C.J.Paul vs State Of Kerala

Mohammed Nias C.P. J

The writ petitioner claims to be a post graduate in English, with National Eligibility Test qualification fully qualified for being appointed to the post of Lecturer in the affiliated colleges of the State. The 5th respondent Management issued Ext. P1 notification inviting applications from qualified hands for filling up posts including the post of Lecturer in English. Following the said process, by Ext. P2 order, the petitioner was offered appointment as Junior Lecturer. At that time, college teachers working in affiliated colleges were classified as Lecturers coming under the UGC Scheme and Junior Lecturers coming under the Pre-Degree course category. The Government, on implementation of UGC Scheme, issued order classifying the teachers in the two categories as Pre-degree teachers and teachers coming under the UGC Scheme in the ratio of 48% and 52% respectively. The petitioner's appointment initially was a period of 178 days to a leave vacancy caused consequent to the availing of leave by a permanent Lecturer. Before the cessation of the above leave vacancy, yet another leave vacancy arose in the college and in continuation of the earlier appointment, the petitioner was shifted to that post by Ext. P3 order. While holding so, a permanent vacancy arose in the college, consequent to the retirement of Sri. E.C.Varkey, Lecturer, Selection Grade, and the petitioner was offered with an appointment to the said post on 1-4-1997 as per Ext. P4. The said appointment, it is submitted, was made in terms of the University Act and Statute. It is around this time, that the government promulgated the Pre-Degree Course (Abolition) Act, 1997 de-liniking the Pre-Degree Course from the Colleges and by Section 5 of the Act, the Government imposed a ban on appointment of teachers etc. for a period of three years from the date of commencement of the Act. In the light of the above, no formal approval order was issued. Since the salary was not paid and several teachers were affected, Government issued orders, directing the Directorate of Collegiate Education to approve the appointments for the limited purpose of the disbursement of salary and accordingly by Ext. P5 proceedings dated 6-09-2000, petitioner's appointment was also approved. By Ext. P6 order dated 11-07-1997, the management declared the probation of the petitioner in the category of Junior Lecturer.

While continuing as an approved probationer, due to the de-linking of the pre-degree course, there was a shortfall of workload in the department of English which resulted in the deployment of the petitioner as Higher Secondary School Teacher (HSST) in terms of the Government Orders  and by proceedings dated  15-1-2002, Ext. P7, petitioner was transferred as HSST   by the Corporate Educational Agency. Several vacancies arose  during the year 2008-2009 and also 2009-2010.  Petitioner submits that since he was a deployed teacher, he  was  entitled  to re-appointment/re-deployment  to  the  post  of Lecturer in English in terms of the Government Orders and the Judgment of this Court. Government had issued Ext. P8 G.O.(MS) No. 114/2002/H.Edn. Dated 5-09-2002, dealing with the deployment of the said teachers. This issue came up before this Court in large number of Writ Petitions and in W.P.C. 33707 of 2001, the following directions were issued by this Court, as seen from the judgment marked as Ext. P9.

“1. The Director of Collegiate Education is directed to identify surplus teaching staff in various colleges in the State after calling for particulars from the colleges and make a report to the Government in the order of seniority of such suplus teaching staff available in the colleges for deployment to Higher Secondary Schools. From among the list prepared by the Director, the Government shall identify the Junior Lecturers who are found surplus or such the Junior Lecturers who do not have the qualification to teach in colleges to the deployed to Higher Secondary Schools.

Those of the college teachers who are deployed to Higher Secondary Schools and who have qualification to teach in colleges should be allowed to go back to their respective colleges as and when vacancies arise in such colleges.

Government as far as possible can consider deployment of surplus teaching staff in several colleges to Higher Secondary Schools under the very same management and give option to the teaching staff to be absorbed in the Higher Secondary Schools on return basis.

The teaching staff who are deployed to Higher Secondary Schools from the colleges should be allowed to retain their lien in the college so that as and when vacancies arises in their department, they will be able to go back to their colleges.

Government will get the surplus teaching staff fixed in the colleges and the surplus teaching staff from the colleges should be deployed to Higher Secondary Schools before the commencement of the next academic year”.

Notwithstanding the above, the management issued a fresh notification inviting application from qualified hands to fill up various posts including the post of Lecturer in English by Ext. P11 notification. This was challenged by the petitioner and an interim order was granted in favour of the petitioner.

“The respondents shall not effect appointment pursuant to Ext. P11 to the extent it pertains to selection to the post of Lecturer in English in the 5th Respondent's College, without obtaining further orders from this Court”

Petitioner made a representation on 23-3-2010 to the management seeking re-deployment where a permanent vacancy arose which was declined was declared by Ext. P13 order dated 8-4-2010. The respondent management again issued a notification to fill up the post of Assistant Professors including in English Department by Ext. P14 notification. Exts. P11 and P14, are challenged in the Writ Petition and also seeking for a direction to compel the respondents to appoint the petitioner in one of the existing vacancies of Lecturer in the 5th respondent College.

