IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 31ST OCTOBER 2008 / 9TH KARTHIKA 1930 WP(C).No. 26655 of 2008(W) -------------------------- PETITIONER(S): --------------- S.VICRAMAN, AGED 52 YEARS, S/O. K.N.SANKARAN, SENIOR LECTURER IN VEDANTHA CALICUT ADARSHA SANSKRIT VIDYAPEETHA, P.O.BALUSSERY,KOZHIKODE 673 612. BY ADV. SRI.N.JAMES KOSHY RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HUMAN RESORCES DEVELOPMENT., GOVERNMENT OF INDIA, NEW DELHI. 2. RASHTRIYA SANSKRIT SANSTHAN DEEMED UNIVERSITY ,REPRESENTED BY ITS REGISTRAR (ESTABLISHED UNDER THE MINISTRY OF HUMAN RESOURCE DEVELOPMENT, GOVERNMENT OF INDIA, (56-57)INSTITUTIONAL AREA, JANAKAPURI, NEW DELHI 110058 3. CALICUT ADARSH SANSKRIT VIDYAPEETHA P.O.BALUSSERY, CALICUT 673 612 REPRESENTED BY ITS PRINCIPAL. 4. DR.E.PRAKASH LECTURER, SAHITYA, CALICUT ADARSH SANSKRIT VIDYAPEETHA P.O.BALUSSERY, CALICUT 673 612 WP(C).No. 26655 of 2008 5. PROF.RAVI SANKAR MENON CHAIRMAN, MANAGING, COMMITTEE OF CALICUT ADARSH SANSKRIT VIDYAPEETHA P.O.BALUSSERY, CALICUT 673 612 ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1 & 2 SRI.CHERIAN VARGHESE FOR R2 SRI.E.K.NANDAKUMAR FOR R3-4 SRI.A.K.JAYASANKAR NAMBIAR FOR R3-4 SRI.K.JOHN MATHAI FOR R3-4 SRI.P.BENNY THOMAS FOR R3-4 SRI.ANIL D. NAIR FOR R3-4 SRI.K.ANAND (A.201) FOR R5 SMT.LATHA KRISHNAN FOR R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26655 of 2008 PETITIONER'S EXHIBITS EXT.P1: COPY OF THE ORDER DTD 19/12/2007 ISSUED BY R2. EXT.P2: COPY OF THE ORDER DATED 26.8.2008 ISSUED BY R3. EXT.P3: COPY OF THE ORDER HANDING OVER THE CHARGE OF THE PRINCIPAL TO THE PETITIONER ON VARIOUS OCCASIONS. EXT.P4: COPY OF THE COMMUNICATION DTD 27.8.2008 ISSUED BY R3. EXT.P5: COPY OF THE COMMUNICATION DTD 29.8.2008 ISSUED BY 3. EXT.P6: COPY OF THE OFFICE ORDER DTD 13.2.1998 ISSUED BY R2. EXT.P7: COPY OF THE INTIMATION LETTER DTD 2.8.1983 BY R3. EXT.P8: COPY OF THE APPOINTMENT ORDER NO.CASV/226/87 DATED 2.3.1989 ISSUED BY R3. EXT.P9: COPY OF THE PETITION DTD 28.8.2008 SUBMITTED BY THE PETITIONER TO THE C.I. OF POLICE, BALUSSERY. EXT.P10; COPY OF THE LETTER DTD 28.8.2008 SENT BY THE PETITIONER TO R5. EXT.P11: COPY OF THE APPOINTEMNT ORDER DTD 18.8.1987 OF R4. EXT.P12: COPY OF THE PERFORMA FOR GRANT OF SELECTION GRADE SUBMTITED BY THE PRINCIPAL OF THE COLLEGE IN RESPECT OF THE PETITIONER AND THE 4TH ESPONDENT. EXT.P13: COPY OF THE JUDGMENT IN W.P.(C)NO.33891/2007 DATED 26.8.2008 OF THE HON'BLE HIGH COURT OF KERALA. EXT.P14: COPY OF THE MINUTES OF THE MEETING HELD ON 28.10.2003. WP(C).No. 26655 of 2008 4TH RESPONDENT'S EXHIBITS EXT.R4(a): COPY OF THE PROCEEDINGS DTD 20.11.2007 ISSUED BY R5. EXT.R4(b): COPY OF THE ORDER DATED 27.8.2008 ISSUED BY R5 TO R4. EXT.R4(c): COPY OF THE COMMUNICATION DTD 27.8.2008 ISSUED BY THE CHAIRMAN TO THE OFFICE ASSISTANT OF R3. EXT.R4(d): COPY OF THE COMMUNICATION DTD 4.9.2008 ISSUED BY THE CHAIRMAN TO THE OFFICE ASSISTANT OF R3. EXT.R4(e): COPY OF THE COMMUNICATION DTD 6.9.2008 SENT BY R5 TO THE PETITIONER. EXT.R4(f): COPY OF THE COMMUNICATION DTD 27.2.2001 SENT BY THE PRINCIPAL TO THIS RESPONDENT. EXT.R4(g): COPY OF THE SCHEME FOR FINANCIAL ASSISTANCE TO INSTITUTIONS RECOGNISED AS ADARSHA SANSKRIT MAHA VIDYALAYAS. EXT.R4(h): COPY OF THE U.G.C. NOTIFICATION DTD 24.12.1998. EXT.R4(i): COPY OF THE NOTIFICATION DATED 29.3.2008 PUBLISHED IN EMPLOYMENT NEWS. EXT.R4(j): COPY OF THE GOVERNMENT LETTER NO.5669/B2/91/H.EDN DATED 25.3.1991. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.26655 OF 2008 ---------------------------------------- Dated this the 31st day of October, 2008 JUDGMENT The petitioner claims to be the senior most Lecturer of the 3rd respondent – Calicut Adarsh Sanskrit VidyaPeetha, which is a College affiliated to the 2nd respondent – Rashtriya Sanskrit Sansthan, which is a deemed University. On 30.11.2007, the then Principal of the 3rd respondent was due to retire from service on attaining the age of 55 years. He filed W.P.