Dr.K.G.Beena vs State Of Kerala

A.K.Jayasankaran Nambiar, J.

These appeals are directed against the common judgment dated 19.11.2021 of the learned Single Judge in W.P. (C).No.19273/2018 and W.P.(C).No.2543/2019.

W.P.(C).No.19273/2018 was preferred by Dr.K.G.Beena, who, while working as a Tutor in the Department of Rachana Sareera with a designation and pay as Professor, was aggrieved by the proposal of the Management of the Ayurveda Medical College to promote Dr.Praveen M.P. as the Head of the Department of Rachana Sareera in a vacancy arising to the said post with effect from 1.7.2018, consequent to the retirement of the earlier incumbent on 30.6.2018.

W.P.(C).No.2543/2019 was preferred by Dr.Praveen M.P. impugning the order dated 21.1.2019 of the Kerala University of Health Sciences [KUHS], passed on representations preferred by Dr.Beena and himself, which found that, as between the two of them, Dr.Beena had a superior claim to be posted as the Head of the Department of Rachana Sareera of the Ayurveda Medical College. While the said writ petition was pending, a consequential order dated 28.1.2019 was also passed by the Ayurveda Medical College promoting Dr.Beena as Associate Professor and Dr.Praveen as Assistant Professor in the Department of Rachana Sareera, and declaring Dr.Beena as the Head of the Department of Rachana Sareera. The said order was also challenged in the writ petition by amending the same.

The brief facts necessary for disposal of these Writ Appeals, which essentially involve the rival claims of Dr.K.G.Beena and Dr.Praveen M.P, for the post of the Head of the Department of Rachana Sareera in the Vaidyaratnam Ayurveda College, Ollur, Thaikkattussery, Thrissur District, are as follows:

Dr.K.G.Beena was the holder of a BAMS Degree when she was appointed as Tutor at the Kottakkal Unit of the Vaidyaratnam P.S. Varier Ayurveda College with effect from 6.8.1991. During the relevant time, the Regulations that governed the appointment of teachers in the Ayurveda Medical Colleges, affiliated to the Calicut University, was the Calicut University Regulations, and as per the said Regulations, only the basic qualification of BAMS was required for appointment as Tutor. She was later transferred to the Ollur Unit of the Ayurveda College with effect from 3.11.1994, and while there, she was promoted as Lecturer with effect from 26.2.1999. It is relevant to note that the Regulations in question were amended with effect from 29.6.1999, and later, Special Rules for the Kerala State Ayurveda Medical Education (Teaching) Services were also promulgated by the Government by G.O. dated 2.8.2007. The said changes in the Regulations were consequent to the introduction of the Department system in Ayurveda Medical Colleges based on the norms issued by the Central Council of Indian Medicine. Dr.K.G.Beena acquired her MD qualification in 2002, and immediately thereafter rejoined duty at the Ollur Unit on 3.5.2002. In the meanwhile, on 22.4.2000, in the wake of the introduction of the Department system and the consequential staff pattern, the Principal of the College called for options to be exercised by the teaching staff for the various Departments in the College. Although Dr.Beena submitted an option for the Kaumarabrithya Department, and an order dated 30.5.2000 was passed by the Director of Ayurveda Medical Education allotting Dr.Beena to the Department of Rachana Sareera, with a lien retained in the Kaumarabrithya Department, she could not actually be posted in the Kaumarabrithya Department for want of a sanctioned post of Lecturer in the said Department. The arrangement whereby she continued to work in the Department of Rachana Sareera, notwithstanding retaining a lien in the Kaumarabrithya Department where, curiously, there was no post, was approved by the Calicut University vide order dated 14.2.2005.

It would appear that Dr.Beena continued to pursue her claim for a formal appointment against a sanctioned post in the Kaumarabrithya Department, with the State Government as also the University, but the said request fell on deaf ears. She therefore approached this Court through W.P.(C).No.29200/2007, which was disposed by judgment dated 3.10.2007, directing the University to consider and pass orders on her representation. Acting on the said judgment, the University proceeded to reject the request of Dr.Beena for shifting of a post of Lecturer to the Department of Kaumarabrithya so as to accommodate her. This order dated 15.2.2008 of the University was challenged by Dr.Beena in W.P.(C).No.7529/2008, wherein, the Court, taking note of the directions that had been issued in an earlier writ petition pertaining to staff pattern in Ayurveda Medical Colleges, allowed the writ petition of Dr.Beena. The judgment of the learned Single Judge, however, was carried in an appeal before a Division Bench, at the instance of one Sri.P.V.Madhusoodhanan, and in the judgment dated 22.12.2009 in W.A.No.2385/2009, the Division Bench directed the Calicut University to reconsider the issue regarding the claim of Dr.Beena for accommodation in the Department of Kaumarabrithya, afresh, after hearing all the relevant parties.

