Kerala High Court
Dr. K.G.Beena vs Dr.Praveen M.P on 2 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 2ND DAY OF MARCH 2022/11TH PHALGUNA, 1943
W.A.NO.93 OF 2022
AGAINST THE JUDGMENT DATED 19.11.2021 IN WP(C).NO.2543/2019
OF HIGH COURT OF KERALA
APPELLANT/RESPONDENT NO.6:
DR. K.G.BEENA,
AGED 52 YEARS
LECTURER/ASSISTANT PROFESSOR (RE-DESIGANTED AS
PROFESSOR), DEPARTMENT OF RACHANA SAREERA,
(LIEN IN KAUMARABRITHYA), VAIDYARATHNAM
AYURVEDA COLLEGE, OLLUR-THYKKATTUSSERY,
THRISSUR DISTRICT-680306, RESIDING AT KAILAS
MANA,MANKUZHY LANE, KANIMANGALAM P.O.,
THRISSUR DISTRICT-680 027.
BY ADVS.SRI.ELVIN PETER P.J.
SRI.K.R.GANESH
RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 5 & 7:
1 DR.PRAVEEN M.P.,
AGED 57 YEARS, S/O.PEETHAMBARAN, READER/ASSOCIATE
PROFESSOR, DEPARTMENT OF RACHANA SAREERA,
VAIDYARATHNAM AYURVEDA COLLEGE, OLLUR-THYKKATTUSSERY,
THRISSUR DISTRICT-680 306, RESIDING AT MANAPARAMBIL
HOUSE, THUMBOOR P.O., THRISSUR DISTRICT.
2 THE MANAGER,
VAIDYARATHNAM AYURVEDA COLLEGE, OLLUR-THYKKATTUSSERY,
THRISSUR DISTRICT-680 306.
3 THE PRINCIPAL,
VAIDYARATHNAM AYURVEDA COLLEGE, OLLUR-THYKKATTUSSERY,
THRISSUR DISTRICT-680 306.
W.A.NOs.93 & 192/2022 :: 2 ::
4 THE KERALA UNIVERSITY OF HEALTH SERVICES,
MEDICAL COLLEGE P.O., THRISSUR-680 596,
REPRESENTED BY ITS REGISTRAR.
5 THE DIRECTOR OF AYURVEDA MEDICAL EDUCATION,
DIRECTORATE OF AYURVEDA MEDICAL EDUCATION,
THIRUVANANTHAPURAM-695 001.
6 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
7 DR. P.V. MADHUSUDHANAN,
LECTURER/ASSISTANT PROFESSOR, DEPARTMENT OF
KAUMARABHRITYAM, VAIDYARATNAM AYURVEDA COLLEGE,
OLLUR-THYKKATTUSSERY, THRISSUR DISTRICT-680 306.
BY ADV.SRI.GOPAKUMAR R.THALIYAL
BY ADV.SRI.S.P.ARAVINDAKSHAN PILLAY
BY SRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH
SCIENCES
BY SRI.A.J.VARGHESE, SR. GOVT. PLEADER
BY ADV.SMT.N.SANTHA
BY ADV.SRI.PETER JOSE CHRISTO
BY ADV.SRI.S.A.ANAND
BY ADV.SRI.V.VARGHESE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.02.2022 ALONG WITH W.A.NO.192/2022, THE COURT ON
02.03.2022 DELIVERED THE FOLLOWING:
W.A.NOs.93 & 192/2022 :: 3 ::
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
WEDNESDAY, THE 2ND DAY OF MARCH 2022/11TH PHALGUNA, 1943
W.A.NO.192 OF 2022
AGAINST THE JUDGMENT DATED 19.11.2021 IN WP(C).NO.19273/2018
OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
DR.K.G.BEENA
AGED 49 YEARS
PROFESSOR, DEPARTMENT OF RACHANASAREERA, (LIEN IN
KAUMARABRITHYA), VAIDYARATHNAM AYURVEDA CILLEGE, OLLUR
- THYKKATTUSSERY, THRISSUR DISTRICT, PIN - 680 306,
RESIDING AT KAILAS MANA, MANKUZHY LANE, KANIMANGALAM
P.O., THRISSUR DISTRICT, PIN - 680 027.
BY ADVS.SRI.ELVIN PETER P.J.
SRI.K.R.GANESH
RESPONDENTS/RESPONDENTS 1 TO 5:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, HEALTH & FAMILY WELFARE
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 THE KERALA UNIVERSITY OF HEALTH SERVICES
MEDICAL COLLEGE P.O., THRISSUR - 680 596,
REPRESENTED BY ITS REGISTRAR.
W.A.NOs.93 & 192/2022 :: 4 ::
3 THE DIRECTOR OF AYURVEDA MEDICAL EDUCATION
DIRECTORATE OF AYURVEDA MEDICAL EDUCATION,
THIRUVANANTHAPURAM - 695 001.
4 THE MANAGER
VAIDYARATHNAM AYURVEDA COLLEGE,
OLLUR - THYKKATTUSSERY, THRISSUR DISTRICT,
PIN - 680 306.
5 DR.PRAVEEN M.P.
DEPARTMENT OF RACHANASAREERA, VAIDYARATHNAM AYURVEDA
COLLEGE, OLLUR - THYKKATTUSSERY, THRISSUR DISTRICT,
PIN - 680 306.
BY ADV.SRI.GOPAKUMAR R.THALIYAL
BY ADV.SRI.S.P.ARAVINDAKSHAN PILLAY
BY SRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH
SCIENCES
BY SRI.A.J.VARGHESE, SR. GOVT. PLEADER
BY ADV.SMT.N.SANTHA
BY ADV.SRI.PETER JOSE CHRISTO
BY ADV.SRI.S.A.ANAND
BY ADV.SRI.V.VARGHESE
BY ADV.SRI.VISHNU V.K.
BY ADV.SMT.ABHIRAMI K. UDAY
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.02.2022 ALONG WITH W.A.NO.93/2022, THE COURT ON
02.03.2022 DELIVERED THE FOLLOWING:
W.A.NOs.93 & 192/2022 :: 5 ::
JUDGMENT
A.K.Jayasankaran Nambiar, J.
These appeals are directed against the common
judgment dated 19.11.2021 of the learned Single Judge in W.P.
(C).No.19273/2018 and W.P.(C).No.2543/2019.
2. W.P.(C).No.19273/2018 was preferred by
Dr.K.G.Beena, who, while working as a Tutor in the Department of
Rachana Sareera with a designation and pay as Professor, was
aggrieved by the proposal of the Management of the Ayurveda
Medical College to promote Dr.Praveen M.P. as the Head of the
Department of Rachana Sareera in a vacancy arising to the said
post with effect from 1.7.2018, consequent to the retirement of the
earlier incumbent on 30.6.2018.
3. W.P.(C).No.2543/2019 was preferred by Dr.Praveen
M.P. impugning the order dated 21.1.2019 of the Kerala University
of Health Sciences [KUHS], passed on representations preferred
W.A.NOs.93 & 192/2022 :: 6 ::
by Dr.Beena and himself, which found that, as between the two of
them, Dr.Beena had a superior claim to be posted as the Head of
the Department of Rachana Sareera of the Ayurveda Medical
College. While the said writ petition was pending, a consequential
order dated 28.1.2019 was also passed by the Ayurveda Medical
College promoting Dr.Beena as Associate Professor and
Dr.Praveen as Assistant Professor in the Department of Rachana
Sareera, and declaring Dr.Beena as the Head of the Department of
Rachana Sareera. The said order was also challenged in the writ
petition by amending the same.
4. The brief facts necessary for disposal of these Writ
Appeals, which essentially involve the rival claims of Dr.K.G.Beena
and Dr.Praveen M.P, for the post of the Head of the Department of
Rachana Sareera in the Vaidyaratnam Ayurveda College, Ollur,
Thaikkattussery, Thrissur District, are as follows:
Dr.K.G.Beena was the holder of a BAMS Degree when
she was appointed as Tutor at the Kottakkal Unit of the
Vaidyaratnam P.S. Varier Ayurveda College with effect from
6.8.1991. During the relevant time, the Regulations that governed
the appointment of teachers in the Ayurveda Medical Colleges,
W.A.NOs.93 & 192/2022 :: 7 ::
affiliated to the Calicut University, was the Calicut University
Regulations, and as per the said Regulations, only the basic
qualification of BAMS was required for appointment as Tutor. She
was later transferred to the Ollur Unit of the Ayurveda College
with effect from 3.11.1994, and while there, she was promoted as
Lecturer with effect from 26.2.1999. It is relevant to note that the
Regulations in question were amended with effect from 29.6.1999,
and later, Special Rules for the Kerala State Ayurveda Medical
Education (Teaching) Services were also promulgated by the
Government by G.O. dated 2.8.2007. The said changes in the
Regulations were consequent to the introduction of the
Department system in Ayurveda Medical Colleges based on the
norms issued by the Central Council of Indian Medicine.
