IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 WP(C).No. 2260 of 2009(R) ----------------------------------------- PETITIONER(S): ------------------------- GILROY ROZARIO, LECTURER, ST.ALBERTS COLLEGE, RESIDING AT NAMBIA PARAMBU, KOMBARA, ERNAKULAM. BY ADV. MR.DINESH R.SHENOY RESPONDENT(S): --------------------------- 1. THE REGISTRAR, MAHATMA GANDHI UNIVERSITY ,KOTTAYAM. 2. THE MANAGER, ST.ALBERTS COLLEGE, ERNAKULAM. R1 BY ADV. MR. T.A. SHAJI, SC, M.G. UTY R2 BY ADV. MR.P.GEORGE WILLIAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON 30/11/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.2260/2009 R APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF APPOINTMENT ORDER DTD. 10/08/1990 ISSUED BY THE 2ND RESPONDENT. P2: COPY OF THE APPOINTMENT ORDER DTD. 10/01/1996 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF CIRCULAR NO.2738/B II-I/ACAD./95 DTD. 23/12/1996 ISSUED BY THE 1ST RESPONDENT. P4: COPY OF APPOINTMENT ORDER DTD. 17/02/1997 ISSUED BY THE 2ND RESPONDENT. P5: COPY OF LETTER NO.Ac.B IV-1-4247/88 DTD. 18/06/1996. P6: COPY OF LETTER DTD. 17/11/2000 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT. P7: COPY OF LETTER DTD. 18/03/2003 SENT BY THE PETITIONER. P8: COPY OF THE REPRESENTATION DTD. 15/12/2003 SUBMITTED BY THE PETITIONER BEFORE RESPONDENTS 1 AND 2. P9: COPY OF JUDGMENT DTD. 23/12/2003 IN WPC.NO.40573/2003, HIGH COURT OF KERALA. P10: COPY OF THE LETTER DTD. 31/12/2003 ISSUED TO THE 1ST RESPONDENT. P11: COPY OF LETTER DTD. 4/04/2005 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. P12: COPY OF THE REMINDER LETTER ISSUED BY THE PETITIONER DTD. 7/02/2006. P13: COPY OF THE JUDGMENT IN C.C.C.NO.331/2008 HIGH COURT OF KERALA. P14: COPY OF THE LETTER DTD. 25/03/2009 ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. KSS ..2/- ...2...... WPC.NO.2260/2009 R P15: COPY OF RECEIPT DTD. NIL SIGNED BY SHRI.A.A.YESUDAS FOR THE PERIOD APRIL - MAY 1996. P16: COPY OF LETTER DTD. 18/01/1997 SUBMITTED BY ME BEFORE THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. P17: COPY OF THE ORDER DTD. 6/01/1994 ISSUED BY MAHATMA GANDHI UNIVERSITY IN RESPECT OF TEACHERS APPOINTED IN THE DEPUTATION VACANCY OF SHRI.F.M.MANUAL IN THE MATHS DEPARTMENT. P18: COPY OF G.O.(RT) NO.1790/92/H.EDN. DTD. 20/11/1992 ISSUED BY THE DEPUTY SECRETARY TO GOVERNMENT. RESPONDENT'S EXHIBITS: R2-1: COPY OF THE LETTER NO.AC.B2/440/87 VOL-II DTD. 5/05/2008 BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. R2-2: COPY OF REPLY DTD. 24/05/2008 BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. R2-3: COPY OF TRANSFER ORDER DTD. 28/02/2004. R2-4: COPY OF COMMUNICATION NO.AC B11/440/87/VOL II DTD. 25/03/2009 BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. R2-5: COPY OF COMMUNICATION NO.AC B-II/440/87/PART II DTD. 20/02/2004 BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT. R2-6: COPY OF REPLY DTD. 2/04/2009 BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. R2-7: COPY OF THE G.O.(RT) NO.177/99/H.EDN. DEPARTMENT DTD.15/02/1999. R2-8: COPY OF THE DECLARATION DTD. 07/10/1997. R2-9: COPY OF COMMUNICATION NO.80869/95 DTD. 03/05/1996. R2-10: COPY OF LETTER NO.GL/D/657/97 DTD. 08/10/1997. /TRUE COPY/ P.S.TO JUDGE KSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.2260 of 2009-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of November, 2009. JUDGMENT The petitioner is aggrieved by the denial of his right to be shifted to the substantive vacancy which arose in the college under the management of the second respondent with effect from 1.4.1996. 2. The question arises within a narrow compass. The petitioner had different spells of appointment in the college before he was regularly appointed in a substantive vacancy. He was first appointed as a Lecturer in Commerce on a temporary basis in the Department of Commerce in St. Albert’s College, Ernakulam in the leave vacancy of Shri Paul Cornalius who was granted leave on the basis of F.I.P. Programme for the period from 8.8.1990 to 7.8.1991. This appointment was granted as per Ext.P1 order. Thereafter, as per Ext.P2 order dated 10.1.1996, on the basis of his claim, he was again appointed as Lecturer on a temporary basis in the Department of Commerce on the deputation vacancy of Prof. P.V. Raphel for the period from 10.1.1996 till 9.1.1997. 3. A substantive vacancy arose in the Department consequent on the promotion of Prof. Mathew J. Vaz as Principal of the college on 1.4.1996. wpc 2260/2009 2 Even though the petitioner was the eligible candidate at that point of time, appointment was delayed and finally he was appointed as per order dated 17.2.1997 with effect from the forenoon of 17.2.1997, as per Ext.P4 order. This resulted in a break in service to him. So far, the service from 10.1.1996 till 17.2.1997 has not been approved. 4. The petitioner had been agitating for the benefit of such an appointment, by filing representations before the University and before the management and since no worthwhile efforts were taken in the matter, he approached this Court by filing W.P.(C) No.40573/2003, wherein this Court directed the University to take a decision on Ext.P8 representation filed by him. By Ext.P14, the Registrar of the University informed the second respondent that the Standing Committee of the Syndicate on Affiliation, had resolved to reject the proposal, since the statutory appointment order in Form No.6 has not been submitted to the University by the educational agency, in spite of communication sent to produce the same. The absence of a valid order shifting the appointment of the petitioner with effect from 1.4.1996 to the substantive vacancy, has resulted in rejection of his claim. 5. The respondents have filed counter affidavits in the matter. 6. Heard Shri Dinesh R. Shenoy, learned counsel for the petitioner, Shri P. George William, learned counsel appearing for the second wpc 2260/2009 3 respondent and Shri T.A. Shaji, learned Standing Counsel for the University. 7. Learned counsel for the petitioner invited my attention to various documents produced by the petitioner to contend for the position that the petitioner has a valid claim for appointment in the substantive vacancy from 1.4.1996 and the said right cannot be denied at all. The inaction on the part of the management in not producing a shifting order in Form No.6 alone, is the reason for the decision reflected in Ext.P14. It is submitted that going by various documents produced herein, it will be evident that the management itself has no quarrel with the same and also have been requesting the University from time to time to grant approval for his appointment from 1.4.1996. It is therefore submitted that the petitioner is liable to be granted a declaration that he is entitled for a shifting from 1.4.1996 in a substantive vacancy, and a consequential direction should follow. 8. Learned counsel for the Management submitted that a reading of the writ petition will show that the petitioner was really campaigning for the position that actually there had been an appointment order from 1.4.1996 and therefore as the then Manager had not issued any such appointment order, at this stage, the University also cannot compel the wpc 2260/2009 4 Management to issue a fresh order in that regard. Learned Standing Counsel for the University submitted that without a valid order, the University cannot be found fault for not granting the benefit to the petitioner. 9. As regards the factual aspects and the claim of the petitioner is concerned, there is no dispute at all. The deputation vacancy was for the period from 10.1.1996 till 9.1.1997. Subsequently, a substantive vacancy arose. As regards the filling up of the deputation vacancies, it appears that there was a dispute whether it should be by appointment of a Guest Lecturer, but the said dispute was settled by Ext.P3 circular issued by the University itself stating that Guest Lecturers can be appointed if there are no claim holders and no select list exists for fresh appointment. The petitioner being a claim holder, was therefore appointed in the deputation vacancy as per Ext.P4, in the light of the earlier stint of appointment. 10. A reference to various documents is therefore necessary, to understand the position. There occurred some delay in the matter of appointment of the petitioner in the substantive vacancy, as the issuance of Govt. Order sanctioning deputation in respect of Prof. P.V. Raphel was delayed. By Ext.P5, the Registrar of the University informed the management to produce the said order. Ext.P6 is the representation wpc 2260/2009 5 submitted by the petitioner to the Principal of the College to send his proposal of Lecturer with the deputation vacancy of Prof. P.V. Raphel from 1.1.1996 and shift to the substantive vacancy of Prof. Mathew J. Vaz from 1.4.1996 to 17.2.1997, so as to ensure that he do not suffer from a break in service for the aforesaid period. Ext.P7 is the further representation submitted by him to the Manager of the College. Ext.P8 is the representation submitted to various authorities, viz. the Director of Collegiate Education, Registrar of the University and the Manager of the College. Therein, he seeks for a direction to the Principal to forward the Govt. Order sanctioning the deputation of Prof. P.V. Raphel to the University for granting approval of his appointment. He has also sought for an order that he should be shifted to the substantive vacancy with effect from 1.4.1996 till 17.2.1997, so that he will not suffer from break in service for the said period. 11. Herein, the stand taken by the Management is clear from Ext.P11 letter addressed to the Registrar of the University. Regarding the claim for shifting to the substantive vacancy, it is explained in the internal page 2 of Ext.P11 that the vacancy arose from 1.4.1996 when Shri Mathew J. Vaz was posted as Principal and finally the Manager has requested the University to examine the above aspect and consider the case of approval of continuation wpc 2260/2009 6 of appointment of the petitioner from 1.4.1996. 