Dr. Rajitha Kumar S. vs Cochin University Of Science And ...
2021 Latest Caselaw 11306 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                             PRESENT

    THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

                                &

           THE HONOURABLE MR. JUSTICE GOPINATH P.

THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943

                        WA.No.494 OF 2021

AGAINST THE JUDGMENT IN WP(C) 1781/2021(W) OF HIGH COURT OF
                          KERALA

APPELLANT/PETITIONER:

            DR. RAJITHA KUMAR S.,AGED 56 YEARS
            PROFESSOR, SCHOOL OF MANAGEMENT STUDIES, COCHIN
            UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-682
            022.

            BY ADVS.
            SRI.P.RAVINDRAN (SR.)
            SMT.APARNA RAJAN
            SRI.SREEDHAR RAVINDRAN

RESPONDENT/RESPONDENTS:

      1     COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY
            REPRESENTED BY ITS REGISTRAR, KOCHI-682 022.

      2     THE VICE CHANCELLOOR,
            COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
            KOCHI-682 022.

      3     DR. JAGATHY RAJ V.P
            PROFESSOR, SCHOOL OF MANAGEMENT STUDIES, COCHIN
            UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-682
            022.

            R1-2 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY
            R3 BY ADV. C.UNNIKRISHNAN(B/O)

THIS   WRIT   APPEAL      HAVING BEEN       FINALLY HEARD    ON
08.04.2021,THE COURT      ON THE SAME       DAY DELIVERED   THE
FOLLOWING:
 W.A.No.494/2021                          2

                                 JUDGMENT

A.K.Jayasankaran Nambiar, J

The petitioner in W.P.(C)No.1781/2021 is the appellant before us

aggrieved by the judgment dated 1.3.2021 of the learned single Judge. The

brief facts necessary for disposal of the writ appeal are as follows:-

2. The appellant is working as a Professor in the School of

Management Studies under the Cochin University of Science and

Technology (hereinafter referred to as the respondent University). He

entered service as Lecturer in the School of Management Studies on

28.3.2001. Thereafter, he was directly recruited to the post of Reader with

effect from 4.12.2006 and re-designated as Associate Professor with effect

from 4.12.2009. He was later promoted as Professor with effect from

1.10.2013 based on seniority and merit. In the writ petition, the appellant

was concerned with the nomination as Head of the Department in the

School of Management Studies. While the University Statutes prescribe that

the Syndicate of the University shall nominate a teacher not below the rank

of Associate Professor with Ph.D, or an equivalent post as prescribed by the

UGC Regulations or Regulations of any Apex authorities specified for the

purpose, as Head of the Department according to seniority, on a rotational

basis for a period of three years, the respondent University had accepted

the nomination of the 3rd respondent notwithstanding the fact that the said

respondent had already relinquished his claim for nomination as Head of the

Department when his turn for such nomination arose based on his seniority

in the Department. It was pointed out that when the term of the 3 rd

respondent had initially arisen in 2017, he had, even prior to his nomination,

indicated that he was not interested in taking up the post of Head of the

Department and under those circumstances, the next senior most teacher

Dr. Mavoothu D. was nominated as the Head of the Department. As the term

of the said Professor Dr.Mavoothu. D., as Head of the Department expired

on 6.12.2020, the appellant was expecting to be nominated as the next Head

of the Department, but when the respondent University denied his claim and

decided to nominate the 3rd respondent as the Head of the Department for a

term commencing from 7.12.2020, the appellant was aggrieved and

approached this Court through the writ petition. In the writ petition,

Exts.P7, P9 and P11 orders of the respondent University were impugned

inter alia on the contention that the nomination of the 3 rd respondent was

contrary to the provisions of Statute 18 of the Cochin University of Science

and Technology First Statutes, 1991.

3. Counter affidavits were filed on behalf of the respondent

University as well as the 3 rd respondent in which the contention taken was

essentially that the nomination in terms of Statute 18 aforesaid was only for

a limited tenure of three years at a time. It was contended, therefore, that

notwithstanding that the 3rd respondent had relinquished his claim for

nomination as the Head of the Department when his turn had originally

arisen, the said relinquishment could not prevent him from staking a claim

for nomination when the next turn arose since he continued to be the senior

most teacher in the Department for the purposes of nomination as Head of

the Department. The counter affidavit of the respondent University also

furnished details regarding similar instances that had occurred in the past

to show that the University had understood the scope and ambit of Statute

18 as above. In the counter affidavit filed on behalf of the 3 rd respondent,

the specific stand taken is that the relinquishment in 2017 was only in

respect of the particular turn during which the said respondent was offered

nomination as Head of the Department and hence, after the tenure of the

said nomination, the 3rd respondent could raise a fresh claim for nomination

as Head of the Department of the School of Management. The past

precedents of teachers who had earlier relinquished their claim being

considered during the subsequent turns based on seniority, were also

highlighted in the counter affidavit filed on behalf of the 3 rd respondent.