Dr.K.G.Beena acquired her MD qualification in 2002, and
immediately thereafter rejoined duty at the Ollur Unit on 3.5.2002.
In the meanwhile, on 22.4.2000, in the wake of the introduction of
the Department system and the consequential staff pattern, the
Principal of the College called for options to be exercised by the
teaching staff for the various Departments in the College.
Although Dr.Beena submitted an option for the Kaumarabrithya
Department, and an order dated 30.5.2000 was passed by the
W.A.NOs.93 & 192/2022 :: 8 ::
Director of Ayurveda Medical Education allotting Dr.Beena to the
Department of Rachana Sareera, with a lien retained in the
Kaumarabrithya Department, she could not actually be posted in
the Kaumarabrithya Department for want of a sanctioned post of
Lecturer in the said Department. The arrangement whereby she
continued to work in the Department of Rachana Sareera,
notwithstanding retaining a lien in the Kaumarabrithya
Department where, curiously, there was no post, was approved by
the Calicut University vide order dated 14.2.2005.
5. It would appear that Dr.Beena continued to pursue
her claim for a formal appointment against a sanctioned post in
the Kaumarabrithya Department, with the State Government as
also the University, but the said request fell on deaf ears. She
therefore approached this Court through W.P.(C).No.29200/2007,
which was disposed by judgment dated 3.10.2007, directing the
University to consider and pass orders on her representation.
Acting on the said judgment, the University proceeded to reject
the request of Dr.Beena for shifting of a post of Lecturer to the
Department of Kaumarabrithya so as to accommodate her. This
order dated 15.2.2008 of the University was challenged by
W.A.NOs.93 & 192/2022 :: 9 ::
Dr.Beena in W.P.(C).No.7529/2008, wherein, the Court, taking note
of the directions that had been issued in an earlier writ petition
pertaining to staff pattern in Ayurveda Medical Colleges, allowed
the writ petition of Dr.Beena. The judgment of the learned Single
Judge, however, was carried in an appeal before a Division Bench,
at the instance of one Sri.P.V.Madhusoodhanan, and in the
judgment dated 22.12.2009 in W.A.No.2385/2009, the Division
Bench directed the Calicut University to reconsider the issue
regarding the claim of Dr.Beena for accommodation in the
Department of Kaumarabrithya, afresh, after hearing all the
relevant parties.
6. The Calicut University thereafter proceeded to pass
an order dated 2.5.2011 directing the Management to
accommodate Dr.Beena in the Department of Kaumarabrithya, as
and when a vacancy to the post of Lecturer arose in the said
Department. It was made clear in the said order that it was only
thereafter that the claim of Dr.Praveen M.P. for promotion and
posting in the Department of Rachana Sareera could be
considered. The said order of the Calicut University was again
impugned by Sri.Madhusoodhanan in W.P.(C).No.13960/2011,
W.A.NOs.93 & 192/2022 :: 10 ::
wherein, this Court, by judgment dated 7.3.2017, directed the
University to reconsider the matter.
7. While matters stood so, Dr.Beena was granted the
designation and pay of Professor with effect from 20.1.2012 as per
order dated 24.6.2014. By the same order, Dr.Praveen was also
given the designation and pay as Assistant Professor. Both these
actions were approved by the Director of Ayurveda Medical
Education. The Calicut University, by an order dated 13.9.2017,
directed Dr.Beena to be posted as Professor in Kaumarabrithya,
and thereafter to post Dr.Praveen as Professor in Rachana
Sareera. This order of the University was impugned in W.P.
