Kerala High Court
C.J.Paul vs State Of Kerala on 11 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.
FRIDAY, THE 11TH DAY OF MARCH, 2022/ 20TH PHALGUNA, 1943
WP(C) NO. 15984 OF 2010
PETITIONER/S:
C.J.PAUL, LECTURER IN ENGLISH
ST.THOMS COLLEGE, PALA, NOW ON DEPUTATION AS,
H.S.S.T. IN HOLY CROSS H.S.S., CHERPUNKAL,,
KOTTAYAM.
BY ADV SRI.P.C.SASIDHARAN
RESPONDENT/S:
1 STATE OF KERALA
SECRETARY TO GOVERNMENT, HIGHER EDUCATION
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.
2 THE DIRECTOR OF COLLEGIATE EDUCATION
OFFICE OF THE DIRECTOR OF COLLEGIATE EDUCATION,,
THIRUVANANTHAPURAM.
3 THE DEPUTY DIRECTOR OF COLLEGIATE
EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF,
COLLEGIATE EDUCATION, KOTTAYAM.
4 THE MAHATMA GANDHI UNIVERSITY
REPRESENTED BY ITS REGISTRAR, ATHIRAMPUZHA,,
KOTTAYAM.
5 THE MANAGER ST.THOMAS COLLEGE
PALA, KOTTAYAM.
6 JOBY MATHEW
KALLAKAVUMKAL, PONNAMKAYAM.P.O., KOZHIKODE
DISTRICT - 673 603.
7 GEM CHERIAN
THAZHOOR HOUSE, NARIANANI.P.O., PIN- 686 653.
8 SHILPA MATHEW
ERUVELIKUNNEL,KADANAD.P.O., MANJOOR.P.O., PIN -
686 653.
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W.P.(C ) No. 15984/2010
9 JOSEPH SEBASTIAN
THANNICKAPARAYIL, MANJOOR.P.O., PIN - 686 603.
10 JISHNU VENUGOPAL
MALEYAM (MBRRA 22), MATHRUBHOOMI ROAD RESIDENCE
ASSOCIATION, VANCHIYOOR.P.O., PIN-695 035.
(ADDITIONAL R6 TO R10 IMPLEADED AS PER ORDER
DATED 19-7-2012 IN I.A. NO. 9645/2012)
BY ADVS.
SRI.BABU VARGHESE (SR.) AND
SRI.C.V.ALEXANDER FOR R5
GOVT. PLEADER SRI. BIJOY CHANDRAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.02.2022, THE COURT ON 11-3-2022
DELIVERED THE FOLLOWING:
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W.P.(C ) No. 15984/2010
A.K. JAYASANKARAN NAMBIAR,
&
MOHAMMED NIAS C.P, JJ.
.......................................................................
W.P. (C )No. 15984 of 2010
..........................................................................
Dated this the 11th day of March, 2022
JUDGMENT
Mohammed Nias C.P. J.,
The writ petitioner claims to be a post graduate in English, with
National Eligibility Test qualification fully qualified for being appointed
to the post of Lecturer in the affiliated colleges of the State. The 5 th
respondent Management issued Ext. P1 notification inviting
applications from qualified hands for filling up posts including the post
of Lecturer in English. Following the said process, by Ext. P2 order,
the petitioner was offered appointment as Junior Lecturer. At that
time, college teachers working in affiliated colleges were classified as
Lecturers coming under the UGC Scheme and Junior Lecturers coming
under the Pre-Degree course category. The Government, on
implementation of UGC Scheme, issued order classifying the
W.P.(C ) No. 15984/2010
teachers in the two categories as Pre-degree teachers and teachers
coming under the UGC Scheme in the ratio of 48% and 52%
respectively. The petitioner's appointment initially was a period of
178 days to a leave vacancy caused consequent to the availing of
leave by a permanent Lecturer. Before the cessation of the above
leave vacancy, yet another leave vacancy arose in the college and in
continuation of the earlier appointment, the petitioner was shifted to
that post by Ext. P3 order. While holding so, a permanent vacancy
arose in the college, consequent to the retirement of Sri. E.C.Varkey,
Lecturer, Selection Grade, and the petitioner was offered with an
appointment to the said post on 1-4-1997 as per Ext. P4. The said
appointment, it is submitted, was made in terms of the University Act
and Statute. It is around this time, that the government promulgated
the Pre-Degree Course (Abolition) Act, 1997 de-liniking the Pre-Degree
Course from the Colleges and by Section 5 of the Act, the
Government imposed a ban on appointment of teachers etc. for a
period of three years from the date of commencement of the Act. In
the light of the above, no formal approval order was issued. Since the
salary was not paid and several teachers were affected, Government
issued orders, directing the Directorate of Collegiate Education to
approve the appointments for the limited purpose of the disbursement
W.P.(C ) No. 15984/2010
of salary and accordingly by Ext. P5 proceedings dated 6-09-2000,
petitioner's appointment was also approved. By Ext. P6 order dated
11-07-1997, the management declared the probation of the petitioner
in the category of Junior Lecturer.