(C)No.33891/2007 claiming that as per the UGC Scheme, he is entitled to continue till 60 years. This Court granted a stay of his retirement pending disposal of the writ petition. That writ petition was ultimately disposed of on 26.8.2008 rejecting the contentions of the former Principal. As a result, he was bound to retire on 26.8.2008. On 27.8.2008, he handed over charge of Principal to the petitioner herein, stating to be doing so as per directions in Ext.P1 communication of the 2nd respondent to the 5th respondent. Ext.P2 is the proceedings issued by the former Principal in this W.P.(c)No.26655/08 2 regard handing over charge to the petitioner. However, the 5th respondent by Ext.P4, directed the former Principal to hand over charge to the 4th respondent. Ext.P4 is under challenge before me. 2. The petitioner's contention is that in view of Ext.P1, the 5th respondent could not have validly directed handing over charge of the Principal to anybody other than the petitioner, since the petitioner was the senior most Lecturer in the 3rd respondent – Vidyapeetha. The petitioner would further submit that there is no reason for the 5th respondent to take a different course of action, in so far as earlier also when the Principal of the College was not in station or otherwise incapacitated to discharge duties of Principal, the petitioner was put in charge of the duties of the Principal as is evidenced by Ext.P3 series, which was never objected to by the 3rd or 5th respondents. The petitioner would contend that it is evident from the various documents produced in the writ petition that the petitioner was senior to the 4th respondent. He relies on Ext.P6 office order of the 2nd respondent in this regard, whereby the petitioner was given placement in the senior scale with effect from 3.3.1997, at which time the 4th respondent W.P.(c)No.26655/08 3 was not even considered for placement in the senior scale. According to the petitioner, the 4th respondent still continues in the scale of pay applicable to Lecturers namely, Rs.2200-4000 whereas the petitioner has been placed in the senior scale of Rs.3000-4000, which itself would go to show that the petitioner is senior to the 4th respondent. 3. The further contention raised by the petitioner is that the reasons given in the counter affidavit of the 5th respondent to prefer the 4th respondent to the petitioner, for putting in charge of the duties of the Principal, are not sustainable. The first reason mentioned by the 5th respondent is that the petitioner is not qualified to be considered for promotion as Principal. According to the petitioner, this is not correct. To prove this, he relies on Ext.P13 judgment of the Division Bench of this Court, in which the petitioner claims that this Court has accepted the fact that as far as service conditions of the teaching staff of the 3rd respondent are concerned, the very same rules applicable to employees working in the educational institutions in Kerala are applicable. He points out that as per Ext.P14, applicable to teaching staff of the Colleges in Kerala, the Principal's post is a W.P.(c)No.26655/08 4 promotion post from among Lecturers and the requirement of qualification of Ph.D has been dispensed with, prescribing instead the experience qualification of 25 years, which the petitioner possesses. Even otherwise for putting in charge of a post, it is not necessary that the person to be so put in charge should possess the qualifications prescribed for the post is the contention raised by the petitioner. 4. The contentions of the petitioner are stoutly opposed by respondents 4 and 5. They would submit that as far as the post of Principal is concerned, the qualification and method of appointment is as prescribed by the UGC, as per which Ph.D. Degree is a necessary qualification. The learned counsel for the 4th respondent would point out that as is clear from Ext.R4(g), respondents 2 and 4 are not empowered to relax the qualification prescribed by the UGC. They would further submit that the reliance by the petitioner on Ext.P13 judgment is misplaced in so far as that judgment does not pertain to qualifications and method of appointment of teaching staff or Principal and that the same relates only to pay scale and grade promotions and nothing else. According to them, it is the prerogative of the managing committee to W.P.