principal in the four vacancies, writ petitioner was the seniormost. But she was ranked No.5. There were only four vacancies and rank Nos. 1 to 4 were appointed as Principals of various colleges. As per S.57(3) of the Calicut University Act, promotion to the post of Principal shall be made on the basis of seniority WA Nos.1599 & 1873/2019 -:8:- cum fitness. However, University initially issued a direction to the Corporate Management to conduct a selection to the post of Principal in the available vacancies on the basis of merit. The selection committee after due evaluation prepared Ext.P13 rank list and the writ petitioner was ranked No.5. When a contention was raised by the writ petitioner that the promotion to the post of Principal has to be made on the basis of seniority as provided under the Statute, respondents 5 and 6, who are the appellants herein, took up a contention that the writ petitioner was not qualified as per the UGC Regulations since she did not have minimum 55% marks for her Postgraduate degree which according to them was an essential qualification. The learned Single Judge however found that in view of Clause 3.5.0 of UGC Regulations, a relaxation of 5% has to be provided from 55% to 50% of the marks to the Ph.D degree holders who have obtained their Master's degree prior to 19/9/1991. Since the writ petitioner is a person who had obtained her Master's degree prior to 19/9/1991 and as she is a Ph.D degree holder, she is eligible to be considered for appointment. In fact, the Corporate Management does not have any dispute regarding the eligibility of the writ WA Nos.1599 & 1873/2019 -:9:- petitioner to be considered for promotion. But they did not take into account the seniority on account of the instructions issued by the University to prepare the ranked list based on merit. 4. We heard the learned counsel Sri.P.Haridas and Sri.P.K.Ravi Sankar, learned counsel appearing on behalf of the appellants. 5. The first argument is based on the qualifications prescribed by UGC. Reference is made to Clause 3 and sub clauses to indicate that Clause 3.5.0 applies only in respect of persons who are to be appointed as Assistant Professors as evident from Clauses 3.3.1 and 3.3.2. But it is relevant to note that Clause 3.0.0 specifically deals with recruitment and qualifications. Clause 3.2.0 refers to Assistant Professors, Associate Professors, Professors, Principals, Assistant Directors of Physical Education etc., and it is stated that the minimum qualification will be those as prescribed by the UGC in the Regulations. The qualifications with reference to Principal is provided under Clause 4.2.0 and its sub-clauses, which reads as under:- WA Nos.1599 & 1873/2019 -:10:- ## _**“4.2.0 Principal**_ _“i. A master's Degree with at least 55% marks (or an equivalent grade in a point scale wherever grading system is followed) by a recognized University._ _ii. A Ph.D. Degree in concerned/allied/relevant discipline(s) in the institution concerned with evidence of published work and research guidance._ _iii. Associate Professor/Professor with a total experience of fifteen years of teaching/research/administration in Universities, Colleges and other institutions of higher education._ _iv. A minimum score as stipulated in the Academic Performance Indicator (API) based Performance Based Appraisal System (PBAS), as set out in this Regulation in Appendix III for direct recruitment of Professors in colleges.”_ 6. Apparently, the petitioner does not have 55% marks in Master's degree. But, as per Clause 3.5.0, which reads as under, a relaxation is provided for persons who have obtained Master's degree prior to 19/9/1991 and who has the Ph.D degree. _“3.5.0. A relaxation of 5% may be provided, from 55% to 50% of the marks to the Ph.D Degree holders, who have obtained their Master's Degree prior to 19 September, 1991.”_ This relaxation definitely applies for Principal as the relaxation mentioned at Clause 3.5.0 is of general nature and of course, it includes the qualification of Assistant Professors as well. That WA Nos.1599 & 1873/2019 -:11:- apart, Clause 4.0.0. specifically deals with direct recruitment and not recruitment by promotion. 7. Learned counsel appearing for the Corporate Management Sri.P.Gopal also agrees with the fact that the petitioner is entitled for relaxation. The learned counsel appearing for Dr.Sreedevi K.Nair, Sri.S.P.Aravindakshan Pillay supports the judgment of the learned Single Judge to the aforesaid extent. 8. Having heard the learned counsel on either side, we have no hesitation to approve the judgment of the learned Single Judge and we do not find any ground to interfere with the said judgment. 9. Learned counsel for the appellants made a further submission that the writ petitioner was not working in the Calicut University and the promotion by the Corporate Management could have been effected only from among the teachers who were working in the colleges affiliated to Calicut University. First of all, no such contention had been urged before the learned Single Judge and therefore there is no necessity for us to consider the same. The position of law is rather clear from the judgment of WA Nos.1599 & 1873/2019 -:12:- the Apex Court in _**Deepak Tandon and another v. Rajesh Kumar Gupta**_ [2019 (5) SCC 537] wherein the Apex Court held that if a plea regarding maintainability has not been raised and the competent authority did not decide the said question, it cannot be raised at a later stage of the proceedings. Even otherwise, when a Corporate Management has decided to conduct a selection process after receiving the willingness of senior teachers for selection and appointment to the post of Principal, curtailing the right of senior teachers to be posted as Principal by way of promotion, though the colleges are affiliated to separate universities, will render substantial injustice to senior teachers. However, we do not want to express any opinion in respect of the said contention as such an issue does not arise for consideration in the present case. 10. Yet another contention urged by the learned counsel for the appellants is that the procedure for promotion is virtually a direct recruitment. We do not think so. If it is a direct recruitment, notification has to be published on an all India basis from teachers qualified to be appointed as Principals. In the case on hand, the Corporate Management has sought for willingness WA Nos.1599 & 1873/2019 **==> picture [27 x 9] intentionally omitted <==** from teachers who wishes to be appointed as Principal and from among them, selection is being conducted, which clearly amounts to appointment by way of promotion as contemplated under the statute. In the result, we do not find any ground to interfere with the judgment of the learned Single Judge. Writ appeals are dismissed. **Sd/-** **A.M.SHAFFIQUE** **JUDGE** **Sd/-** Rp **GOPINATH P. JUDGE** WA Nos.1599 & 1873/2019 -:14:- ## **APPENDIX IN WA NO.1599/2019** **APPELLANTS' EXHIBITS:** **ANNEXURE 1** **TRUE COPY OF THE JUDGMENT IN WPC NO.16341/2019 DATED 14.8.2020.** **RESPONDENT'S EXHIBITS** **ANNEXURE R1(A) TRUE COPY OF THE UO NO.7414/2020/ADMN DATED 10/8/2020** WA Nos.1599 & 1873/2019 -:15:- ## **APPENDIX IN WA NO.1873/2019** **APPELLANTS' EXHIBITS: NIL** ## **RESPONDENT'S EXHIBITS** **ANNEXURE R1(A)** **TRUE COPY OF THE UO NO.7414/2020/ADMN DATED 10/8/2020** True Copy PS to Judge Rp