Case: DR. JAGATHY RAJ V.P Vs. DR. RAJITHA KUMAR S. &amp; ORS

3. The relevant facts in brief culled out from the record are that both the appellant and respondent no. 1 are members of the teaching faculty and the appellant is senior to respondent no. 1 as the appellant became Professor in April 2009, whereas respondent no. 1 on 1st October, 2013. Even otherwise, the seniority of the appellant qua respondent no. 1 is not in dispute.4. In terms of Section 39(1) of the University Act, the Government of Kerala framed its Statute. That Statute 18 envisages the appointment of a Director/HOD. For appointment of the Director/HOD, the Syndicate shall nominate a teacher not below the rank of an Associate Professor with Ph.D or an equivalent post, as prescribed by UGC Regulations or Regulations based on seniority on a rotational basis for a period of three years. One Dr. Moli P. Koshy, the senior Professor in the School of Management was nominated by order dated 15th July, 2015 as HOD/Director of the School of Management Studies. He was relieved from the post of Director on attaining the age of superannuation with effect from 6th December, 2017. The appellant, who was the next senior most Professor in queue, was eligible to be nominated by rotation as HOD. However, vide communication dated 18th July 2017, the appellant expressed his unwillingness because of his pre- occupation in teaching and research. Taking into consideration the unwillingness expressed by the appellant at the given point of time, the next eligible Professor Dr. Mavoothu D. was nominated as Director/HOD by an Order dated 23rd November 2017 for a period of three years with effect from 7th December, 2017.5. Before the term of Dr. Mavoothu D. of three years was going to expire, the appellant showed his willingness at that stage to consider him for appointment as Director/HOD and communicated the same to the Registrar of the University vide letter dated 26th June, 2020. At the same time, respondent no. 1 who was next to the appellant in seniority equally protested the claim of the appellant by a letter dated 3rd November, 2020.6. The Syndicate of the University in its meeting held on 20th November, 2020, after taking note of Statute 18 (Agenda Item No. 681.18) observed that the relinquishment made by the appellant was specific to the nomination after the term of Dr. Moly P. Koshy and that was the reason Dr. Mavoothu D. was nominated for the post of HOD/Director. Taking note of Statute 18, the rotation begins according to seniority and not at the point at which earlier nomination was made. Hence, it is the appellant who has to be considered first and also noticed the number of precedents in the University where seniority was given preference and senior professors were nominated as HOD after they relinquished their actual chance. The reason behind is that the University gives paramount importance to academic and research work and doesnt want to disrupt the academic and research work of a senior Professor when his turn arises but intend to nominate the teacher after those activities are over, and accordingly recommended the name of the appellant to be appointed as HOD.7. Pursuant to the recommendations made by the Syndicate in its meeting held on 20th November, 2020, the appellant was nominated as HOD for a period of three years by Order dated 27th November, 2020 and that became the subject matter of challenge by filing of a writ petition under Article 226 of the Constitution before the learned Single Judge of the High Court at the instance of respondent no. 1.8. It reveals from the record that by an interim order dated 18th December, 2020 of the High Court, the University was directed to revisit their rival claims that were placed before the Syndicate in its meeting held on 21st December, 2020 (Agenda item no.682.20) and the earlier recommendation was strongly reiterated.9. The learned Single Judge thereafter taking note of the submissions and Statute 18 in particular, repelled the contentions advanced by respondent no.1 under order dated 1st March, 2021 and observed that the senior most person has to be considered for appointment as HOD/Director of the Department on rotational basis for a period of three years and the appellant who was admittedly senior has relinquished his claim on rotation of three years in the year 2017 and his unwillingness was for the period when the name of the appellant came for consideration in 2017 and in his place Dr. Mavoothu D. was appointed. But the time when a fresh consideration has taken place, the appellant could not be denied his right of fair consideration as the relinquishment cannot be for an infinite period and further observed that no error was committed by the Syndicate in nominating the appellant for the post of Director/HOD.10. The judgment of the learned Single Judge dated 1st March 2021 was challenged in writ appeal at the instance of respondent no. 1 and the Division Bench of the High Court under the impugned judgment overturned the finding returned by the learned Single Judge on the premise that Statute 18 conspicuously takes note of seniority on a rotational basis for a period of three years and once the relinquishment was made by the appellant in terms of the Statute 18, the appellant has foregone his right of consideration for all times to come and respondent no. 1, who was the next in queue, was to be considered for nomination as the HOD/Director of School of Management Studies of Cochin University, taking note of the admitted seniority and rotational turn, which is a subject matter of challenge in appeal before us.

Reasoning:
18. So far as the seniority of the appellant qua respondent no. 1 is concerned, it is not in dispute. In the year 2017, the appellant was a senior most Professor but because of undergoing research work at that time, he had shown his unwillingness to become the Director/HOD, by communication dated 18th July 2017 and taking note of his unwillingness, the Professor in queue, Dr. Mavoothu D. was nominated as Director/HOD with effect from 7th December, 2017 for a period of three years. Before the term of Dr. Mavoothu D. was going to complete, the appellant has shown his willingness at that time for being considered for appointment as a Director of School of Management Studies by his communication dated 26th June, 2020.22. Statute 18 of the University authorizes the Syndicate to nominate the teacher not below the rank of an Associate Professor with Ph.D or an equivalent post as prescribed by the UGC regulations for the purpose, as HOD according to seniority on a rotational basis for a period of three years. However, it would be open for the teacher who has been nominated as HOD to make a request that he/she shall be relieved of such a responsibility for academic reasons. What is being envisaged from Statute 18 is that teachers who are eligible according to seniority are being considered for HOD on a rotational basis for a period of three years, if shows unwillingness or makes a request to be relieved from such a responsibility for academic reason, can certainly be relieved for that rotation but there is no prohibition which deprives the teacher from being considered for appointment as HOD when the second rotational term becomes due. That being the reason, the University in two earlier precedents considered such teachers again who, at the first instance, had shown their unwillingness to join and later became HOD, keeping in view the paramount consideration not to disrupt the academic and research work of a senior Professor when his turn arises and if he has shown unwillingness, his seniority has to be given its pre-dominance and opportunity is available to him to serve when the next rotation becomes due and that is the reason the appellant was also considered and recommended by the Syndicate to be nominated as HOD/Director School of Management Studies keeping in view the mandate of the Statute.23. Although there is no prohibition under Statute 18, still if two views are possible and the University has interpreted in the way which serves the purpose keeping in view the paramount consideration to the academic and research work and the seniority of the teachers while considering for appointment as HOD/Director, School of Management Studies which was judicially examined and upheld by learned Single Judge of the High Court.24. This Court in N. Suresh Nathan and Another(supra) has held that past practice which is being followed for long time if not contrary to law, be given its true precedence and ordinarily not to be interfered by the Courts in exercise of power of judicial review under Article 226 of the Constitution of India. The extract of para 4 is reproduced as under:-…………….. The real question, therefore, is whether the construction made of this provision in the rules on which the past practice extending over a long period is based is untenable to require upsetting it. If the past practice is based on one of the possible constructions which can be made of the rules then upsetting the same now would not be appropriate. It is in this perspective that the question raised has to be determined.25. In our considered view, the interference made by the Division Bench of the High Court in interpreting Statute 18 of the University is not sustainable in law and deserves to be set aside.