IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 WA.No. 902 of 2011() -------------------- AGAINST THE JUDGMENT DT.15.6.2011 IN W.P.(C) no.23570/2010 ---------------------------- APPELLANT/PETITIONER ------------------- CIBUMOL.B.BABU, D/O. V.K.BALAN, J.C. COTTAGE, CRS-67, LIC LANE, PONGUMMOOD, MEDICAL COLLEGE.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENTS/RESPONDENTS: --------------- 1. THE NATIONAL INSTITUTE OF TECHNOLOGY CALICUT, N.I.T. CAMPUS.P.O., CALICUT, KERALA, REPRESENTED BY ITS DIRECTOR. 2. ST. JOSEPH'S COLLEGE OF ENGINEERING TECHNOLOGY, PALAI, REPRESENTED BY ITS PRINCIPAL. (NAME OF THE WND RESPONDENT IS CORRECTED AS ABOVE AS PER ORDER DATED 29-7-2010 IN I.A. NO.1055/2010) SRI.MILLU DANDAPANI FOR NIT SRI.BABY ISSAC ILLIKAL. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2011, THE COURT ON 28/7/2011 DELIVERED THE FOLLOWING: “CR” C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. ----------------------------- W.A.No.902 OF 2011 ----------------------------- Dated this the 28th day of July, 2011 J U D G M E N T ~~~~~~~~~~~ C.N.Ramachandran Nair, J. The appellant with B.Tech Degree was appointed as a Lecturer in June 2008 in the 2nd respondent's Engineering College. The appellant and two other Lecturers were sponsored by the 2nd respondent College for joining the M.Tech course in the 1st respondent College. All the three persons so sponsored by the 2nd respondent were given admission by the 1st respondent for the M.Tech course 2010-2012. As of now, the appellant has completed one year of the M.Tech course in Power Systems in the Department of Electrical Engineering of the 1st respondent Institute at Kozhikode. The 2nd respondent's case is that under the norms of the management only two persons could be sponsored at a time for post graduate studies and appellant was sponsored specifically on condition that if the other two sponsored candidates secure admission, the appellant W.A.No.902/2011 2 will not join the M.Tech course even if she gets admission but will return and join the College to continue as Lecturer. The 2nd respondent had taken a written undertaking from the appellant in this behalf. It so happened that all the three candidates sponsored by the 2nd respondent including the appellant got admission and all were admitted by the 1st respondent. However, it is a requirement of the 1st respondent to get relieving orders from Lecturers joining for M.Tech course and when the 1st respondent requested the appellant to produce the same, the appellant failed to do so because the 2nd respondent refused to issue relieving order. Further the 2nd respondent took the view that the appellant has committed breach of undertaking given to the College and therefore they issued notice to appellant and terminated her from service as a Lecturer in the College. Once appellant is removed from service, production of relieving order from the College is out of question. Therefore, the 1st respondent proposed to remove the appellant from continuing her studies. Faced with this situation, the appellant approached this Court with Writ Petition praying for a direction to the 1st respondent to W.A.No.902/2011 3 allow her to continue her studies in the M.Tech course. Under interim orders passed during the pendency of the Writ Petition the appellant was allowed to continue and she has now completed the 1st year of the M.Tech course, which is a two year course. The learned Single Judge found that so long as the 2nd respondent does not continuously sponsor the appellant by issuing relieving order, the appellant is not entitled to continue the studies in the M.Tech course and accordingly the decision of the 1st respondent to terminate the appellant from continuing the course study was upheld by the Single Judge. It is against this judgment, the appellant has come up in appeal before us. 2. We have heard the learned counsel for the appellant, senior counsel appearing for the 1st respondent and standing counsel appearing for the 2nd respondent. 3. After hearing both sides and after going through the records, what we notice is that the appellant was initially sponsored by the 2nd respondent College for admission to the M.Tech course with the 1st respondent. She participated in the W.A.No.902/2011 4 entrance examination and came out successfully and was admitted to the M.Tech course in Power System in the beginning of the academic year 2010. But the 2nd respondent's case is that they have sponsored the appellant on the specific condition that she will return and join the College as a Lecturer without joining for the M.Tech course, if the other two candidates sponsored from the very same College get admission and join M.Tech course. The appellant's case is that R2(b) is an undertaking obtained by the 2nd respondent from the appellant only later and not when she was sponsored. However, we do not think there is any need for us to consider the controversy as to whether there is a breach of undertaking by the appellant against the 2nd respondent, because the 2nd respondent has punished the appellant by terminating her, who had served the College as a Lecturer for two years. In other words, the appellant was punished by the management for the breach of undertaking given to it and the decision so taken by the Management is not under challenge either before the Single Judge or before us. Therefore, the only question to be considered is whether the breach if at all committed by the appellant with her employer W.A.No.902/2011 5 which lead to her termination as a Lecturer with the 2nd respondent would disentitle her to continue 2nd year studies in M.Tech course. Admittedly, under interim orders this Court allowed the appellant to continue her studies in the M.Tech course during 2010-2011 and she has completed 1st year of studies and is left with one more year to complete the course study to write the examination and take degree. 