Suki P.Raj vs State Of Kerala
2021 Latest Caselaw 11597 Ker

W.P.(C).No.19658/2020
                                    1


             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

            THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

  FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                        WP(C).No.19658 OF 2020(F)


PETITIONER:

                SUKI P.RAJ
                AGED 43 YEARS
                D/O. PROF.B.VIJAYARAJAN, HEAD OF THE
                DEPARTMENT, DEPARTMENT OF COMPUTER APPLICATION,
                S.N.COLLEGE, KOLLAM, RESIDING AT SOUPARNIKA,
                RSNRA-29, NEAR RAILWAY RUNNING ROOM, KOLLAM-691
                001

                BY ADVS.
                SRI.S.MUHAMMED HANEEFF
                SRI.M.H.ASIF ALI

RESPONDENTS:

        1       STATE OF KERALA
                REP BY THE SECRETARY TO GOVERNMENT, HIGHER
                EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM-695 001

        2       DIRECTOR OF COLLEGIATE EDUCATION,
                6TH FLOOR, VIKAS BHAVAN, THIRUVANANTHAPURAM-695
                033

        3       REGIONAL DEPUTY DIRECTOR OF COLLEGIATE
                EDUCATION,
                KOLLAM, SOUTH ZONE, ASP TOWER, CHAMAKKADA,
                KOLLAM-691 001
 W.P.(C).No.19658/2020
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        4       UNIVERSITY OF KERALA,
                REP BY ITS REGISTRAR, UNIVERSITY CAMPUS,
                KARIYAVATTOM, THIRUVANANTHAPURAM-695 034

        5       THE MANAGER, S.N.COLLEGE,
                KOLLAM-TRIVANDRUM HIGHWAY, KOLLAM-691 001

                R1 BY GOVERNMENT PLEADER
                R4 BY ADV. SRI.THOMAS ABRAHAM
                R5 BY SRI.A.N.RAJAN BABU, SC, S.N. COLLEGE

OTHER PRESENT:

                SRI. T.RAJASEKHARAN NAIR-GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16-03-2021, THE COURT ON 09-04-2021 DELIVERED THE FOLLOWING:
 W.P.(C).No.19658/2020
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                                 JUDGMENT

Dated this the 9th day of April 2021

1. This writ petition is filed seeking the following prayers:-

"(i) Call for the records leading to Ext.P15 order and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction.

(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 1 st respondent to regularize the service of the petitioner as Lecturer in Computer Applications in S.N. College, Kollam and sanction and disburse all monetary/service benefits w.e.f. 03.06.2004 with arrears, without further delay."

2. Heard the learned counsel for the petitioner, the learned

Government Pleader, the learned counsel appearing for the 5 th

respondent Manager as well as the learned standing counsel

appearing for the University quite in extenso.

3. The various allegations with regard to the merits of the

contentions of the parties have been placed on record in the

writ petition. However, I am of the opinion that what requires

consideration at the hands of this Court is with regard to the

legality and propriety of Ext.P15 order. The specific contention

of the petitioner is that this Court in Ext.P8 judgment had W.P.(C).No.19658/2020

directed the consideration of the claim for regularization

raised by the petitioner after issuing notice to all parties

concerned. It is contended that Ext.P15 order has obviously

been passed without hearing the petitioner and adverting only

to the contentions raised by the Manager. This Court, by

interim order dated 01.10.2020, had required the Government

Pleader to get specific instructions whether the petitioner was

heard before Ext.P15 had been passed.

4. A statement has been placed on record on 8 th October, 2020. It

is stated therein that the Government had already heard the

petitioner, a representative of S.N. College Management and

the staff from the Collegiate Education Department on

25.01.2020, just before the date of Ext.P8 judgment, and

therefore the Government had passed Ext.P15 order rejecting

her claim. It is contended that the representative of the

college's management had specifically informed that though

the petitioner was working in the college as a temporary

teacher, no formal orders of appointment were issued to her

and she was not appointed as a teacher in that college. It is

contended that the petitioner also does not have the requisite W.P.(C).No.19658/2020

qualification prescribed for the post by the UGC and she had

failed to produce any documents to prove her appointment and

qualification.

5. The University has also filed a statement. It is contended that

the University has not granted any approval to the petitioner's

appointment as her appointment was not done as per statutory

procedure by the Educational Agency. It is stated that the

petitioner would therefore have no preferential claim for any

further appointments. Relying on Section 57(6) of the Kerala

University Act, it is contended that there is no valid

appointment or approval thereof and therefore the petitioner

can have no claim.

6. A counter affidavit has been filed by the 5 th respondent. It is

stated that the 5th respondent college is an aided private

college affiliated to the University. It is submitted that as per

Ext.P1, 5 posts were sanctioned in the Physics department and

no post was sanctioned in Computer Application. The

management, therefore, could not carry out any appointment

of teacher in Computer Application. However, the Principal W.P.(C).No.19658/2020

engaged the petitioner to handle the classes meeting her

remuneration from the PTA fund. Petitioner's engagement was

not against any sanctioned post and there was no order of

appointment issued to the petitioner. Consequently, the

appointment was also not sent up for approval. It was only by

Ext.P3 order dated 05.11.2019, that 2 posts were sanctioned

in the Computer Application Department for the first time. The

petitioner admittedly does not have the qualification for

appointment as Assistant Professor in Computer Application

and as such, her claim could only have been rejected by the

Government.