The Calicut University thereafter proceeded to pass an order dated 2.5.2011 directing the Management to accommodate Dr.Beena in the Department of Kaumarabrithya, as and when a vacancy to the post of Lecturer arose in the said Department. It was made clear in the said order that it was only thereafter that the claim of Dr.Praveen M.P. for promotion and posting in the Department of Rachana Sareera could be considered. The said order of the Calicut University was again impugned by Sri.Madhusoodhanan in W.P.(C).No.13960/2011, wherein, this Court, by judgment dated 7.3.2017, directed the University to reconsider the matter.

While matters stood so, Dr.Beena was granted the designation and pay of Professor with effect from 20.1.2012 as per order dated 24.6.2014. By the same order, Dr.Praveen was also given the designation and pay as Assistant Professor. Both these actions were approved by the Director of Ayurveda Medical Education. The Calicut University, by an order dated 13.9.2017, directed Dr.Beena to be posted as Professor in Kaumarabrithya, and thereafter to post Dr.Praveen as Professor in Rachana Sareera. This order of the University was impugned in W.P. (C).No.31548/2017, at the instance of Madhusoodhanan, and in the said writ petition, by an interim order dated 4.10.2017, the operation of the said University order was stayed by this Court. In the meanwhile, apprehending a promotion of Dr.Praveen as the Head of the Department of Rachana Sareera in the College, Dr.Beena preferred a representation dated 5.6.2018 before the University, and immediately thereafter approached this Court through W.P.(C).No.19273/2018. It would appear that, acting on the said representation, as also a similar representation received from Dr.Praveen, the University [which, by now, was a different one namely, “the Kerala University of Health Sciences”], passed an order dated 21.1.2019 finding that Dr.Beena's service in the Department of Rachana Sareera could not be ignored, and that the action of the Management of the College in retaining her lien in the Kaumarabrithya Department, when there was no sanctioned post of Lecturer in the said Department, was wholly illegal. The logical result, according to the University, was that both Dr.Praveen as also Dr.Beena had to be seen as Teachers in the Department of Rachana Sareera, and when so viewed, Dr.Beena had to be seen as senior to Dr.Praveen, and therefore, entitled to preferential appointment as the Head of the Department of Rachana Sareera in the College. It is the said order dated 21.1.2019 of the KUHS that is impugned by Dr.Praveen in W.P. (C).No.2543/2019, where he contends that insofar as Dr.Beena had never opted for the Department of Rachana Sareera, and her claim was always to a post in the Department of Kaumarabrithya, the impugned order of the University could not be legally sustained. While the said writ petition was pending, the College proceeded to pass consequential order dated 28.1.2019, promoting Dr.Beena as Associate Professor and Dr.Praveen as Assistant Professor in the Department of Rachana Sareera, and declaring Dr.Beena as the Head of that Department. This latter order was also impugned by Dr.Praveen, by amending his writ petition accordingly.

Counter affidavits were filed by the Director, Ayurveda Medical Education as also by the Manager of the Vaidyaratnam Ayurveda Medical College. Reply affidavits are also seen filed by the respective writ petitioners. The learned Single Judge, who considered the matters, after noticing the rival contentions, opined that if the KUHS had noticed the occurrence of vacancy, on account of superannuation of the earlier incumbent in the Department of Kaumarabrithya, in 2017, and accommodated Dr.Beena to the said vacancy, there would have been no occasion for a controversy to reach this Court. The learned Single Judge held that the matter required a reconsideration, in the hands of the University, by taking note of the fact that there was a vacancy of Professor in the Department of Kaumarabrithya with effect from September, 2017, and inasmuch as the lien of Dr.Beena had been recognized in the Department of Kaumarabrithya, she should have been accommodated to the said vacancy, notwithstanding her continuous teaching service rendered in the Department of Rachana Sareera. The learned Single Judge felt that if the lien of Dr.Beena was recognized in Department of Kaumarabrithya, then the teaching experience obtained in the Department of Rachana Sareera could be counted towards the experience in the Department of Kaumarabrithya, and she could accordingly be accommodated to the vacant post of Professor in that Department. The said arrangement would also have ensured that the rival claimant - Dr.Praveen could continue in the Department of Rachana Sareera and stake a claim to the post of Head of that Department. While disposing the writ petitions accordingly, by setting aside the order impugned in the writ petitions, the learned Judge directed that the order of promotion of Dr.K.G.Beena as the Head of the Department be kept in abeyance till a decision was taken by the University, and the writ petitioners assigned their respective seniority in the appropriate Department in the College.

