IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 36335 of 2010(N) -------------------------- PETITIONER: --------------- DR. R. ASALETHA, W/O. GIRISH, AGED 42 YEARS, SENIOR LECTURER IN CHEMISTRY COCHIN UNIVERSITY COLLEGE OF ENGINEERING KUTTANAD, ALAPPUZHA DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.M.SAJJAD RESPONDENT(S): --------------- 1. THE COHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY (CUSAT) REPRESENTED BY ITS REGISTRAR P.O. KOCHI UNIVERSITY, COCHIN-682022. 2. THE VICE CHANCELLOR COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY(CUSAT) P.O.KOCHI UNIVERSITY, COCHIN-682022. 3. THE SYNDICATE OF CUSAT COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY (CUSAT) P.O. KOCHI UNIVERSITY, COCHIN-682022. BY ADV. SRI.SURIN GEORGE IPE(SC) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC 36335/10 PETIITONER'S EXTS: EXT.P1: COPY OF NOTIFICATION OF THE UNIVERSITY DT.7.4.00.. EXT.P2: COPY OF RELEVANT PAGE OF THE RANK LIST DT.8.3.01. EXT.P3: COPY OF JUDGMENT OF THIS COURT IN OP NO.2488/03 DT.5.3.03. EXT.P4: COPY OF ORDER NO.AD.D3/2488/03/O.P. OF THE UNIVERSITY DT.11.7.03. EXT.P5: COPY OF ORDER NO.AD.D3/2488/03 /OP OF THE UNIVERSITY DT.1.1.04. EXT.P5(A): COPY OF ORDER NO.AD.D3/2488/03/O.P. OF THE UNIVERSITY DT.24.4.04. EXT.P6: COPY OF ORDER -DO -DO- DT.17.3.05. EXT.P7: COPY OF ORDER O.AD.E3/24344/III/L/2001 OF THE UNIVERSITY ALONG WITH RELEVANT PAGE OF THE LIST DT.25.5.01. EXT.P8: COPY OF ORDER NO.AD.D3/24344/III/L/2001 OF THE -DO- DT.9.5.03. EXT.P9: COPY OF ORDER NO.AD.D3/24344/VII/L/2001 OF THE -DO- DT.5.8.2002. EXT.P10: COPY OF REPRESENTATION SUBMITTED BEFORE THE 3RD RESPONDENT DT.24.4.10. EXT.P11: COPY OF RANK LIST NO.AD.D3/24344/99(33) PUBLISHED IN KERALA GAZETTE DT.8.3.01. EXT.P12: COPY OF ROTATION LIST DT.NIL. EXT.P13: COPY OF UNDERTAKING OF THE UNIVERSITY DT.14.6.99. EXT.P14: COPY OF LETTER NO.11248/B2/99/H.EDN. OF THE GOVERNMENT DT.7.6.99. EXT.P15: COPY OF LETTER NO.14470/D1/07/H.EDN. OF THE GOVERNMENT DT.5.6.09. EXT.P16: COPY OF THE DECISION REPORTED IN 2008(7) SCC 728. RESPONDENTS' EXTS: EXT.R1(A): COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER DT.2.8.04. EXT.R1(B): COPY OF ORDER PASSED BY THE RESPONDENT DT.17.12.08. TRUE COPY P.A.TO JUDGE dsn T.R.RAMACHANDRAN NAIR, J. -------------------------------------------------- W.P.(C)No.36335 of 2010 -------------------------------------------------- DATED THIS THE 13th DAY OF OCTOBER, 2011 J U D G M E N T In this Writ Petition, the petitioner, who is working as Senior Lecturer in Chemistry under the 1st respondent University is seeking for various benefits by granting regular appointment from March, 2001 onwards. 2. The back ground of the grievance raised by the petitioner is the following: 3. Exhibit P1 is the notification issued by the University inviting application for appointment in various posts in different Departments. The petitioner was included in the rank list against the post of Lecturer in Chemistry as rank No.5 as evident from Exhibit P2 rank list. She is a candidate from Hindu-Ezhava (OBC) community. 4. When delay occurred in getting appointment, the petitioner approached this Court by filing O.P.No.2488/03 which was disposed of as per Exhibit P3 judgment. She was initially appointed as a Guest Lecturer by the University with effect from W.P.(C)No.36335/10 -2- 18.7.2003. Thereafter, by Exhibit P5, she was appointed as a Part Time Lecturer from 12.1.2004. The said appointment was made in the Cochin University College of Engineering, Kuttanadu. She was regularised as Full Time Lecturer by Exhibit P6 order from 12.1.2004 and later became a Lecturer Senior Grade with effect from 2.2.2008. 5. According to the petitioner, when the ranked list was published on 8.3.2001, there was a vacancy to appoint the petitioner. But the appointment was actually given only on 18.7.2003. In various other vacancies appointments were made in 2001 itself and in support of the said plea, Exhibit P7 order is produced. The further contention raised in paragraph No.5 of the Writ Petition is that even in 2001 there was as many periods for Chemistry as that of Physics in the Cochin University College of Engineering, Kuttanad. Finally, the petitioner filed a representation as per Exhibit P10 and on failure to get any reply, this Writ Petition has been filed. 6. The respondent-University has filed a counter affidavit. 7. Heard the learned counsel for the petitioner and the W.P.(C)No.36335/10 -3- learned Standing Counsel for the University. 8. The learned counsel for the petitioner submitted that the petitioner was entitled to be appointed even from the date of publication of the rank list as there were two vacancies. It is submitted that the petitioner had to file a Writ Petition as O.P.No.2488/2003 for getting appointment. It is submitted that there was purposeful delay in making the appointment. The learned counsel for the petitioner further submitted that when appointments were made in other Departments, there was no justification for delaying the appointment of the petitioner. Reliance is placed on the decision of the Apex Court in Balwat Singh Narwal and others v. State of Haryana and others (2008(7) SCC 728). 9. The learned Standing Counsel for the University explained that when the first rank holder was appointed, one full time post was available and after this Court issued direction in Exhibit P3 judgment also, there were no sufficient periods, namely 16 hours per week for appointing the petitioner on a full time basis. Therefore, initially the petitioner was appointed as a Guest Lecturer and when sufficient periods were available alone W.P.(C)No.36335/10 -4- she could be appointed as a Part Time Lecturer. But, still the University, thereafter, by considering the request of the petitioner appointed her on full time basis from the date on which Part Time Lecturership was granted from 12.1.2004. 10. A reading of Exhibit P3 judgment throws some light into the dispute and the reason for the delay occurred in the matter of appointment of the petitioner. Therein the University had contended that the periods available for teaching Chemistry do not justify the appointment of a full time teacher. Ultimately, this Court issued the following directions in paragraph No.4. “4. The University shall appoint the petitioner as Lecturer in Chemistry. In case there are not sufficient periods to engage a full time Lecturer, the petitioner shall be engaged on part time basis. Suppose there are not sufficient periods, even for engaging a teacher on part time basis or in other words there are only a few hours of teaching available which normally could be handled by a Guest Lecturer, then the petitioner shall be appointed to take classes as Guest Lecturer. In other words, if there are not sixteen periods justifying the appointment of a full time Lecturer, the petitioner can be engaged as a part time teacher. If there are not regular periods available on all days, though W.P.(C)No.36335/10 -5- below 18, justifying the engagement of a part time teacher, the petitioner shall be engaged as Guest Lecturer as and when vacancies are available and the pro rata salary shall be released to her. Needless to say, as and when regular vacancies arise in future, the persons appointed as above from the present rank list shall be preferred for appointment on regular basis according to their seniority.” 11. Therefore, the said judgment is binding on both parties. It is evident from the judgment itself that if there are no 16 periods justifying the appointment of a full time Lecturer, the petitioner can be appointed as a Part Time Lecturer and if there are no sufficient periods available for appointment on Part Time basis, the petitioner can be appointed as a Guest Lecturer. 12. With regard to these aspects, the pleas made by the University in their counter affidavit are relevant. It is averred in paragraph No.3 that out of the two vacant posts in Chemistry, one post at School of Engineering was filled on 12.7.2002 by appointing one Smt.Nalini Chakravarti who is ranked first. It is further pointed out that there were no sufficient teaching hours necessitating for the appointment of a regular faculty in the subject of Chemistry at Cochin University College of Engineering, W.P.(C)No.36335/10 -6- Kuttanad and no requirement from the Principal was also received. It is further explained that after Exhibit P3 judgment was rendered by this Court, the University had asked the then Special Officer of Cochin University College of Engineering, Kuttanadu to furnish the number of hours/periods per week in the concerned subject and it was reported that there exists only 10 periods/hours per week in Chemistry in the said College. Thus the petitioner was got first appointment as Guest Lecturer in the University from 18.7.2003 and later as Part Time Lecturer from 12.1.2004. Later, when her representation dated 2.8.2004 was received, the matter was examined by the Standing Committee of the Syndicate on Staff and Establishment and they recommended that the petitioner could be appointed as Lecturer with effect from the date on which she was appointed as Part Time Lecturer in the University and accordingly she was appointed on a full time basis. 13. In paragraph No.9 it is further pointed out that the appointment of regular faculty in any subject in a Division/Department from a rank list is generally done in accordance with the existing requirement reported by the W.P.(C)No.36335/10 -7- concerned Head/Principal of the Department/Institution then and there and as such appointment is made from the valid rank list in force then. In the case of the petitioner, there were not required teaching hours necessitating for the appointment of a regular faculty in the concerned subject in the first phase of appointment. As per AICTE norms governing appointment of a regular faculty in any subject, there should be at least 16 hours per week in the concerned subject. But in the case of the subject Chemistry, there existed only 10 hours per week. As far as the appointments of other teachers in various subjects/divisions are concerned, their appointments are based on the work load and the number of hours in that subject/Division. Moreover the concerned Principal had not made any requirement for appointing a permanent faculty in the subject to which the petitioner was ranked. 14. Evidently, therefore 16 hours per week was required for appointing a Full Time Lecturer. But, there existed only 10 hours a week. Therefore, the learned counsel for the petitioner is not justified in submitting that the petitioner should have been appointed from 8.3.2001 itself. The present complaint does not W.P.(C)No.36335/10 -8- have any merit in the light of the fact that the appointment was made by the University in terms of the direction issued in Exhibit P3 judgment wherein a direction was issued that the petitioner can be appointed on full time basis only if 16 hours per week are available. As the University has clearly stated that sufficient number of periods were not available, the claim that the petitioner should have been appointed at least from the date on which the first rank holder was appointed cannot be accepted at all. 15. The learned counsel for the petitioner further submitted that in other Departments, appointments were made and therefore the petitioner should be treated on a par with the Lecturers in other Departments. At any rate, the same cannot be taken as a yardstick, since it depends upon the number of periods available in Chemistry. Evidently, in the College in Kuttanad, such number of hours were not available. 16. Therefore the decision relied upon by the petitioner of the Apex Court cannot be of any help. This is not a case where there was a refusal on the part of the Cochin University to confer the appointment and for any reason it cannot be termed as mala W.P.(C)No.36335/10 -9- fide or arbitrary. In that view of the matter, the Writ Petition fails and the same is dismissed. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. dsn