12. We may consider the documents produced along with the counter affidavit filed by the second respondent also. It is explained that the appointment of the petitioner in the substantive vacancy from 1.4.1996 has already been approved by the University. As per Ext.R2(1), the University requested the management to forward formal appointment order in Form No.6, if any, issued to the petitioner at the time of shifting to the substantive vacancy on 1.4.1996, to consider the proposal. Accordingly, the Management forwarded Ext.R2(2) accompanied by Ext.R2(3) transfer order whereby the petitioner is shifted as Lecturer from 1.4.1996 to the permanent vacancy caused due to the promotion of Shri Mathew J. Vaz. The stand taken in the counter affidavit is that there is no appointment order on 1.4.1996. It is also explained that Ext.R2(2) shifting order was issued in pursuance to the communication issued by the University as per Ext.R2(5). A reading of Ext.R2(5) shows that the University directed the Management to examine the petitioner's claim to the substantive vacancy caused by promoting Prof. Mathew J. Vaz with effect from 1.4.1996 and to forward the proposal for approval of his appointment in this vacancy with effect from 1.4.1996, subject to his eligibility for the same. 13. Thus, the stand of the Management is that the transfer order wpc 2260/2009 7 Ext.R2(3) itself will be sufficient whereas the University has directed the Management to forward an appointment order itself going by Ext.R2(5). Herein, a reference will have to be made to the documents produced by the petitioner along with the reply affidavit, wherein he has produced Exts.P17 and P18 to show that in similar cases, the Management has issued appointment orders in favour of similarly placed candidates. Ext.P17 is the order dated 6.1.1994 issued by the University in respect of teachers appointed in respect of deputation vacancy of Shri F.M. Manuel. It will be evident from Ext.P17 that initially, Shri Alex Mendez was appointed in the deputation vacancy till 30.3.1993 and thereafter Shri Edwin Thomson was shifted to the retirement vacancy of Shri V.A. Baby. It is accordingly contended by the learned counsel for the petitioner that there cannot be any legal hurdle in shifting the petitioner to the permanent vacancy which arose on 1.4.1996. The Management is only discriminating him in the matter. It is also stated that all those appointments have been approved by the University. 14. That the petitioner is entitled for a shifting from 1.4.1996 is beyond dispute. The said claim of the petitioner is agreed to by the Management and by the University. What remains is the forwarding of a proposal by the Management as required by the University in Ext.R2(5). In wpc 2260/2009 8 fact, going by Ext.R2(5), the University required the management to “forward a proposal for approval of his appointment in this vacancy with effect from 1.4.1996”. Therefore, nothing precludes the Management from forwarding a fresh proposal in the matter in Form No.6, as required by the University in Ext.P14 also. When the legal right of the petitioner is not disputed, technicalities in the matter cannot deprive the petitioner the right to get the eligible benefits. It is well settled that technical pleas cannot deny the claim of a person to enforce his statutory rights. 15. Herein, the main apprehension expressed by the learned counsel for the Management is that if a fresh appointment order is issued in Form No.6, that may affect the grant of deputation to Shri P.V. Raphel. There is no basis for the said apprehension. The Government has already granted order sanctioning deputation of Shri P.V. Raphel. Even if the petitioner is given a shifting with effect from 1.4.1996, that will not affect anybody. 16. The petitioner is therefore well founded in his submission that as done in the case of the appointees under Exts.P17 and P18, the petitioner is also entitled for shifting his appointment to the substantive vacancy with effect from 1.4.1996. It is therefore declared that the petitioner was entitled to be shifted to the substantive vacancy that arose on account of the promotion of Shri Mthew J. Vaz on 1.4.1996 and that he is entitled for all wpc 2260/2009 9 consequential benefits also. There will be a direction to the second respondent to forward statutory appointment order in Form No.6 to the University as required in Ext.R2(5) and as observed in Ext.P14, within a period of one month from the date of receipt of a copy of this judgment. There will be a direction to the University to consider the grant of approval for shifting the petitioner to the permanent vacancy with effect from 1.4.1996, after getting appointment order in Form No.6 by the second respondent management. This shall be done within a period of two months from the date of receipt of appointment order as above. For enabling the University to pass appropriate orders, Ext.P14 is quashed. The writ petition is allowed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/