4. The learned single Judge, who considered the matter, found

that on a plain reading of the provisions of Statute 18, it was evident that

the senior most teacher in the Department had to be considered for

appointment as Head of the Department on rotational basis for a period of

three years. It was found that notwithstanding the relinquishment by the 3 rd

respondent in 2017, he continued to be the senior most teacher in the

Department, when the next turn arose for nomination as Head of the

Department in 2020. It was concluded, therefore, that the relinquishment by

the 3rd respondent was only for the limited period of three years for which

the nomination was made and could not be seen as relinquishment for an

infinite period. The impugned decision of the respondent University was

therefore upheld and the writ petition dismissed.

5. Before us, it is the contention of the learned Senior Counsel

Sri.P. Ravindran, duly assisted by Sri. Sridhar Raveendran, that the

impugned judgment proceeded on a wrong interpretation of Statute 18 of

the Cochin University of Science and Technology First Statutes, 1991. It is

pointed out that the statute specifically contemplates the nomination of a

teacher as Head of the Department, based on the criteria of seniority and

rotation and further stipulated that once nominated, the teacher chosen will

have a tenure of three years as Head of the Department. Referring to the

subsequent limb of the said statute, it is pointed out that while a teacher,

who has been nominated as Head of the Department, may choose to

relinquish his nomination as Head of the Department, such relinquishment

would be held against him till all the other teachers in that Department,

secured their nomination based on their seniority and rotation turn. In

particular, it is emphasized that the criteria of rotation would be rendered

meaningless, if the teacher, who had relinquished his nomination as Head of

the Department on an earlier occasion, was permitted to stake a fresh claim

for nomination immediately after the tenure of three years of the earlier

nomination had expired, on the ground that he continued to be the senior

most among those in the feeder category entitled for nomination.

6. Per contra, it is the submission of the learned Senior Counsel

Sri. Rajendran Nair appearing for the 3 rd respondent, as also of Sri. S.P.

Aravindakshan Pillay, the learned Standing Counsel for the respondent

University, that the relinquishment by the 3 rd respondent cannot be seen as

a permanent relinquishment that prevents him from staking a fresh claim

for nomination based on his seniority at the next available turn. Our

attention is drawn to a decision of the Full Bench of this Court in Usha

Thayyil v. State of Kerala and others (2009(4) KLT 1), where in the

course of interpreting the Note to Rule 44 of Chapter XIVA of the KER, that

dealt with the appointments of Headmasters in aided schools on the criteria

of inter-se seniority of teachers, the Court found as follows at paragraphs 10

and 11:-

"10. Thus, all the reported decisions of this Court have consistently taken the view, that relinquishment given by a teacher while appointing a junior cannot be treated as a relinquishment relating to all future appointments of juniors to him. The Division Bench (supra) and Rajasree's case (supra) is apparently against the literal meaning of the words used in the Note to Rule 44(1) and therefore, referred the matter to the Full Bench. The relevant portion of t he reference order reads as follows:

2. George's case and Rajasree's case is based on facts also. Since ratio in George's case was accepted by the Division Bench and it is apparently against the literal meaning of the words used in 'note' of rule 44(1) of Chapter XIV-A, we are of the opinion that the question regarding the interpretation of Rule 44(1) of Chapter XIV-A has to be decided by a Full Bench. Hence we adjourn the matter to be posted before a Full bench of this Court.

11. A close reading of the Note to Rule 44(1) of Chapter XIV-A of the K.E.R., which we have already quoted above would show that whenever the Manager intends to appoint a person as Headmaster other than the senior claimant, he should obtain a written consent from the senior hand. The renouncement of his claim should be permanent. We feel that the use of the word "whenever" has some significance. Concise Oxford English Dictionary gives the meaning of "whenever" as "at whatever time, on whatever occasion, every time that". Going by the plain meaning of the above word,