7. The learned counsel places reliance on the decisions of the

House of Lords in Malloch Vs. Aberdeen Corporation

[(1971)1 WLR 1578] and of the Apex Court in S.L.Kapoor vs.

Jagmohan and Others [(1980) 4 SCC 379], Dharampal

Satyapal Limited vs. Deputy Commissioner of Central

Excise, Gauhati and Others [(2015) 8 SCC 519] etc. to

contend that where a notice and a hearing is an empty

formality, an order passed without hearing cannot be set aside

on the ground of non issue of a hearing notice. W.P.(C).No.19658/2020

8. I have considered the contentions advanced on all sides at

considerable length. It is clear that 5 posts in Physics had

been sanctioned to the college by Exhibit P1 order dated

20.8.2010. By Ext.P2 order, the University had passed orders

approving the work load assessed and fixing the staff strength

by which 40.5 teaching hours were available in the college in

the Computer Application Department and 3 posts were

sanctioned. By Ext.P3, the 5 posts sanctioned to the Physics

Department in the college was reviewed in the light of Ext.P2

staff fixation order of the University, the report of the Director

of the Collegiate Education as well as the request made by the

Principal. 2 posts were retained in the Physics Department. 1

post was abolished and 2 posts were shifted to the Computer

Application Department. The petitioner who had been engaged

in the Computer Application Department, taking note of the

number of hours available, had submitted representations

seeking regularization which was directed to be considered by

Ext.P8 judgment.

9. The petitioner has produced documents to show that she was

working in the college and had been treated as a Faculty in the W.P.(C).No.19658/2020

Computer Application Department. Reliance is placed on a

letter issued by the Principal of the college supporting the

petitioner's case. In any view of the matter, Ext.P8 judgment

directed the consideration of the contesting claims with notice

to the parties. It is an admitted case that no notice had been

issued to the petitioner pursuant to Ext.P8 judgment. It

appears from Ext.P15 that the specific contention of the

petitioner that she had been engaged pursuant to Exts.P1 and

P2 for teaching in the Computer Application Department of

the college and that she was fully qualified as on the date of

her initial engagement have not been considered by the

respondents at all.

10.Even if it is an admitted fact that there was no appointment

order issued to the petitioner by reason of the non sanctioning

of the posts in the Computer Application Department, I am of

the opinion that the specific case raised by the petitioner that

she should be deemed to have been so appointed was liable to

be considered by the 1st respondent with notice to the

petitioner as well. The hearing therefore, according to me,

cannot amount to an empty formality since that specifically is W.P.(C).No.19658/2020

the contention which was directed to be considered by this

Court.

11.In the above view of the matter, Ext.P15 is set aside. There

will be a direction to the 1 st respondent to reconsider the issue

with notice to all parties and after hearing the petitioner and

considering her contentions as well. Petitioner is free to

produce all documents in support of her contention before the

Government at the time of hearing. Orders shall be passed

within a period of two months from the date of receipt of a

copy of this judgment.

The writ petition is ordered accordingly.

sd/-

Anu Sivaraman, Judge sj W.P.(C).No.19658/2020

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE ORDER BEARING G.O(MS) NO.260/2010/HEDN DT 20.08.2010 ISSUED BY THE 1ST RESPONDENT AND THE RELEVANT PORTION OF SCHEDULE APPENDED TO IT

EXHIBIT P2 A TRUE COPY OF THE ORDER BEARING NO.AC.F.III/1/27458/2011 DT 20.03.2012 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P3 A TRUE COPY OF THE ORDER BEARING G.O(M,S) NO.366/2019 H.EDN DT 05.11.2019 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P4 A TRUE COPY OF THE REPRESENTATION DT 30.12.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT

EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION DT 03.01.2020 SUBMITTED BY THE PRINCIPAL S.N.COLLEGE ,KOLLAM BEFORE THE 1ST RESPONDENT

EXHIBIT P6 A TRUE COPY OF THE RELEVANT EXTRACT OF THE STAFF DETAILS OF S.N.COLLEGE ,KOLLAM

EXHIBIT P7 A TRUE COPY OF THE ORDER BEARING G.O(MS) NO.150/2019/HEDN DT 30.05.2019 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P8 A TRUE COPY OF THE JUDGMENT DT 10.02.2020 IN WPC NO.3632/2020 ON THE FILE OF THE HON'BLE HIGH COURT OF KERALA

EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION BEARING NO.D1/301/2019/HEDN DT07.03.2020 ISSUED BY THE 1ST RESPONDENT TO THE 5TH RESPONDENT W.P.(C).No.19658/2020