(c)No.26655/08 5 decide as to who is to be put in charge of the duties of the Principal temporarily until regular appointment is made. The learned counsel for the 5th respondent would also rely on the decision of the Supreme Court in Ramakant Shripad Sinai Advalpalkar V. Union of India and others [AIR 1991 SC 1145] in support of his contention that for deciding as to who is to be put in charge, seniority is not a relevant criterion. The learned counsel for the 4th respondent has a further contention that the 4th respondent is in fact senior to the petitioner. He points out that he was appointed as a Junior Lecturer on 18.8.1987, whereas the petitioner was appointed as Lecturer only on 2.3.1989 as per Ext.P8. The contention is that although the petitioner was originally appointed as a Junior Lecturer, by Ext.R4(j), the Government clarified that after introduction of the UGC Scheme, there is no post of Junior Lecturer and those Junior Lecturers who were appointed as on 1.1.1986 or at a later date may be given placement and re-designation as lecturers after two years of service or on 1.7.1988 whichever is earlier. Therefore, according to the petitioner, the petitioner became a Lecturer on 18.8.1987 going by which date, the 4th respondent is senior to the W.P.(c)No.26655/08 6 petitioner. According to respondents 4 and 5, in the above circumstances, the action of the 5th respondent in putting the petitioner in charge of the duties of the Principal cannot be faulted on any of the grounds stated by the petitioner. The 2nd respondent's counsel while supporting the action of respondents 3 and 5, in the counter affidavit would submit that the 2nd respondent stands by Ext.P1. 5. I have considered the rival contentions in detail. 6. Although arguments have been advanced on the question as to the method of appointment and qualification required for regular appointment as a Principal, I am not inclined to go into that question because it is settled law that for putting a person in charge of a particular post, that person need not necessarily have the qualifications prescribed for the post, in so far as the same is only a temporary arrangement so as to ensure that there is no vacuum in the post on account of the former incumbent vacating the office. Therefore, I shall consider only the question as to whether the action of the 5th respondent in putting the 4th respondent in charge of Principal of the 3rd respondent institution is correct or not. W.P.(c)No.26655/08 7 7. Of course, the 5th respondent would strenuously argue that the action of the 5th respondent in giving charge of the Principal to the 4th respondent is not amenable to judicial review, especially in view of the Supreme Court decision referred to above. I am of opinion that the Supreme Court decision has not categorically held that the seniority need not be taken into account for the purpose of putting a person in charge of a post. That decision only held that it is not necessary that 'in charge' arrangement is not a recognition of or is necessarily based on seniority and that therefore no rights, equities or expectations could be built upon it. I am of opinion that in so far as the 3rd respondent being a pubic authority all their actions are liable to be tested on the anvil of Articles 14 and 16 of the Constitution of India. Therefore, I have to necessarily consider the question as to whether the action of the 5th respondent in putting the 4th respondent in charge of the post of the Principal is in conformity with the Articles 14 and 16 of the Constitution of India. 8. The 4th respondent has taken pains to convince me that he is senior to the petitioner in the post of Lecturer and therefore the petitioner cannot be held to be the senior-most W.P.