IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
WP(C) NO. 28902 OF 2020
PETITIONER:
VISHNUPRASAD C.B., AGED 28 YEARS
S/O C.V.BALAKRISHNAN, VYSHNAVAM, AROOR P.O., CHERTHALA,
ALAPPUZHA DISTRICT-688 535.
BY ADVS.
R.K.MURALIDHARAN
SMT.ATHIRA A.MENON
SRI.AMAL S KUMAR
RESPONDENTS:
1 STATE OF KERALA
REP BY ITS SECRETARY TO HIGHER EDUCATION DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE GURUVAYOOR DEVASWOM MANAGING COMMITTEE,
REP BY ITS ADMINISTRATOR, GURUVAYOOR P.O., THRISSUR
DISTRICT-680 101.
3 THE UNIVERSITY OF CALICUT,
REP BY ITS REGISTRAR, THENHIPALAM P.O., MALAPPURAM
DISTRICT-673 636.
SRI.T.K.VIPINDAS, SC
SRI P C SASIDHARAN, SC
SRI.JOSHY THANNIKKAMATTOM, GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 28902 OF 2020
2
JUDGMENT
In its essential scope, the petitioner herein challenges Ext.P7 order of the Government of Kerala, which reduces the number of posts in Malayalam in the Sree Krishna College, Guruvayur to four, from the earlier five.
2. The petitioner says that he is a person with disabilities, who is entitled to be appointed to the fifth vacancy and that, through the interim order of this Court, this has already been done provisionally. He says that, however, the University is now refusing to grant concurrence for his appointment to the fifth vacancy, saying that Ext.P7 forbids such a course, since the number of vacancies have been reduced to four. The petitioner asserts that, therefore, Ext.P7, as also the consequential orders of the University - namely Ext.R2(d), are illegal and unlawful and thus seeks that the same be set aside.
3. The learned counsel for the petitioner - Sri.R.K.Muralidharan, further argued that it is for the College and the University to implement Ext.P9 fully, which can only be done if his client is appointed to the fifth available vacancy, as per the provisions of the Rights of Persons with Disabilities Act ("PWD Act" for short).
WP(C) NO. 28902 OF 2020 3
4. Sri.T.K.Vipindas - learned standing counsel for the College, however, submitted that his client's hands are tied on account of Ext.R2(d) order issued by the University, which prevents them from filling up the fifth vacancy and is thus appointing the petitioner. He argued that only if the fifth vacancy is available, can the petitioner obtain any right, particularly when it is without contest that the four available vacancies have already been filled up.
5. Sri.P.C.Sasidharan - learned standing counsel for the Calicut University, submitted that Ext.R2(d) has been issued in full compliance with the directions of the Government in Ext.P7 and therefore, that the petitioner cannot assail it. He thus prayed that this writ petition against his client be dismissed.
6. I have considered the afore rival contentions, based on the various documents available on record.
7. As rightly argued by Sri.R.K.Muralidharan, the legal issues, particularly from the ambit of the PWD Act has been very extensively dealt with and declared by a learned Judge of this Court in Ext.P9 judgment. I am told that this judgment has been confirmed by the Division Bench, as also by the Hon'ble Supreme Court; and therefore, obviously, the WP(C) NO. 28902 OF 2020 4 respondents are bound to implement the same.
8. That said, however, the impediment now projected by the College in doing so is that the Calicut University has asked them not to fill up the fifth post. For this purpose, the University appears to rely on Ext.P7, in which the Government, without citing any reason, says that the workload in the Sree Krishna College justifies only four posts and thus reducing the sanctioned ones to this number.
9. Sri.Joshy Thannikkamattom - learned Government Pleader, explained Ext.P7 saying that it was issued because, when 16 hours a week is taken as being the minimum requirement for one post, the college will obtain only four posts, since its workload is 76 hours. He argued that, therefore, for the remaining nearly five hours, a post cannot be created and that it is, therefore, that the fifth post has been directed to be dropped.
10. Though the earlier Government Order, based on which Ext.P7 has been issued by the Government, is not on record, it is apparent that its competent Authorities proceeded on the assumption that it is only if 16 hours are available, can a post be sanctioned. As per mathematical calculation, for 76 hours, there should be four posts, which will take in 64 hours, WP(C) NO. 28902 OF 2020 5 leaving a balance of 12 hours, for which no provision has been made in Ext.P7. The order does not say how the additional 12 hours will have to be catered to and in what manner.
11. That being said, it is without doubt that five posts were earlier sanctioned to the College. Obviously therefore, when a post had to be reduced, the College ought to have been heard and their version recorded appropriately. This is admittedly not done.