EXHIBIT P10 A TRUE COPY OF THE NOTIFICATION DT 03.06.2020 PUBLISHED BY THE 5TH RESPONDENT IN VARIOUS DAILIES

EXHIBIT P11 A TRUE COPY OF THE NOTIFICATION DT 13.06.2007 PUBLISHED BY THE 5TH RESPONDENT IN KERALA KAUMUDY DAILY

EXHIBIT P12 A TRUE COPY OF THE NOTIFICATION DT 05.07.2012 PUBLISHED BY THE 5TH RESPONDENT IN KAUMUDY DAILY

EXHIBIT P13 A TRUE COPY OF THE NOTIFICATION DT 05.06.2013 PUBLISHED BY THE 5TH RESPONDENT IN KAUMUDY DAILY

EXHIBIT P14 A TRUE COPY OF THE NOTIFICATION DT 07.06.2013 PUBLISHED BY THE 5TH RESPONDENT IN KAUMUDY DAILY

EXHIBIT P15 A TRUE COPY OF GO(P) NO.1056/2020/H.EDN DT 19.08.2020 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P16 A TRUE COPY OF THE ORDER BEARING GO(MS0 NO.134/98/H.EDN. DATED 09/11/1998 ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P17 A TRUE COPY OF THE RELEVANT PAGE OF THE HANDBOOK PUBLISHED BY THE 5TH RESPONDENT FOR S.N. COLLEGE, KOLLAM FOR THE ACADEMIC YEAR 2007-2008.

EXHIBIT P18 A TRUE COPY OF THE RELEVANT PAGE OF THE HANDBOOK PUBLISHED BY THE 5TH RESPONDENT FOR S.N. COLLEGE, KOLLAM FOR THE ACADEMIC YEAR 2008-2009.

EXHIBIT P19 A TRUE COPY OF THE RELEVANT PAGE OF THE HANDBOOK PUBLISHED BY THE 5TH RESPONDENT FOR S.N. COLLEGE, KOLLAM FOR THE ACADEMIC YEAR 2009-10.

W.P.(C).No.19658/2020

EXHIBIT P20 A TRUE COPY OF THE RELEVANT PAGE OF THE HANDBOOK PUBLISHED BY THE 5TH RESPONDENT FOR S.N. COLLEGE, KOLLAM FOR THE ACADEMIC YEAR 2010-2011.

EXHIBIT P21 A TRUE COPY OF THE RELEVANT PAGE OF THE HANDBOOK PUBLISHED BY THE 5TH RESPONDENT FOR S.N.COLLEGE, KOLLAM FOR THE ACADEMIC YEAR 2018-19.

EXHIBIT P22 A TRUE COPY OF THE RELEVANT PAGES OF THE HANDBOOK PUBLISHED BY THE 5TH RESPONDENT FOR S.N. COLLEGE, KOLLAM FOR THE ACADEMIC YEAR 201--20.

EXHIBIT P23 A TRUE COPY OF THE CERTIFICATE DATED 03/05/2012 ISSUED BY THE S.N. COLLEGE, KOLLAM RECOGNISING COMPLETION OF PROJECT WORK DONE BY STUDENT OF THE COLLEGE.

EXHIBIT P24 A TRUE COPY OF THE CERTIFICATE DATED 13/05/2013 ISSUED BY THE S.N. COLLEGE, KOLLAM RECOGNISING COMPLETION OF PROJECT WORK DONE BY STUDENT OF THE COLLEGE.

EXHIBIT P25 A TRUE COPY OF THE CERTIFICATE DATED 29/05/2014 ISSUED BY THE S.N. COLLEGE, KOLLAM RECOGNISING COMPLETION OF PROJECT WORK DONE BY STUDENT OF THE COLLEGE.

EXHIBIT P26 A TRUE COPY OF THE CERTIFICATE DATED 05/06/2018 ISSUED BY THE S.N. COLLEGE, KOLLAM RECOGNISING COMPLETION OF PROJECT WORK DONE BY STUDENT OF THE COLLEGE.

EXHIBIT P27 A TRUE COPY OF THE CERTIFICATE DATED 13/05/2019 ISSUED BY THE S.N. COLLEGE, KOLLAM RECOGNISING COMPLETION OF PROJECT WORK DONE BY STUDENT OF THE COLLEGE.

W.P.(C).No.19658/2020

EXHIBIT P28 A TRUE COPY OF THE CERTIFICATE DATED03/07/2020 ISSUED BY THE S.N.

COLLEGE, KOLLAM RECOGNISING COMPLETION OF PROJECT WORK DONE BY STUDENT OF THE COLLEGE.

EXHIBIT P29 A TRUE COPY OF THE CERTIFICATE DATED 25/01/2010 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT UNIVERSITY.

EXHIBIT P30 A TRUE COPY OF THE CERTIFICATE DATED 08/02/2010 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT UNIVERSITY.

EXHIBIT P31 A TRUE COPY OF THE DETAILS OF THE PAYMENT EFFECTED TO THE PETITIONER FROM THE COLLEGE FOR THE PERIOD FROM JANUARY 2019 TO FEBRUARY 2020.

TRUE COPY

PS TO JUDGE