we are of the view that on every occasion, when the Manager appoints a junior, overlooking a senior claimant, the consent of the latter has to be obtained. That is, consent obtained once will only apply to that particular appointment made at the relevant time. As far as that appointment is concerned, the relinquishment is permanent. In other words, the senior cannot retract from the relinquishment and stake claim for appointment in the very same vacancy. But, when a subsequent vacancy arises, then also the Manager has to get consent of the senior claimant, if it is intended to overlook that claimant. We think, there is no ambiguity in the words used in the Note to Rule 44(1) of Chapter XIV-A, K.E.R Even assuming, there is some ambiguity, an interpretation which is favourable to the teacher should be adopted. The said Note was introduced to protect the interest of teachers. By the above interpretation, the interest of the incumbent who was promoted overlooking the seniority of another claimant and also the interest of latter are protected. We have gone through the decisions cited by the learned counsel for the petitioner and also noticed the relevant canons of interpretation. Having regard to the scheme of the Act, we notice that there are several provisions which are introduced as a check on the Managers and to safeguard the interest of teachers. This is the view taken by this Court while interpreting Rule 51-A of Chapter XIV-A and Rule 81-A of Chapter XIV-A of the K.E.R. The Note to Rule 44 is one such provision. So, we think, the view taken by this Court in George's case (supra) and Rajasree's case (supra) lays down the correct legal position."

On the facts of the instant case, it is contended that the relinquishment by

the 3rd respondent, when his turn arose in 2017 for nomination as Head of

the Department, had to be seen as a limited one, confined to the tenure

flowing from the nomination, and cannot be seen as preventing him from

raising a fresh claim for nomination in 2020 on the basis of his continued

seniority over the other teachers in the Department.

7. We have considered the rival submissions and for the reasons

that are to follow, we are of the view that the writ appeal must necessarily

succeed. Statute 18 of the Cochin University Science and Technology First

Statutes, 1991 deals with the nomination of the Head of the Department and

reads as follows:-

"Head of the Department: The Syndicate shall nominate a teacher not below the rank of an Associate Professor with Ph.D or an equivalent post as prescribed by the UGC Regulations or Regulations of any Apex Authority specified for the purpose as Head of the Department according to seniority on a rotational basis for a period of three years. It shall, however, be open to the teacher who has been nominated as the Head of the department to make a request that he/she shall be relieved of such a responsibility for academic reasons. In such a case the next eligible teacher will be nominated as the Head of the Department. All the members of the teaching staff shall work under the directions of the Head of the Department. In the case of Departments which have no Professor or Associate Professor or equivalent posts prescribed by the UGC Regulations or Regulations issued by any other competent authority, the Syndicate shall nominate an Assistant Professor or equivalent post prescribed by the UGC Regulations or by the Regulations issued by any other competent authority specified for the purpose according to seniority on a rotational basis as Head of the Department in -charge till another Professor assumes charge or an Associate Professor is promoted under Career Advancement Scheme of UGC/AICTE and the other teachers shall work under the directions of the Head of the Department."

It will be apparent from a reading of the said Statute that the nomination of

a teacher as Head of the Department has to be made by the Syndicate by

applying the criteria of seniority and rotation among the teachers in the

Department. The nomination, when effected, confers a three year tenure on

the nominee from the date of nomination. The Statute, however, permits a

person, who has been nominated as Head of the Department to make a

request that he/she shall be relieved of such a responsibility for academic

reasons. The Statute also provides for an alternate nomination to be made in

that eventuality, of the next eligible teacher. When we read the expressed

provisions of the Statute, we find that the option of relinquishment is

conferred only on a teacher, who has been nominated as the Head of the

Department with the nomination itself being made by the Syndicate by

applying the criteria of seniority and rotation among the teachers in the

Department. In our view, if a teacher who has been nominated as Head of

the Department, relinquishes his/her right by making a request that he/she

shall be relieved of such responsibility for academic reasons, then that

would be a case where a nominee as Head of the Department has chosen

not to discharge the functions attributable to such nomination. On such

relinquishment, the Statute clearly provides that the next eligible teacher

will be nominated. The use of the words "next eligible teacher" clearly

suggests that it is the next eligible teacher based on the combined criteria of

seniority and rotation that would be nominated pursuant to the

relinquishment of nomination by the earlier nominee. This would be the only

meaningful way in which the Statute can be read, if the criteria of rotation

that is provided in the Statute is to be given effect to. To read the Statute in

the manner suggested by the University, would mean that a person once

nominated, irrespective of whether or not he has discharged his duties as

Head of the Department, could always stake a fresh claim for nomination

after the expiry of the tenure of the earlier nomination. This is clearly

against the mandate of the Statute which envisages the nomination of the

Head of the Department by rotation thereby giving every teacher in the

Department an opportunity to become the Head of the Department based on

the inter-se seniority between them. We are of the view that a

relinquishment by a nominee deprives him of the benefit of his nomination

and he has, thereafter, to await his next turn based on seniority and rotation

to stake a fresh claim. That turn, in our view, would arise only after the

cycle of rotation that has already commenced, completes its course after

extending to every qualified teacher in the department an opportunity of

being nominated.