12. The afore apart, the assessment of the workload of a Department in a College is not the province of the Government but that of the University. Therefore, the question whether the actual workload in the Department of Malayalam in the College is 76 or more, taking into account the courses available, are to be done by the University at the first instance. This has not been done, but they have chosen to issue Ext.R2(d) merely following Ext.P7, which, I am certain, was impermissible. They had a duty to assess the workload and inform the Government, which alone could have led to the reduction of post or creation of new ones, as the case may be.
13. Pertinently, it is submitted by Sri.T.K.Vipindas that the College has taken up the matter with the Government through Ext.R2(b) for restoration of the fifth post and he asserts that WP(C) NO. 28902 OF 2020 6 this is imperative because it is now affecting the quality of education of the students. Further, it is the specific case of Sri.R.K.Muralidharan - learned counsel for the petitioner, that the actual working hours in the College is much more than 76 hours and that this figure has been entered into without reckoning the Post Graduate classes. In fact, this is affirmed by Sri.T.K.Vipindas, who says that this aspect has also been taken before the Government appropriately by his client.
14. I am, therefore, of the firm view that the Government must re-look the number of posts for the college in question, adverting to all the afore facts, within a time frame.
Resultantly, I order this writ petition with the following directions:
(a) The University is directed to assess the workload of the College in terms of the applicable Rules and Regulations and report to the Government appositely within a period of one month from the date of receipt of a copy of this judgment.
(b) On the workload being so computed by the University, the Government will proceed to consider it, after affording an opportunity of being heard to the College, and then decide whether any modification to Ext.P7 is necessary as regards the fifth post in Malayalam. This shall be done not later than two WP(C) NO. 28902 OF 2020 7 months from the date on which the recommendations of the University reaches them.
(c) On the afore exercise being completed and depending upon the resultant decision, the petitioner will immediately be appointed against the fifth vacancy in Malayalam in the College, without any avoidable delay thereafter.
(d) Needless to say, if the orders to be issued by the University or by the Government are to the detriment of the petitioner or to the College, they will be at liberty to challenge the same appropriately, for which purpose, all contentions are left open.
(e) As a consequential corollary, it is clarified that all appointments made by the College pursuant to Ext.P10 on Guest Lecturer basis or daily wage basis will be modulated in terms of the afore directions and if the fifth vacancy is approved by the Government, then the petitioner alone shall be granted appointment and the approval against it.
Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 28902 OF 2020 8 APPENDIX OF WP(C) 28902/2020 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE CERTIFICATE OF DISABILITY DATED 4.10.2014 ISSUED BY THE SUPERINTENDENT AND CHAIRMAN OF MEDICAL BOARD, GOVT TD MEDICAL COLLEGE HOSPITAL, ALAPPUZHA EXHIBIT P2 A TRUE COPY OF THE NOTIFICATION PUBLISHED BY THE 2ND RESPONDENT DATED 12.6.2018 EXHIBIT P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 27.7.2018 EXHIBIT P4 A TRUE COPY OF THE GO(P) NO 18/2018/SJD DATE3D 18.11.2018 EXHIBIT P5 A TRUE COPY OF THE INTERIM ORDER IN WPC NO 224/2019 DATED 7.1.2019 EXHIBIT P6 A TRUE COPY OF THE ORDER IN IA NO 1/2020 IN WPC NO 224/2019 DATED 16.1.2020 EXHIBIT P7 A TRUE COPY OF THE GO(RT) NO 701/2020/H EDN DATED 1.6.2020 EXHIBIT P8 A TRUE COPY OF THE JUDGMENT IN WPC NO 21431/2015 DATED 28.11.2019 EXHIBIT P9 A TRUE COPY OF THE JUDGMENT IN WPC NO 224/2019 DATED 26.8.2020 EXHIBIT P10 A TRUE COPY OF THE NOTICE NO.R15452/2022(I) ISSUED BY THE 2ND RESPONDENT DATED 06.06.2022 RESPONDENT EXHIBITS Exhibit R2 A TRUE COPY OF THE LETTER DATED 21/07/2020 ISSUED BY PRINCIPAL, SREE KRISHNA COLLEGE, GURUVAYUR TO THE 2ND RESPONDENT.
WP(C) NO. 28902 OF 2020 9 Exhibit R2 B TRUE COPY OF THE LETTER DATED 13/08/2020 ISSUED BY PRINCIPAL, SREE KRISHNA COLLEGE, GURUVAYUR TO THE 2ND RESPONDENT.
Exhibit R2 C TRUE COPY OF THE RESOLUTION NO.12 DATED 05.03.2021 Exhibit R2 D TRUE COPY OF THE COMMUNICATION DATED 12/10/2020 ISSUED BY CALICUT UNIVERSITY