Reji Mathew vs State Of Kerala
2022 Latest Caselaw 8717 Ker

               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
                                      2


     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
                                3


                            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

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

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

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

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

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

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

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

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

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