4. The contention raised by the learned senior counsel for the 1st respondent is that the appellant was given admission under the quota reserved for Lecturers sponsored by Colleges wherein it is a mandatory condition that such candidate should obtain a relieving order from the management. In fact, under the scheme of admission to post graduate courses to sponsored candidates, the candidates are entitled to full pay and allowances from the Colleges where from they are sponsored. In other words, the employment is retained with the same management and the improvement in the educational qualification of the Lecturer, which is acquisition of Post Graduate Degree, will go to the benefit of the management which has sponsored the W.A.No.902/2011 6 candidate and for which the management continuously makes payment of salary and allowances during the period of study of the candidate. In the case of the appellant, on account of the alleged breach of undertaking the management terminated her from service and therefore, unlike the other two candidates who joined along with appellant for M.Tech course, the appellant is not entitled to any salary during the post graduate study she is undergoing and she cannot get relieving order also. We asked a specific question to the learned senior counsel appearing for the 1st respondent as to whether more than two candidates can be admitted for post graduate studies under the sponsored quota from the very same College. The counsel, however, does not point out any such bar against admission of three Lecturers from the very same College for post graduate course. Admittedly, if the 2nd respondent instead of terminating appellant allowed three Lecturers to continue M.Tech course under sponsored scheme and issued the relieving order, she could have continued her studies under the 1st respondent. Therefore, obviously there is no restriction that more than two candidates cannot be admitted from the very same College under the sponsored quota W.A.No.902/2011 7 for post graduate courses under the 1st respondent. Therefore, what affects the continuation of studies of the appellant for the M.Tech course is the violation of the norm of the 2nd respondent College where from they do not sponsor more than two candidates at a time for post graduate studies. Counsel for the 2nd respondent submitted that the management is entitled to have this restriction because they cannot spare more than two Lecturers at a time for higher studies on payment of salary and allowances. The 2nd respondent has ensured compliance of this norm by terminating the appellant from service and by retaining the other two in service who are paid salary and allowances during the two years M.Tech course they are undergoing with 1st respondent. 5. The question to be considered is whether the 1st respondent will be justified in removing the appellant from continuing her studies in 2nd year M.Tech course. According to the learned senior counsel appearing for the 1st respondent, unless the relieving order is issued by the 2nd respondent, the 1st respondent cannot treat the appellant as a sponsored candidate W.A.No.902/2011 8 which is required for her continuous studies. Admittedly, admission is given to the appellant as a sponsored candidate in the categories of Lecturers based on the authorisation issued by the 2nd respondent. There is nothing to indicate that the letter of sponsorship issued by the 2nd respondent was conditional for granting admission to the appellant. On the other hand, the misunderstanding or the breach of understanding between the appellant and the 2nd respondent happened after the appellant joined the 1st respondent College for the M.Tech course. The counsel for the appellant contended that the 1st respondent is asking for the impossible because after the appellant is terminated from service by 2nd respondent she cannot be expected to get a relieving order. The appellant's case is that she got admission through selection process after being sponsored for admission. Termination of her service subsequently should not affect her career is her case. 6. After considering the contentions raised by all concerned, we are of the view that the appellant is entitled to succeed for more than one reason. In the first place, she got W.A.No.902/2011 9 admission as a sponsored candidate in a selection process and has undergone the first year M.Tech course study under the interim orders issued by this Court. A sponsored candidate can be expected to produce relieving order only when she is allowed to continue in service. When the appellant is terminated from service, the 1st respondent cannot insist on a relieving order to be produced by her. We do not think it is fair or reasonable on the part of the 1st respondent to remove students undergoing Post Graduate study half way through merely because disciplinary proceedings is taken by the management leading to termination of the service of the candidate. If the course adopted by the 1st respondent that is termination of the appellant from her studies is upheld by us, certainly the same will not go to the benefit of the 1st respondent because they cannot admit a student in the 2nd year M.Tech course in the vacancy arising on termination of the appellant. The appellant is already punished by the management for the breach of undertaking by dismissing the appellant from service of the 2nd respondent. As of now the two other candidates sponsored by the 2nd respondent are continuing their M.Tech course by receiving pay and allowances W.A.No.902/2011 10 from the 2nd respondent while the appellant remains terminated from service. We do not think the appellant's termination from service after her admission for M.Tech course will entitle the 1st respondent to remove her from the course study to which she got admission as a sponsored candidate. The 1st respondent cannot call upon the appellant to produce the relieving order after she is terminated from service. So long as she got admission under the quota reserved for sponsored candidates by undergoing a selection process, she is entitled to continue her studies, no matter whether she remains in service or not. We also feel the 1st respondent's approach is destructive because by terminating the appellant from continuing the 2nd year M.Tech course the 1st respondent can only destroy her career but cannot admit another candidate in the 2nd year of the M.Tech course in the vacancy arising on the termination of the appellant. Having regard to the punishment already suffered by the appellant, we feel the denial of opportunity to continue and complete her studies in the 2nd year M.Tech course is a further punishment which she does not deserve. We are of the view that the 2nd respondent should keep in mind the ground realities faced by 80+ Engineering Colleges W.A.No.902/2011 11 in the State facing acute scarcity for qualified teaching faculty with M.Tech Degree. Whatever be the breach committed by the Appellant, the 2nd respondent should realise that the acquisition of M.Tech degree by Appellant will help at least another Management to find a suitable hand to be appointed as Lecturer after another year. We, therefore, do not find any substance in the objection raised by the 2nd respondent in the continuation of the appellant in the 2nd year M.Tech course. For the forgoing reasons, we allow the W.A. by vacating judgment of the learned Single Judge and direct the 1st respondent to allow the appellant to continue her 2nd year M.Tech course without production of relieving order from the 2nd respondent, which the appellant obviously cannot obtain after termination of her service. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) ps