2. While continuing as an approved probationer, due to the
de-linking of the pre-degree course, there was a shortfall of workload
in the department of English which resulted in the deployment of the
petitioner as Higher Secondary School Teacher (HSST) in terms of the
Government Orders and by proceedings dated 15-1-2002, Ext. P7,
petitioner was transferred as HSST by the Corporate Educational
Agency. Several vacancies arose during the year 2008-2009 and also
2009-2010. Petitioner submits that since he was a deployed teacher,
he was entitled to re-appointment/re-deployment to the post of
Lecturer in English in terms of the Government Orders and the
Judgment of this Court. Government had issued Ext. P8 G.O.(MS) No.
114/2002/H.Edn. Dated 5-09-2002, dealing with the deployment of
the said teachers. This issue came up before this Court in large
number of Writ Petitions and in W.P.C. 33707 of 2001, the following
directions were issued by this Court, as seen from the judgment
marked as Ext. P9.
W.P.(C ) No. 15984/2010
"1. The Director of Collegiate Education is directed to
identify surplus teaching staff in various colleges in the
State after calling for particulars from the colleges and
make a report to the Government in the order of seniority
of such suplus teaching staff available in the colleges for
deployment to Higher Secondary Schools. From among
the list prepared by the Director, the Government shall
identify the Junior Lecturers who are found surplus or
such the Junior Lecturers who do not have the
qualification to teach in colleges to the deployed to
Higher Secondary Schools.
2. Those of the college teachers who are deployed to
Higher Secondary Schools and who have qualification to
teach in colleges should be allowed to go back to their
respective colleges as and when vacancies arise in such
colleges.
3. Government as far as possible can consider
deployment of surplus teaching staff in several colleges
to Higher Secondary Schools under the very same
W.P.(C ) No. 15984/2010
management and give option to the teaching staff to be
absorbed in the Higher Secondary Schools on return
basis.
4. The teaching staff who are deployed to Higher
Secondary Schools from the colleges should be allowed to
retain their lien in the college so that as and when
vacancies arises in their department, they will be able to
go back to their colleges.
5. Government will get the surplus teaching staff fixed in
the colleges and the surplus teaching staff from the
colleges should be deployed to Higher Secondary Schools
before the commencement of the next academic year".
3. Notwithstanding the above, the management issued a fresh
notification inviting application from qualified hands to fill up various
posts including the post of Lecturer in English by Ext. P11 notification.
This was challenged by the petitioner and an interim order was
granted in favour of the petitioner.
W.P.(C ) No. 15984/2010
"The respondents shall not effect appointment
pursuant to Ext. P11 to the extent it pertains to
selection to the post of Lecturer in English in the 5 th
Respondent's College, without obtaining further
orders from this Court"
4. Petitioner made a representation on 23-3-2010 to
the management seeking re-deployment where a permanent vacancy
arose which was declined was declared by Ext. P13 order dated
8-4-2010. The respondent management again issued a notification to
fill up the post of Assistant Professors including in English Department
by Ext. P14 notification. Exts. P11 and P14, are challenged in the Writ
Petition and also seeking for a direction to compel the respondents to
appoint the petitioner in one of the existing vacancies of Lecturer in
the 5th respondent College.
5. The 5th respondent Management filed a counter in which it
is contended that the Junior Lecturers like the petitioner were
appointed after getting specific undertaking to the effect that they will
not make any claim for absorption as Lecturers in colleges or for
obtaining UGC benefits in future and since the petitioner has given
an undertaking, he cannot make any further claim. It is further
contended that it is the University and the Academic Council which
W.P.(C ) No. 15984/2010
has the authority to prescribe qualification and grant exemptions
and that the Government has no authority to encroach into the powers
of the autonomous university or interfere in the affairs of the private
colleges especially in the management of the institution. Thus, the
government Orders were challenged as having no force of law. It was
pointed out that the Management had filed Writ Petition challenging
the Government Orders. It is also contended that the petitioner is not
entitled any automatic re-appointment. The Management further
contends that it is only those Lecturers whose appointments were
approved by the University who will be entitled to claim lien on the
colleges or claim appointment. Since the petitioner's appointment
was not approved, he does not have a lien and thus prayed for
dismissing the Writ Petition.
