IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
WP(C) NO. 19353 OF 2022
PETITIONER:
REJI MATHEW, ASSISTANT PROFESSOR, DEPARTMENT OF
ECONOMICS MAR THOMA COLLEGE THIRUVALLA- 689 103
RESIDING AT CHARIVUPURAYIDATHIL, MALAYALAPUZHA- ERAM
P.O PATHANAMTHITTA-689 664
ISAAC KURUVILLA ILLIKAL
BABY ISAAC ILLICKAL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY GOVERNMENT
SECRETARIAT THIRUVANANTHAPURAM-695 001
2 PRINCIPAL SECRETARY TO GOVERNMENT
HIGHER EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM-695 001
3 PRINCIPAL SECRETARY TO GOVERNMENT
FINANCE DEPARTMENT GOVERNMENT SECRETARIAT
THIRUVANANTHAPURAM- 695 001
4 DIRECTOR OF COLLEGIATE EDUCATION
6TH FLOOR, VIKAS BHAVAN, VIKAS BHAVAN P O,
THIRUVANANTHAPURAM -695 033
5 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION,
OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION
NEAR GOVERNMENT COLLEGE, NATTAKOM P.O KOTTAYAM- 686 013
6 MAHATMA GANDHI UNIVERSITY
REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS
KOTTAYAM- 686 560
7 THE MANAGER,
MAR THOMA COLLEGE,
THIRUVALLA 689 103.
WP(C) NO. 19353 OF 2022
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8 PRINCIPAL,
MAR THOMA COLLEGE, THIRUVALLA 689 103.
ADV. PARVATHY K (GP)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 07.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 19353 OF 2022
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JUDGMENT
The petitioner has approached this Court seeking broadly two limbs of reliefs. For the first, he seeks that his initial appointment against a leave vacancy in the services of the Mar Thoma College - of which respondents 7 and 8 are Manager and Principal respectively - be directed to be regularised; and for the second, that his prior service in the Treasury Department between 01.11.1997 and 21.12.2004, be reckoned for the purpose of inclusion of Statutory Pension Scheme, which is envisaged through Exts.P15 and P16.
2. Sri.Isaac Kuruvila Illikal - learned counsel for the petitioner, conceded that his client's claim as regards the first aspect was considered by the Mahatma Gandhi University and the Government through Exts.P8 and P11 respectively but rejected holding that since his original appointment was against a leave vacancy, he cannot be granted any benefits pursuant thereto and that he will be deemed to be a "Fresh Entrant" as Assistant Professor with effect from 01.06.2013, which is the date of occurrence of the substantive vacancy, due to the retirement of another teacher by name Smt.Remani George. The learned counsel contended that this is per se illegal because his client was appointed validly through the WP(C) NO. 19353 OF 2022 4 selection procedure as contemplated by law, including after being assessed by a Selection Committee and therefore, that the fact that he was appointed against a leave vacancy would be of no relevance at all, particularly when, as is clear from Ext.P11, he was granted the benefit of substantive appointment without having to go through a selection procedure again. He submitted that this clearly indicates that the respondents were also aware that his original appointment was made following every requirement for filling up of substantive vacancy; and therefore that Exts.P8 and P11 are without legs to stand on.
3. As far as the second limb of the afore argument is concerned, the learned counsel submitted that the prior service of his client in the Treasury Department between 01.11.1997 and 21.12.2004, ought to have been reckoned, which would have then enabled him to enter the Statutory Pension Scheme; but that this has been refused to be done by the competent Authorities. He thus prayed that both the reliefs sought for in this writ petition be granted.
4. In response, the learned standing counsel for the Mahatma Gandhi University - Sri.Surin George Ipe, submitted that this writ petition is not maintainable because Exts.P8 and WP(C) NO. 19353 OF 2022 5 P11 were issued as early as in the year 2014 and 2015 respectively. He submitted that, therefore, the petitioner had clearly acquiesced to the said orders and cannot be now allowed to revive a claim which has been settled and finalised.
5. As regards the second request of the petitioner, the learned standing counsel submitted that his client has no role to play in this and it is for the competent officials of the Government to take a decision on it at the first instance.
6. Smt.Parvathy K. - learned Government Pleader also supported Exts.P8 and P11, saying that the Government had made it very clear that he was granted the benefit of appointment as an Assistant Professor in the substantive vacancy, solely taking note of his "pathetic condition" and therefore, relaxing the requirement for constituting a Selection Committee for such purpose. She submitted that, however, it does not mean that his subsequent appointment in the substantive vacancy was a continuation of his first engagement, but that these are different and distinct, which cannot be mixed or interlinked. She submitted that, therefore, merely because the Government acted in favour of the petitioner on humanitarian grounds, he cannot now turn around and seek benefits which are not eligible to him. WP(C) NO. 19353 OF 2022 6
7. As regards the petitioner's request for reckoning his prior service in the Treasury Department is concerned, Smt.Parvathy K. submitted that the competent among respondents 1 to 5 are willing to consider this, however, praying that this Court may not make any affirmative declarations as to his entitlement to any relief and leave it to the competent Authority to take a decision on it in terms of law. She submitted that she is making this request because the entitlement of the petitioner to any such benefit will have to be assessed from the touchstone of various Government Orders and Circulars holding the field and cannot be spoken of at this stage.
8. When I evaluate the afore submissions, it is clear that the petitioner's specific contention is that his initial appointment in the leave vacancy cannot be seen to be an ad hoc or temporary one and that the second appointment is virtually a continuation of the same, since the requirement for a selection process at that stage had been given up. However, going by Ext.P11 - which, as rightly stated by Sri.Surin George Ipe, is of the year 2015 - it has been clearly stated that, it is taking note of the "pathetic condition" of the petitioner, he had been offered the post of Assistant Professor WP(C) NO. 19353 OF 2022 7 in the Department of Economics in a substantive vacancy, without having his qualifications assessed by a Selection Committee. Normally, such a course could not have been adopted and if the filling up of the substantive vacancy was to be done as per law, it could have been done only through a selection process. However, for some reason - which the Government states to be on account of the "pathetic condition" of the petitioner - he was granted such benefit without a selection process.
9. Obviously, therefore, there is some merit in the petitioner's contention that the competent Authority ought to have considered whether this would entitle reckoning of his service in the leave vacancy also, particularly when the same has not been stated - either in Exts.P8 or P11 - to be ad hoc or temporary. It is also on record that he was selected through a valid procedure akin to the filling up of the substantive vacancy and these aspects certainly ought to have weighed in the mind of the Authorities, before it could have issued the impugned orders.
10. When I take the view as afore, the fact that the petitioner has approached this Court much later in the year 2022, even though Ext.P11 was settled in the year 2015, WP(C) NO. 19353 OF 2022 8 would be of no relevance because, when rights are claimed on the basis of statutory or constitutional provisions, the principles of acquiescence cannot apply; and in any event, it would not cause any prejudice to the respondents to reconsider the petitioner's claim based on all the relevant and germane aspects, which, I am certain, must be done in the circumstances presented in this case.
11. As far as the second request of the petitioner, to reckon his prior service in Treasury Department, is concerned, this is a matter that will certainly have to be considered by the competent among respondents 1 to 5 appropriately and it will not be prudent for this Court to speak on it at the first instance.
Resultantly, I allow this writ petition with the following directions:
(a) The first respondent is directed to reconsider the claim of the petitioner with respect to his service in the leave vacancy, after affording him an opportunity of being heard and after examining all his contentions, particularly those recorded above; thus culminating in an appropriate proceedings, deciding whether the impugned orders require to be modified in any manner or otherwise. This shall be WP(C) NO. 19353 OF 2022 9 done by the competent Authority as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment.
(b) The competent among respondents 1 to 5 is directed to take up the claim of the petitioner for reckoning his prior service in the Treasury Department between 01.11.1997 and 21.12.2004, for the purpose of including him in the Statutory Pension Scheme, after affording him an opportunity of being heard; and to thus issue appropriate orders thereon as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment.
I make it clear that I have not entered into the merits of any other contentions of the rival parties and that all of them are left open to be decided by the competent Authorities, when the afore exercise is completed.
