IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 WA.No. 1777 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.23364/2007 Dated 04/04/2008 .................... APPELLANTS: RESPONDENTS 1 TO 3 IN WPC: ---------------------------------------------------------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE JOINT DIRECTOR, REGIONAL DIRECTORATE OF TECHNICAL EDUCATION, KOTHAMANGALAM. BY SR. GOVERNMENT PLEADER SRI. BENNY GERVACIS RESPONDENTS: PETITIONER & RESPONDENTS 4 & 5 IN THE W.P.: -------------------------------------------------------------------------------------------------- 1. SHINU SAKRIA, LECTURER, MCA DEPARTMENT, MAR ATHANASIUS COLLEGE OF ENGINEERING, KOTHAMANGALAM, RESIDING AT 'KOTTISSERIKUDIYIL' HOUSE, CHELAD.P.O, CHELAD, KOTHAMANGALAM. 2. MAHATHMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM REPRESENTED BY ITS REGISTRAR. 3. MAR ATHANASIUS COLLEGE OF ENGINEERING, KOTHAMANGALAM REPRESENTED BY ITS SECRETARY. ADV. SRI. JAJU BAU FOR R1 SRI. T.A.SHAJI, SC, M.G.UTY FOR R2 SRI.GEORGE JACOB (JOSE) FOR R3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B. KOSHY & THOMAS P.JOSEPH, JJ. ------------------------------------------------------------ W.A.NO: 1777 OF 2008 ----------------------------------------------------------- Dated this the 5th September2008. JUDGMENT Koshy, J. Writ petitioner was appointed as lecturer in MCA in fifth respondent-Engineering College. Two Assistant Professor's posts were vacant in the college. The existing lecturers were not qualified to be promoted and, therefore, Assistant Professor's post was not filled up. There was requirement of two more teachers in that department. In spite of several attempts no qualified persons submitted application for direct recruitment or promotion as Assistant Professors or Professors. In the absence of qualified candidates petitioner was appointed as lecturer. But he was not posted as Assistant Professor since he was not qualified to become Assistant Professor. The learned Single Judge found that the posts of Assistant Professors are lying vacant and in the absence of the teachers students will suffer. But, according to AICTE one more lecturer cannot be appointed but two Assistant Professors and one Professor can be appointed. Till a Lecturer is qualified, or by direct recruitment a candidate becomes available for the post of Assistant Professor, petitioner can continue as Lecturer. In these circumstances following direction was given by the learned Single Judge:- “ The Government shall give its no objection for appointment of the petitioner in any one of the post of W.A.1777/08 2 Assistant Professors lying vacant so that the 5th respondent can seek approval of their action with the support of that no objection. This shall be done within one month from the date of receipt of a copy of the judgment. On receipt of the same, the management shall address the AICTE detailing the circumstances seeking approval for their action. If the AICTE approved the same, the Government shall accord sanction and the University shall approve the appointment of the petitioner in accordance with the approval of the AICTE. I make it clear that if any other qualified hands become available, either by promotion from Lecturer or by direct recruitment, the petitioner shall either be terminated from service or if there is a vacant post of Lecturer available, adjust him against that post.” 2. We are of the view that on the facts and circumstances of the case it is the most practical direction given by the Learned Judge, using the discretionary power under Art. 226 of the Constitution of India which cannot be interfered in a writ appeal. We make it clear that it was given in the facts and circumstances of the case in question and in this particular situation only. Writ appeal is dismissed. J.B.KOSHY Judge THOMAS P. JOSEPH Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: