IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 WP(C).No. 22834 of 2009(Y) --------------------------------------- PETITIONER(S): ----------------------- P.M. REMA, PRINCIPAL SREE VIVEKANANDA COLLEGE, KIZHOOR, KUNNAMKULAM, THRISSUR DISTRICT. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, SRI.PETER JOSE CHRISTO, SRI.S.A.ANAND, SRI.RAMESH. C.R. RESPONDENT(S): -------------------------- 1. UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY P.O., PIN- 673 635. 2. THE VICE CHANCELLOR UNIVERSITY OF CALICUT CALICUT UNIVERSITY P.O., PIN -673 635. 3. COCHIN DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, OFFICE OF THE COCHIN DEVASWOM BOARD THRISSUR, PIN- 680 001. R1 & R2 BY ADV. SRI.SANTHOSH MATHEW, SC. R3 BY ADV. SRI.N. REGHURAJ, SC, COCHIN DEVASWOM BOARD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2011, ALONG WITH WPC NO. 30020 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 22834 of 2009(Y) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.H2168/02 DATED 28/06/2008 OF THE SECRETARY OF THE BOARD. EXT.P2: COPY OF THE CIRCULAR NO.G1.388/08 DATED 09/07/2008 OF THE PRINCIPAL, SREE KERALA VARMA COLLEGE. EXT.P3: COPY OF THE APPENDED LIST OF TEACHERS. EXT.P4: COPY OF THE CIRCULAR NO.C2.95/06 DATED 11/07/2008 OF THE PRINCIPAL OF SREE VIVEKANANDA COLLEGE. EXT.P5: COPY OF THE ORDER NO.H.2168/02 DATED 28/10/2008 OF THE SECRETARY, COCHIN DEVASWOM BOARD. EXT.P6: COPY OF THE CHARGE REPORT NO.C2/212/08 DATED 29/10/2008. EXT.P7: COPY OF THE LETTER NO.H.2168/02 DATED 01/01/2009 WITHOUT ITS ENCLOSURES. EXT.P8: COPY OF THE EXPLANATORY NOTE ATTACHED TO THE PROFORMA ENCLOSED ALONG WITH EXT.P7. EXT.P9: COPY OF THE CERTIFICATE TO THE EFFECT THAT THE PETITIONER IS THE SENIOR MOST LECTURER IN THE COLLEGE AMONG THE TEACHERS WHO HAD APPLIED FOR THE POST OF PRINCIPAL IN THE COLLEGE UNDER THE CORPORATE MANAGEMENT OF COCHIN DEVASWOM BOARD. EXT.P10: COPY OF THE JUDGMENT IN WP(C) NO. 31866/08-R OF THIS HONOURABLE COURT DATED 30/10/2008. EXT.P11: COPY OF THE LETTER NO.GAII/C3/079/2009 DATED 20/03/2009 OF THE REGISTRAR, CALICUT UNIVERSITY. EXT.P12: COPY OF THE LETTER NO.H.2168/02 DATED 24/03/2009 OF THE SECRETARY, COCHIN DEVASWOM BOARD. EXT.P13: COPY OF THE LETTER DATED 24/03/2009 WRITTEN BY THE PETITIONER IN REPLY TO EXT.P11. EXT.P14: COPY OF THE LETTER NO.GAII/C3/079/2009 DATED 13/05/2009 OF THE REGISTRAR, CALICUT UNIVERSITY, ADDRESSED TO THE MANAGER OF THE COLLEGE. EXT.P15: COPY OF THE LETTER NO.H.6605/09 DATED 26/05/2009 OF THE SECRETARY, COCHIN DEVASWOM BOARD. (P.T.O.) WP(C).No. 22834 of 2009(Y) EXT.P16: COPY OF THE ORDER NO.GAII/F3/1671/06 DATED 29/12/2007 OF THE REGISTRAR, UNIVERSITY OF CALICUT. EXT.P17: COPY OF THE LETTER NO.GAII/C3/079/2009 DATED 15/09/2010 OF REGISTRAR OF THE FIRST RESPONDENT. EXT.P18: COPY OF THE MINUTES OF THE MEETING OF THE STANDING COMMITTEE ON STAFF OF AFFILIATED COLLEGES HELD ON 12/08/2010. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE rs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.22834/2009-Y & 30020/2010-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of July, 2011. JUDGMENT In both these writ petitions, a common question arises for consideration, i.e. with regard to the refusal of the first respondent University to approve the appointment of the petitioner in W.P.(C) No.22834/2009 as Principal. 2. W.P.(C) No.30020/2010 is filed by the Cochin Devaswom Board who is managing the College. The Cochin Devaswom Board has two Colleges, viz. Sree Vivekananda College, Kunnamkulam and Sree Kerala Varma College, Thrissur. For convenience, I will refer to the pleadings in W.P.(C) No.22834/2009. 2. By Ext.P1, the Management sought for willingness of the Teachers to function as Principal. Ext.P2 is the consequent circular issued by the Principal and Ext.P3 is the copy of the list of teachers, appended to Ext.P2. Accordingly, after completing the formalities, the petitioner was appointed as per Ext.P5 order dated 28.10.2008 as Principal. It appears that earlier one Shri K. Jayanarayanan was appointed as Principal, which was cancelled by the University Appellate Tribunal. wpc 22834/09 & 30020/2010 2 3. After the appointment of the petitioner also, Shri Jayanarayanan filed W.P.