6. The Government had filed a counter affidavit stating that
going by the relevant Government Orders, those Junior Lecturers who
are already deployed in the school run by the same management are
not entitled for re-deployment to the Colleges and thus contended that
the Writ Petitioner cannot be granted any orders in the Writ Petition.
The additional respondent impleaded in the case also filed a counter
affidavit inter alia contending the same.
W.P.(C ) No. 15984/2010
7. We heard the learned counsel Sri. P.C. Sasidharan for the
petitioner, learned Senior Counsel Sri.Babu Varghese, instructed by
the learned Counsel Sri. C.V. Alexander for the 5th respondent and the
learned Government Pleader Sri. Bijoy Chandran.
8. At the outset, it has to be noted that we have considered
similar issues in two Writ Petitions namely W.P. (C ) Nos. 21840 of
2009 and W.P.C. 38220/2010. Incidentally, WPC 21840/2009 was
filed by the 5th respondent college herein challenging the Government
Orders dated 1-7-2009 and 22-7-2009 which directed re-deployment
of the similarly situated persons like the petitioner herein. We had by
Judgment dated 03-02-2022 dismissed the Writ Petition filed by the
Management and allowed the Writ Petition filed by the similarly
situated teachers declaring their right to re-deployment. In view of
the said judgment, the main issue arising in this Writ Petition stands
covered against the respondent management and in favour of the
petitioner. The only contention that needs to be considered is made
on behalf of the Government and the additional 6 th respondent in W.P.C.
38220/2010 is that if the deployment was to a school under the same
management, there cannot be a re-deployment to the College under
W.P.(C ) No. 15984/2010
them.
9. It does not stand to reason that a teacher who was deployed
for no fault of his cannot claim re-deployment when a vacancy arose in
the college from where he was deployed. The very purpose of the
Government Orders providing for re-deployment was considered by us
in the judgment mentioned above. There is no reason pointed out to
differentiate the petitioner's case from that of the case of the
petitioner in W.P.C. 38220/2010.
10. We are also not shown the basis on which such
assertion is made by the Government in their counter affidavit. As a
matter fact, the said stand goes against the condition No. (3) in Ext.
P9 judgment dated 11-2-2003 mentioned earlier. It is also to be
noticed that Government by Ext. P15 order dated 1-7-2009 had
issued orders directing the re-deployment of teachers who were
earlier deployed to the Higher Secondary Schools. The petitioner was
appointed to a permanent vacancy based on his UGC qualification and
there is no dispute by any of the respondents regarding the eligibility
of the petitioner. Petitioner's appointment, in fact was not as pre-
degree teacher but it was to the College itself in a substantive vacancy
W.P.(C ) No. 15984/2010
and the deployment to the Higher Secondary School happened only on
the basis of the Government Orders as stated earlier. The petitioner
having being deployed on the basis of the Government Orders, the
management cannot be heard to say that they will not abide by the
Government Orders which directs re-deployment again on the basis of
the later Government Orders. Thus, we hold that the contention of the
6th respondent in depriving the petitioner of re-deployment cannot be
accepted. The rejection of the Ext. P12 representation by the
petitioner by Ext. P13 communication of the College is clearly wrong.
It is clear from Exts. P11 and P14 notifications that there were
vacancies to the posts of Assistant Professor in English. The denial of
re-deployment of the petitioner is held to be illegal. In such
circumstances, it is declared that the petitioner was entitled to be re-
deployed in the English Department when the vacancy arose. The
petitioner though was eligible was not given appointment and the
said action of the management is unjustifiable. Petitioner was
compelled to continue in the Higher Secondary School and was paid
salary on that basis.