(c)No.26655/08 8 Lecturer of the 3rd respondent. But I still stand unconvinced by the arguments of the 4th respondent. The 4th respondent does not dispute Ext.P6, whereby the petitioner has been given placement in the senior scale of Rs.3000-5000. As per the UGC Scheme, placement in the senior scale is after completion of a specific number of years of service in the lower scale of pay of Rs.2200-4000. The 4th respondent does not also dispute the fact that he has not been placed in the senior scale yet. He continues to be in the scale of pay of Rs.2200-4000. The 4th respondent would further submit that the Government representative in the managing committee of the 3rd respondent has been entrusted with the task of preparing seniority list of the employees of the 3rd respondent and therefore, it cannot be said that the seniority position is settled. Whatever that may be, in so far as the above said facts are not disputed before me, as on today, it cannot be disputed that the petitioner is in the senior scale and the 4th respondent is not. Therefore, the only natural conclusion possible is that the petitioner is senior to the 4th respondent at least as on today. W.P.(c)No.26655/08 9 9. The next question that arises for consideration is as to whether it is mandatory that the senior most lecturer should be given charge of the Principal. I need not ponder much about that question, since nobody disputes Ext.P1 and the authority of the 2nd respondent to issue Ext.P1. The 2nd respondent stands by Ext.P1. The 3rd and 5th respondents admit that they are bound by Ext.P1. By Ext.P1, the 5th respondent was directed to ensure taking over the charge of the Principal from the former Principal and handing over the same to the senior most Lecturer of the 3rd respondent. Therefore, going by Ext.P1, the 5th respondent was bound to put the senior most Lecturer in charge of the Principal. Of course, in appropriate cases where the senior most Lecturer is in any way unfit to be put in charge of the post of Principal, the 4th respondent may have a discretion to give charge of the post of Principal to somebody else for which seniority may not be an obstacle. But, in so far as the action has to be tested on the anvil of Articles 14 and 16 of the Constitution of India, the 5th respondent has to give a convincing reason for departing from the direction issued in Ext.P1. Although the 5th respondent has filed a counter affidavit, apart from the contention that the W.P.(c)No.26655/08 10 petitioner does not have the qualifications prescribed for the post of Principal and that as per the Supreme Court decision the seniority is not the criterion to put a person in charge of the duties of Principal, no other reason has even be mentioned. That being so, the 5th respondent does not have any justifiable reason to depart from the directions issued by Ext.P1. Ext.P1 being binding on the 5th respondent, the 5th respondent was bound to put the petitioner in charge of the post of the Principal, pending regular recruitment, since I have already found that as on today the petitioner is the senior most lecturer. That being so,the action of the 5th respondent is putting the 4th respondent in charge of the duties of the Principal is violative of Articles 14 and 16 of the Constitution of India. In the above circumstances, I am satisfied that the 5th respondent should be directed to comply with Ext.P1 and to put the petitioner in charge of the post of the Principal until regular appointment to the post of Principal is made. There would be a direction to the 5th respondent to that effect. This shall be done within one week from today. I make it clear that I have not finally pronounced on the question of inter se W.P.(c)No.26655/08 11 seniority between the petitioner and the 4th respondent and it would be open to the 4th respondent to agitate the same in appropriate Forum. However, that shall not stand in the way of the 5th respondent putting the petitioner in charge of the post of Principal as directed above. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.26655/08 12