In the appeals preferred by Dr.Beena against the common judgment of the learned Single Judge, the contention of Sri.Elvin Peter P.J., the learned counsel appearing for the appellant is essentially that the learned Single Judge erred in directing a reconsideration of the matter by the University, more so when, in the order dated 21.1.2019 of the University, the action of the Management of the College in retaining the lien of Dr.Beena in the Department of Kaumarabrithya, when there was no sanctioned post of Lecturer in that Department, was found to be illegal. He would contend that the concept of a lien is always in relation to a sanctioned post, and in the absence of a post, there could not be a lien. Accordingly, when one went by the actual work rendered by Dr.Beena in the years from 1991, it had to be found that she had all along worked in the Department of Rachana Sareera, for it was only in that Department that there was post to accommodate her. Having worked in the said Department, and inasmuch as she was admittedly senior to Dr.Praveen in that Department, it was only natural that the vacancy to the post of the Head of Department be extended to her in preference to Dr.Praveen.

During the course of hearing, we interacted with the Director of Ayurveda Medical Education through video conference when he referred us to the Special Rules for the Kerala State Ayurveda Medical Education (Teaching) Services, to highlight that a promotion to the post of Associate Professor/Professor required a candidate to have a prescribed minimum number of years of teaching experience in the particular Department. He would point out that, in the light of the Special Rules, which came into force with effect from 4.8.2007, Dr.Beena could aspire for promotion only in the Department of Rachana Sareera, in which she had the necessary teaching experience. The contention of Sri.Gopakumar R. Thaliyal, the learned counsel for Dr.Praveen, on the otherhand, is that Dr.Beena had, all along, staked her claim for a post in the Department of Kaumarabrithya based on the lien that was assigned to her in that Department, and hence, it was inappropriate/improper for her to turn around and seek service benefits through promotion in the Department of Rachana Sareera. He would point out that the placement of Dr.Beena in the Department of Rachana Sareera, has had the effect of impeding the chances of promotion of Dr.Praveen, who, after years of service, will retire from the sanctioned post of Assistant Professor. The submission of Sri.Peter Jose Christo, the learned counsel for the Ayurveda College, defending the order passed by the College appointing Dr.Beena as the Head of the Department of Rachana Sareera, is that the College was acting only pursuant to the directions issued by the University, and the claim of Dr.Beena could be considered only in the Department of Rachana Sareera, where she had actually rendered teaching work.

On a consideration of the rival contentions, we find ourselves unable to uphold the directions of the learned Single Judge relegating the issue to the University for a fresh consideration. The directions issued by the learned Single Judge were apparently without noticing the express provisions in the Special Rules aforementioned, which have necessarily to be adhered to while deciding the inter se claim of Dr.Beena and Dr.Praveen to the post of the Head of the Department of Rachana Sareera. As pointed out by the Director of Ayurveda Medical Education, the Special Rules clearly mandate a requisite period of experience in the same Department as a criteria for cadre promotion. It would follow therefore that promotions can be claimed by Dr.Beena only in the Department of Rachana Sareera and not to any post in the Department of Kaumarabrithya. The contention of the learned counsel for Dr.Praveen that Dr.Beena had all along had a lien in the Department of Kaumarabrithya, cannot be accepted for the simple reason that it is an admitted fact that during the relevant period when she held the lien, there was no sanctioned post of Lecturer/Assistant Professor in the said Department. A lien must necessarily be in relation to a sanctioned post that exists, and in the absence of a post, the concept of a lien become meaningless. We are therefore of the view that the order dated 21.1.2019 of the KUHS and the consequential order dated 28.1.2019 of the Ayurveda Medical College concerned, do not call for any interference.

For the reasons stated above, we allow the Writ Appeals, by setting aside the impugned judgment of the learned Single Judge, to the extent it relates to W.P.(C).No.19273/2018 and W.P. (C).No.2543/2019. Accordingly, W.P.(C).No.19273/2018 will stand allowed in terms of the order dated 21.1.2019 of the University and the order dated 28.1.2019 of the Ayurveda Medical College, whereas W.P.(C).No.2543/2019 shall stand dismissed. There will be no order as to costs.