(C).No.31548/2017, at the instance of Madhusoodhanan, and in
the said writ petition, by an interim order dated 4.10.2017, the
operation of the said University order was stayed by this Court. In
the meanwhile, apprehending a promotion of Dr.Praveen as the
Head of the Department of Rachana Sareera in the College,
Dr.Beena preferred a representation dated 5.6.2018 before the
University, and immediately thereafter approached this Court
through W.P.(C).No.19273/2018. It would appear that, acting on
the said representation, as also a similar representation received
W.A.NOs.93 & 192/2022 :: 11 ::
from Dr.Praveen, the University [which, by now, was a different
one namely, "the Kerala University of Health Sciences"], passed an
order dated 21.1.2019 finding that Dr.Beena's service in the
Department of Rachana Sareera could not be ignored, and that the
action of the Management of the College in retaining her lien in
the Kaumarabrithya Department, when there was no sanctioned
post of Lecturer in the said Department, was wholly illegal. The
logical result, according to the University, was that both
Dr.Praveen as also Dr.Beena had to be seen as Teachers in the
Department of Rachana Sareera, and when so viewed, Dr.Beena
had to be seen as senior to Dr.Praveen, and therefore, entitled to
preferential appointment as the Head of the Department of
Rachana Sareera in the College. It is the said order dated
21.1.2019 of the KUHS that is impugned by Dr.Praveen in W.P.
(C).No.2543/2019, where he contends that insofar as Dr.Beena had
never opted for the Department of Rachana Sareera, and her claim
was always to a post in the Department of Kaumarabrithya, the
impugned order of the University could not be legally sustained.
While the said writ petition was pending, the College proceeded to
pass consequential order dated 28.1.2019, promoting Dr.Beena as
Associate Professor and Dr.Praveen as Assistant Professor in the
W.A.NOs.93 & 192/2022 :: 12 ::
Department of Rachana Sareera, and declaring Dr.Beena as the
Head of that Department. This latter order was also impugned by
Dr.Praveen, by amending his writ petition accordingly.
8. Counter affidavits were filed by the Director,
Ayurveda Medical Education as also by the Manager of the
Vaidyaratnam Ayurveda Medical College. Reply affidavits are also
seen filed by the respective writ petitioners. The learned Single
Judge, who considered the matters, after noticing the rival
contentions, opined that if the KUHS had noticed the occurrence
of vacancy, on account of superannuation of the earlier incumbent
in the Department of Kaumarabrithya, in 2017, and accommodated
Dr.Beena to the said vacancy, there would have been no occasion
for a controversy to reach this Court. The learned Single Judge
held that the matter required a reconsideration, in the hands of
the University, by taking note of the fact that there was a vacancy
of Professor in the Department of Kaumarabrithya with effect from
September, 2017, and inasmuch as the lien of Dr.Beena had been
recognized in the Department of Kaumarabrithya, she should have
been accommodated to the said vacancy, notwithstanding her
continuous teaching service rendered in the Department of
W.A.NOs.93 & 192/2022 :: 13 ::
Rachana Sareera. The learned Single Judge felt that if the lien of
Dr.Beena was recognized in Department of Kaumarabrithya, then
the teaching experience obtained in the Department of Rachana
Sareera could be counted towards the experience in the
Department of Kaumarabrithya, and she could accordingly be
accommodated to the vacant post of Professor in that Department.
The said arrangement would also have ensured that the rival
claimant - Dr.Praveen could continue in the Department of
Rachana Sareera and stake a claim to the post of Head of that
Department. While disposing the writ petitions accordingly, by
setting aside the order impugned in the writ petitions, the learned
Judge directed that the order of promotion of Dr.K.G.Beena as the
Head of the Department be kept in abeyance till a decision was
taken by the University, and the writ petitioners assigned their
respective seniority in the appropriate Department in the College.
9. In the appeals preferred by Dr.Beena against the
common judgment of the learned Single Judge, the contention of
Sri.Elvin Peter P.J., the learned counsel appearing for the appellant
is essentially that the learned Single Judge erred in directing a
reconsideration of the matter by the University, more so when, in
W.A.NOs.93 & 192/2022 :: 14 ::
the order dated 21.1.2019 of the University, the action of the
Management of the College in retaining the lien of Dr.Beena in the
Department of Kaumarabrithya, when there was no sanctioned
post of Lecturer in that Department, was found to be illegal. He
would contend that the concept of a lien is always in relation to a
sanctioned post, and in the absence of a post, there could not be a
lien. Accordingly, when one went by the actual work rendered by
Dr.Beena in the years from 1991, it had to be found that she had
all along worked in the Department of Rachana Sareera, for it was
only in that Department that there was post to accommodate her.