(C) No.31866/2008 challenging the appointment of the petitioner as Principal and this Court in Ext.P10 judgment, upheld the same on finding that the petitioner is the seniormost among the candidates considered. Thereafter, the University processed the application for approval and finally by Exts.P17 and P18 the decision of the University was communicated to the Manager of the College. Therein, the stand taken is that since the appointment of the Principal is by way of promotion on the basis of seniority-cum-fitness and as there is nothing to show that the petitioner is the seniormost teacher, her appointment is violative of Section 57(3) of the University Act. 4. Heard learned counsel for the petitioners, learned Standing Counsel for the University and learned Standing Counsel for the Cochin Devaswom Board. 5. Learned counsel for the petitioner in W.P.(C) No.22834/2009 submitted that the only procedure evolved by the Management was to seek willingness of the Teachers. The petitioner was the seniormost from among the teachers who have expressed their willingness. It is further pointed out that in the light of Ext.P10 judgment of this Court wherein the appointment wpc 22834/09 & 30020/2010 3 of the petitioner was the subject matter of challenge, which was repelled by this Court, the stand taken by the University cannot be accepted. 6. Learned Standing Counsel for the University submitted that the appointment is made on the principle of seniority-cum-fitness and therefore the Management was bound to produce evidence to show that the claims of seniority of all the teachers were considered, as the seniormost and fit person should be appointed. In the light of the declaration made in Ext.P10 judgment with regard to the appointment of the petitioner, wherein the University itself was the second respondent, evidently at this stage it need not be examined whether further procedures had to be completed by the Management. In para 5 of the said judgment, this Court found that the Principal has to be appointed by promotion and the seniority-cum-fitness which is the method to be followed. Finally, the following findings were rendered: “If that rule is to be applied among the fit candidates, who have applied in response to the notification, promotion should be effected based on seniority. In this case, admittedly, the 7th respondent who is resolved to be promoted, is the seniormost applicant. If that be so, the decision of the 1st respondent to promote the 7th respondent cannot be faulted.” wpc 22834/09 & 30020/2010 4 Therefore, there is a declaration in favour of the 7th respondent therein (petitioner herein). Therefore, the controversy, if any, with regard to the appointment of the petitioner cannot survive after the said judgment was rendered which has become final also. 7. In that view of the matter, the stand of the University that there must be further evidence to show that the claims of all the teachers were considered and they had formally relinquished their claim, cannot be accepted. Of course, in a case where different circumstances arise, the University can insist for the same from the Management concerned. But as far as this case is concerned, learned counsel for the Management submitted that even as on today, there is no such procedure prescribed by the University. This Court need not go into such question in the light of the fact that petitioner's appointment has already been upheld by this Court. 8. The writ petitions are thus allowed. The impugned orders, viz. Exts.P17 and Ext.P18 (Exts.P13 and P14 in W.P.(C) No.30020/2010) to the extent to which the approval of the appointment of petitioner is declined, are quashed. 9. The petitioner in W.P.(C) No.22834/2009 was continuing as Principal pursuant to the appointment order issued and she has retired from wpc 22834/09 & 30020/2010 5 service on 31.3.2011. Therefore, the University will pass appropriate orders approving the appointment as Principal, for enabling her to draw arrears of salary and based on the same the pension and other retirement benefits of the petitioner will be quantified and amounts will be released also. The University will pass orders as above, within a period of eight weeks from today. No costs. (T.R. Ramachandran Nair, Judge.) kav/