Kerala High Court
Dr. Balachandran S vs Dr. Balachandran S on 27 January, 2021
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
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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
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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 19-01-
2021, ALONG WITH WA.1873/2019, THE COURT ON 27-01-2021
DELIVERED THE FOLLOWING:
WA Nos.1599 & 1873/2019
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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
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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 19-01-
2021, ALONG WITH WA.1599/2019, THE COURT ON 27-01-2021
DELIVERED THE FOLLOWING:
WA Nos.1599 & 1873/2019
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JUDGMENT
Dated this the 27th 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
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 senior-
most. 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
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
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
"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
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
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
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/-
GOPINATH P.
Rp JUDGE
WA Nos.1599 & 1873/2019
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
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
