Kerala High Court

Vishnuprasad C.B vs State Of Kerala on 6 July, 2022

               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

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

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

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

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

months from the date on which the recommendations of the

University reaches them.

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

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