The 5th respondent Management filed a counter in which it is contended that the Junior Lecturers like the petitioner were appointed after getting specific undertaking to the effect that they will not make any claim for absorption as Lecturers in colleges or for obtaining UGC benefits in future and since the petitioner has given

an undertaking, he cannot make any further claim. It is further contended that it is the University and the Academic Council which has the authority to prescribe qualification and grant exemptions and that the Government has no authority to encroach into the powers of the autonomous university or interfere in the affairs of the private colleges especially in the management of the institution. Thus, the government Orders were challenged as having no force of law. It was pointed out that the Management had filed Writ Petition challenging the Government Orders. It is also contended that the petitioner is not entitled any automatic re-appointment. The Management further contends that it is only those Lecturers whose appointments were approved by the University who will be entitled to claim lien on the colleges or claim appointment. Since the petitioner's appointment was not approved, he does not have a lien and thus prayed for dismissing the Writ Petition.

The Government had filed a counter affidavit stating that going by the relevant Government Orders, those Junior Lecturers who are already deployed in the school run by the same management are not entitled for re-deployment to the Colleges and thus contended that the Writ Petitioner cannot be granted any orders in the Writ Petition. The additional respondent impleaded in the case also filed a counter affidavit inter alia contending the same.

We heard the learned counsel Sri. P.C. Sasidharan for the petitioner, learned Senior Counsel Sri.Babu Varghese, instructed by the learned Counsel Sri. C.V. Alexander for the 5th respondent and the learned Government Pleader Sri. Bijoy Chandran.

At the outset, it has to be noted that we have considered similar issues in two Writ Petitions namely W.P. (C ) Nos. 21840 of 2009 and W.P.C. 38220/2010. Incidentally, WPC 21840/2009 was filed by the 5th respondent college herein challenging the Government Orders dated 1-7-2009 and 22-7-2009 which directed re-deployment of the similarly situated persons like the petitioner herein. We had by Judgment dated 03-02-2022 dismissed the Writ Petition filed by the Management and allowed the Writ Petition filed by the similarly situated teachers declaring their right to re-deployment. In view of the said judgment, the main issue arising in this Writ Petition stands covered against the respondent management and in favour of the petitioner. The only contention that needs to be considered is made on behalf of the Government and the additional 6th respondent in W.P.C. 38220/2010 is that if the deployment was to a school under the same management, there cannot be a re-deployment to the College under them.

It does not stand to reason that a teacher who was deployed for no fault of his cannot claim re-deployment when a vacancy arose in the college from where he was deployed. The very purpose of the Government Orders providing for re-deployment was considered by us in the judgment mentioned above. There is no reason pointed out to differentiate the petitioner's case from that of the case of the petitioner in W.P.C. 38220/2010.

We are also not shown the basis on which such assertion is made by the Government in their counter affidavit. As a matter fact, the said stand goes against the condition No. (3) in Ext. P9 judgment dated 11-2-2003 mentioned earlier. It is also to be noticed that Government by Ext. P15 order dated 1-7-2009 had issued orders directing the re-deployment of teachers who were earlier deployed to the Higher Secondary Schools. The petitioner was appointed to a permanent vacancy based on his UGC qualification and there is no dispute by any of the respondents regarding the eligibility of the petitioner. Petitioner's appointment, in fact was not as pre-degree teacher but it was to the College itself in a substantive vacancy and the deployment to the Higher Secondary School happened only on the basis of the Government Orders as stated earlier. The petitioner having being deployed on the basis of the Government Orders, the management cannot be heard to say that they will not abide by the Government Orders which directs re-deployment again on the basis of the later Government Orders. Thus, we hold that the contention of the 6th respondent  in depriving the petitioner of re-deployment cannot be accepted.  The  rejection  of  the Ext.  P12  representation by the petitioner by Ext. P13 communication of the College is clearly wrong. It is clear from Exts. P11  and P14 notifications that there were vacancies to the posts of Assistant Professor in English.  The denial of re-deployment of the petitioner is held to be   illegal. In such circumstances, it is declared that the petitioner was entitled to be re-deployed in the English Department when the vacancy arose. The petitioner though was eligible was not given appointment and the said action of the management is unjustifiable. Petitioner was compelled to continue in the Higher Secondary School and was paid salary on that basis.

The Writ Petition is allowed and it is declared that the petitioner was entitled to get re-deployment to the vacancies which arose during the period 2010 -2011 which is is evident from Ext. P11 notification. Petitioner will be entitled to all the consequential benefits flowing from the above declaration from the date of Ext. P11 notification. Respondents 1 to 3 or the competent among them will quantify the amounts payable to the petitioner and pay the same to the petitioner within four months from the date of receipt of a copy of this judgment. Since we are told that the petitioner has retired, he shall be granted all notional benefits as a consequence of the declaration granted. Government will be free to recover the amounts paid to the petitioner from the management, if they so desire.

This Writ Petition is allowed as above.