8. We might also, in this connection, note the relinquishment

letter of the 3rd respondent in 2017, produced as Ext.P3 in the writ petition,

which reads as follows:-

"18.07.2017

From Dr. Jagathy Raj V.P., Professor, School of Management Studies Cochin University of Science and Technology Kochi-22.

To The Registrar Cochin University of Science and Technology Kochi -22.

Dear Sir,

Sub:- Directorship of School of Management Studies - Request for not considering - reg.

It is learnt that I am next in line to be nominated as the Director of School of Management Studies, after the tenure of present Director Prof.(Dr) Moly P. Koshy. Since, I am interested in Teaching and Research only, I request you not to consider me for the Directorship of School of Management Studies. Kindly do the needful.

Thanking you,

Yours faithfully,

Sd/-

(Dr. Jagathy Raj V.P.)"

The letter unambiguously communicates the disinterest of the 3rd

respondent in taking up the assignment of Directorship/HOD of the School f

Management Studies. While it may be a fact that the relinquishment letter

itself was received by the respondent University on 18.7.2017 and the

nomination of Dr. Mavooth. D, who was admittedly junior to the 3 rd

respondent, was only on 23.11.2017, it was on account of Ext.P3 letter that

the 3rd respondent was not expressly nominated by the respondent

University in its order dated 23.11.2017. In fact, in the said order that

nominates Dr. Mavooth. D as the new Head of the Department/Director,

there is a clear recording of the contents of Ext.P3 letter of the 3 rd

respondent which expressed his unwillingness to take up the position of

Head of the Department/Director. Although technically, it could be argued

that there was no relinquishment of a 'nomination' made by the Syndicate of

the respondent University in as much as the relinquishment letter (Ext.P3)

itself was dated prior to the date of nomination, we cannot ignore the fact

that it was consequent to the said relinquishment letter of the 3 rd

respondent, that Dr. Mavooth. D was nominated as the Head of the

Department. Thus, even if Ext.P3 letter cannot be seen as a relinquishment

by a person, who had been nominated as the Head of the Department of the

School of Management Studies of the Respondent University, the

subsequent acceptance by the 3rd respondent of the nomination of his junior,

Dr. Mavooth. D, as Head of the Department has necessarily to be seen as a

waiver by the 3rd respondent of his right pursuant to a nomination. In that

view, therefore, we find that the 3rd respondent had effectively relinquished

the rights that had accrued to him pursuant to a deemed nomination based

on seniority and rotation within the School of Management Studies. Having

relinquished his right in favour of a junior teacher in the same Department,

the 3rd respondent had necessarily to await his turn in the next cycle based

on the criteria of rotation which, in addition to the criteria of seniority, had

to inform the subsequent nomination by the Syndicate of the respondent

University at the next turn. In this context, we do not see the judgment of

the Full Bench of this Court relied upon by the 3 rd respondent coming to his

aid in any manner, since the said judgment admittedly dealt with a situation

where certain aspirants for the post of Headmaster in a school were

claiming consideration for appointment as such against vacancies that arose

in the said post. A relinquishment at the stage of consideration for

appointment to a vacancy arising in a post stands on a different footing from

a relinquishment made by a person who has already been appointed. In the

latter event, the relinquishment is of a right that is superior to one

possessed by a person seeking consideration for an appointment. In the

instant case, we find that the relinquishment was effectively of the

nomination itself and hence, the said relinquishment has to be seen as a

waiver by the 3rd respondent of the right obtained by him based on his

nomination on the criteria of seniority and rotation turn viz-a-viz the other

teachers in the Department. It is trite that a personal right can be waived by

the holder of the right and in the instant case that is what the 3 rd respondent

did through his relinquishment. Resultantly, we hold that the relinquishment

by the 3rd respondent renders him ineligible for consideration for fresh

nomination in subsequent turns in the same cycle.

We, therefore, allow the writ appeal by setting aside the impugned

judgment of the learned single Judge and quashing Exts.P9 order and P11

proceedings. We further direct the Syndicate of the respondent University

to forthwith nominate the appellant as the Head of the Department/Director

of School of Management Studies of Cochin University, taking note of his

admitted seniority and rotational turn.

sd/-

A.K.JAYASANKARAN NAMBIAR JUDGE

sd/-

GOPINATH P.

JUDGE

acd