11. The Writ Petition is allowed and it is declared that the
petitioner was entitled to get re-deployment to the vacancies which
W.P.(C ) No. 15984/2010
arose during the period 2010 -2011 which is is evident from Ext. P11
notification. Petitioner will be entitled to all the consequential benefits
flowing from the above declaration from the date of Ext. P11
notification. Respondents 1 to 3 or the competent among them will
quantify the amounts payable to the petitioner and pay the same to
the petitioner within four months from the date of receipt of a copy of
this judgment. Since we are told that the petitioner has retired, he
shall be granted all notional benefits as a consequence of the
declaration granted. Government will be free to recover the amounts
paid to the petitioner from the management, if they so desire.
This Writ Petition is allowed as above.
Sd/-A.K. JAYASANKARAN NAMBIAR, Judge
Sd/-MOHAMMED NIAS C.P., Judge
ani/ /true copy/
W.P.(C ) No. 15984/2010
APPENDIX
PETITIONER'S EXTS:
Ext. P1: True copy of the notification dated 29-4-1996
Ext. P2: True copy of the appointment order dated 11-
07-1996
Ext. P3: true copy of the proceedings of the
management dated 23-08-1996
Ext. P4: True copy of the proceedings of the
management dated 1-4-1997
Ext.P5: True copy of the proceedings of the Deputy
Director of Collegiate Education dated 06-09-2000 with
Annexure
Ext. P6: True copy of the order issued by the
management dated 11-07-1999
Ext. P7: True copy of the memo issued by the corporate
educational agency dated 15-1-2002
Ext. P8 : True copy of G.O. (MS) No. 114/2002/H.Edn.
Dated 5-09-2002
Ext. P9:True copy of the judgment in W.P. © No.
33707/2001
W.P.(C ) No. 15984/2010
Ext. P10: True copy of the proceedings of the Vice
Chancellor dated 23-12-2003
Ext. P11: True copy of the fresh notification
Ext. P12: True copy of the representation submitted by
the petitioner dated 23-3-2010
Ext. P13: True copy of the communication issued by the
management dated 8-4-2010
Ext. P14:True copy of the Notification appeared in
Deepika Daily
Ext. P14: true copy of order issued by the University on
20-1-2006
Ext. P15: True copy of orderdated 1-7-2009
Ext. P16: True copy of the judgment in W.A. No. 2780/99
dated 18-11-2000
Respondent 5 Exts:
R5(a): True copy of the GO. MS No. 76/90/H.Edn.dated 23-3-1990
R5(b): True copy of the G.O. MS No. 30/96/H.Edn.dated 12-2-1996
R5(c): True copy of the University Communication dated 24-7-1997, issued
to this respondent
R5(d): True copy of the judgment dated 11-8-1997 in O.P. 723/97
Ext. R5(e): True copy of the G.O. (Ms) No.171/97 H.Edn. Dated 8-12-1997
Ext. R5(f): True copy of the G.O. (MS) No. 145/00/H.Edn.5-10-2000
Ext. R5(g): True copy of the G.O. (MS) No. 307/01/Gl.End. Dated 15-10-
Ext. R5(h): True copy of the letter dated 1-11-2001 issued by the Director
of Collegiate Education
Ext. R5(i): True copy of the affidavit filed before this Hon'ble Court, dated
W.P.(C ) No. 15984/2010
17-06-2002
Ext. R5(j): True copy of the judgment dated 24-08-2001 in O.P. No.
25616/2001
Ext. R5(k): True copy of the Judgment dated 30-3-2001 in W.A. No.
1318/2001
Ext. R5(l): True copy of the order dated 18-10-2001 in CMPNo.
8289/2001 in W.A. No. 3568/2001
Ext. R5(m): True copy of the judgment dated 24-6-3004 in O.P.
3352/2002
Ext. R5(n): True copy of the letter No. 20453/D2/04 H.Edn.dated 22-2-
Ext. R5(n): True copy of the letter No. 20353/D2/04 H.Edn. Dated 22-2-
Ext. Rr(o): True copy of the G.O. Dated 7-2-2003
Ext. R5(p): True copy of the undertakinhg, dated 19-6-1996
Ext. R5(q): True copy of the judgment in I.A. 159/2003 in unnumbered
WritAppeal of 2003
Ext. R5 (r): True copy of the proceedings issued by theVice Chancellor,
M.G. University
Ext.R5(s): True copy of the list of Junior Lecturers worked in the college
and later deployed to Higher Secondary School
Ext. R5(t): True copy of the undertaking, dated 16-6-1996 given by the
petitioner
Ext. R5(u): True copy of the G.O. (MS) No. 344/98/Gen. Dated 29-8-1998
Ext. R5(v): True copy of the minutes of selection committee held on 28-5-