Sd/- DEVAN RAMACHANDRAN JUDGE stu WP(C) NO. 19353 OF 2022 10 APPENDIX OF WP(C) 19353/2022 PETITIONER EXHIBITS Exhibit P1 PHOTOCOPY OF THE RELEVANT PAGES OF THE SERVICE BOOK Exhibit P2 PHOTOCOPY OF THE APPOINTMENT ORDER OF THE PETITIONER DT.22.12.2004 Exhibit P2 A PHOTOCOPY OF THE ORDER OF THE 6TH RESPONDENT DT.21.10.2005 Exhibit P2 B PHOTOCOPY OF THE ORDER OF THE 5TH RESPONDENT DT. 06.04.2006 Exhibit P3 PHOTOCOPY OF THE APPOINTMENT ORDER OF THE PETITIONER DT.07.11.2005 Exhibit P3 A PHOTOCOPY OF THE APPROVAL ORDER OF THE 6TH RESPONDENT DT. 16.11.2007 Exhibit P3 B PHOTOCOPY OF THE ORDER OF THE 5TH RESPONDENT DT. 31.03.2008 Exhibit P4 PHOTOCOPY OF THE APPOINTMENT ORDER DT.07.11.2010 Exhibit P4 A PHOTOCOPY OF THE APPROVAL ORDER OF THE 6TH RESPONDENT DT 08.10.2012 Exhibit P5 PHOTOCOPY OF THE ORDER OF THE 6TH RESPONDENT DT.02.11.2011 Exhibit P6 PHOTOCOPY OF THE APPOINTMENT ORDER DT.09.11.2011 Exhibit P7 PHOTOCOPY OF THE ORDER OF THE 7TH RESPONDENT DT. 01.04.2013 Exhibit P7 A PHOTOCOPY OF THE JUDGMENT IN W.P (C) NO.9997/2013 DT. 11.02.2014 Exhibit P8 PHOTOCOPY OF THE ORDER OF THE 6TH RESPONDENT DT. 16.08.2014 WP(C) NO. 19353 OF 2022 11 Exhibit P9 PHOTOCOPY OF THE G.O (MS) NO.87/2012/H.EDN DATED 12.03.2012 Exhibit P10 PHOTOCOPY OF THE GOVERNMENT LETTER NO.30985/D1/2010/H.EDN DATED 11.09.2012 Exhibit P11 PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DT. 01.01.2015 Exhibit P12 PHOTOCOPY OF THE APPROVAL ORDER DT.25.06.2015 Exhibit P13 PHOTOCOPY OF THE RELEVANT PAGES OF THE UGC REGULATIONS 2010 PERTAINING TO CAS PROMOTIONS Exhibit P14 PHOTOCOPY OF THE RELEVANT PAGES OF THE UGC REGULATIONS 2018 PERTAINING TO CAS PROMOTIONS Exhibit P15 PHOTOCOPY OF THE SAID GOVERNMENT ORDER DT.14.07.2014 Exhibit P16 PHOTOCOPY OF THE G.O (P) 319/85/FIN DATED 05.06.1985 Exhibit P17 PHOTOCOPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE MINISTER, HIGHER EDUCATION DEPARTMENT DT.07.11.2019 Exhibit P18 PHOTOCOPY OF THE ORDER DT. 19.08.2020 PASSED BY THE 4TH RESPONDENT Exhibit P19 PHOTOCOPY OF THE REPRESENTATION OF PETITIONER TO THE 2ND RESPONDENT DT.
13.01.2021 Exhibit P20 PHOTOCOPY OF THE ORDER DT.24.07.2021 OF THE 3RD RESPONDENT Exhibit P21 PHOTOCOPY OF THE REPRESENTATION OF THE PETITIONER DT. 19.01.2018 WP(C) NO. 19353 OF 2022 12 Exhibit P22 PHOTOCOPY OF THE LETTER OF THE 4TH RESPONDENT DT.03.12.2019 Exhibit P23 PHOTOCOPY OF THE REPRESENTATION DT.30.05.2022 OF THE PETITIONER TO THE 2ND RESPONDENT