Having worked in the said Department, and inasmuch as she was
admittedly senior to Dr.Praveen in that Department, it was only
natural that the vacancy to the post of the Head of Department be
extended to her in preference to Dr.Praveen.
10. During the course of hearing, we interacted with the
Director of Ayurveda Medical Education through video conference
when he referred us to the Special Rules for the Kerala State
Ayurveda Medical Education (Teaching) Services, to highlight that
a promotion to the post of Associate Professor/Professor required
a candidate to have a prescribed minimum number of years of
W.A.NOs.93 & 192/2022 :: 15 ::
teaching experience in the particular Department. He would point
out that, in the light of the Special Rules, which came into force
with effect from 4.8.2007, Dr.Beena could aspire for promotion
only in the Department of Rachana Sareera, in which she had the
necessary teaching experience. The contention of Sri.Gopakumar
R. Thaliyal, the learned counsel for Dr.Praveen, on the otherhand,
is that Dr.Beena had, all along, staked her claim for a post in the
Department of Kaumarabrithya based on the lien that was
assigned to her in that Department, and hence, it was
inappropriate/improper for her to turn around and seek service
benefits through promotion in the Department of Rachana
Sareera. He would point out that the placement of Dr.Beena in the
Department of Rachana Sareera, has had the effect of impeding
the chances of promotion of Dr.Praveen, who, after years of
service, will retire from the sanctioned post of Assistant Professor.
The submission of Sri.Peter Jose Christo, the learned counsel for
the Ayurveda College, defending the order passed by the College
appointing Dr.Beena as the Head of the Department of Rachana
Sareera, is that the College was acting only pursuant to the
directions issued by the University, and the claim of Dr.Beena
could be considered only in the Department of Rachana Sareera,
W.A.NOs.93 & 192/2022 :: 16 ::
where she had actually rendered teaching work.
11. On a consideration of the rival contentions, we find
ourselves unable to uphold the directions of the learned Single
Judge relegating the issue to the University for a fresh
consideration. The directions issued by the learned Single Judge
were apparently without noticing the express provisions in the
Special Rules aforementioned, which have necessarily to be
adhered to while deciding the inter se claim of Dr.Beena and
Dr.Praveen to the post of the Head of the Department of Rachana
Sareera. As pointed out by the Director of Ayurveda Medical
Education, the Special Rules clearly mandate a requisite period of
experience in the same Department as a criteria for cadre
promotion. It would follow therefore that promotions can be
claimed by Dr.Beena only in the Department of Rachana Sareera
and not to any post in the Department of Kaumarabrithya. The
contention of the learned counsel for Dr.Praveen that Dr.Beena
had all along had a lien in the Department of Kaumarabrithya,
cannot be accepted for the simple reason that it is an admitted
fact that during the relevant period when she held the lien, there
was no sanctioned post of Lecturer/Assistant Professor in the said
W.A.NOs.93 & 192/2022 :: 17 ::
Department. A lien must necessarily be in relation to a sanctioned
post that exists, and in the absence of a post, the concept of a lien
become meaningless. We are therefore of the view that the order
dated 21.1.2019 of the KUHS and the consequential order dated
28.1.2019 of the Ayurveda Medical College concerned, do not call
for any interference.
For the reasons stated above, we allow the Writ Appeals,
by setting aside the impugned judgment of the learned Single
Judge, to the extent it relates to W.P.(C).No.19273/2018 and W.P.
(C).No.2543/2019. Accordingly, W.P.(C).No.19273/2018 will stand
allowed in terms of the order dated 21.1.2019 of the University
and the order dated 28.1.2019 of the Ayurveda Medical College,
whereas W.P.(C).No.2543/2019 shall stand dismissed. There will
be no order as to costs.
Sd/-
A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
MOHAMMED NIAS C.P.
JUDGE
prp/
