University Of Calicut vs Noushad M.C. & Ors.

“i Call for records connecting Exts.P1 to P10 from the respondents concerned;

ii.

Issue Writ of Mandamus directing 4^th respondent to approve the appointment of the petitioner as lecturer, which is re-designated as Assistant Professor in the College of 6^th respondent with effect from 01.06.2022 with all consequential benefits;

iii.

Issue Writ of Mandamus directing the respondents 1 to 3 to disburse salary with arrears to the petitioner in the event of approval granted by the 4^th respondent proposed under Ext. P6;

xxxx xxxx xxxx

vii.

Call for Ext.P12 from the 4^th respondent and issue Writ of Certiorari to quash the same”.

“Section 57(6)(b) in Calicut University Act, 1975

xxx xxx xxx

(b)a teacher relieved from a private college on or after the 14th day of March, 1974 due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed or for any other reason except disciplinary action against him, shall be given preference in the matter of future appointments in the private college or, as the case may be, any of the private colleges under the management of the educational agency within the University area.” (Underline supplied)

“4.

As the position in law is clear and as the law laid down in 1980 KLT 666 has been consistently followed by this court, we see no good reason why the first respondent University has chosen not to follow the said decision and to render its decision on the representation of the first petitioner in the matter of according approval to the appointment of petitioners 2 to 6. As the first respondent has not communicated his decision so far a writ in the nature of mandamus has to be issued.

5.

Sri. Sudhakara Prasad, learned counsel for the University, submitted that there are other aspects when the University has to take into account to ensure that the other provisions of the Act in the statute have been duly followed in the matter of appointment to justify approval being given for the appointment of petitioners 2 to 6. We make it clear that it is open to them to examine all aspects and take an appropriate decision in the matter.

6.

Unfortunately petitioners 2 to 6, though they have been rendering service as teachers from 1984, the institution in question being governed by direct payment scheme, not having received the salary for the work done, the learned Single Judge during the pendency of the original petition made an order on 20.11.1986 after bearing all the parties directing the State Government to pay the salary due to the petitioners till 30.11.1986 within a period not exceeding one month. Sri. M. I. Joseph, learned counsel for the petitioners, submits that order has been obeyed and the salary till 30.11.1986 has been drawn and disbursed to the respective teachers, petitioners 2 to 6. As the University has to take a decision on the approval sought by the first petitioner in respect of the appointment of petitioners 2 to 6. it is not right to expect petitioners 2 to 6 render service without payment for the work that they are actually doing. Therefore justice demand that we should issue an appropriate direction to the second respondent, the State Government to draw and disburse the salary to petitioners 2 to 6 for the period from 1.12.1986 till the decision is rendered by the first respondent in regard to the approval of the appointment of petitioners 2 to 6. The first respondent University is directed to render its decision on the approval of appointment of petitioners 2 to 6 as expeditiously as possible. The original petition is accordingly disposed of.” (underline supplied)

“6.

We have not been shown any authority which would be on all fours with the situation we have before us. The only case on which reliance was attempted to be placed by the 2nd respondent's counsel is the one reported in State Bank v. N S. Money [AIR 1976 SC 1111], which was a case under the Industrial Disputes Act. We shall refer to it presently. But before doing so, we will consider the scope of the section in its entirety. We have to first consider the word 'discharge' occurring in the section. The respondents' counsel submits that the word 'discharge' would take within its ambit any termination, while the petitioner's counsel submits that the word discharge has a definite meaning and a distinct connotation. According to him, the word discharge needs volition on the part of one to have its impact on another, whereas the word termination need not necessarily take in a subject and an object. We have given our anxious consideration to this aspect of the case, and we feel constrained despite our sympathies with the fourth respondent's predicament to agree with the petitioner's interpretation. The word 'termination' is used both in the transitive and intransitive form Not so the word 'discharge' in the law of master and servant When a teacher works in a temporary leave vacancy, he or she has to go out of service on the expiry of the term for which he or she was appointed and there is nothing further that has to be done by the appointing authority for termination of this appointment. No order of discharge or relief is necessary in such cases A person appointed in a temporary vacancy knows that her term will run out on a particular day and it is with this knowledge that he or she enters service In other words, in all cases of temporary service for a particular period, what is to happen on the expiry of that period is known. Abolition of a course of study cannot be anticipated. There may be many other causes, not anticipated, not in the knowledge of any one which may result in the discharge of a teacher. When such reasons occur, the teacher goes out not voluntarily but on her being discharged from service by an act of the appointing authority. The words 'abolition of a course of study' or 'for any other reason' indicate the object of the section. To include termination on the expiry of the term in the expression 'for any other reason' would not be proper. The words 'except disciplinary action' give a clear guideline to construe the word "reason" in the section. All such reasons would be those which were not in the contemplation of the parties when application was made. The dictionary meaning of the word 'discharge' may not assist us and dictionary meanings should not be the ultimate authority in matters of interpretation of statutes. 'Abolition of a course of study' is something that is beyond the control of the appointing authority or the teacher. When a course of study is abolished, the services of some teachers become redundant. Such teachers do not get out of the institution voluntarily, but are discharged from service for this reason. Such a teacher cannot be placed on the same par with a teacher who has to go out on the expiry of the term for which he or she was appointed. The expression 'for any other reason' has to take its colour from the preceding as well as the succeeding words. Termination of vacancy after the expiry of the period will never be discharge for a reason. It is the death of the service on effluxion of time. The words used in the section are not 'for any reason' or 'for any reason whatsoever'. Perhaps, some argument could have been built if such were the words used It could have been argued that the only ground excluded is disciplinary action The words used here are "for any other reason". In the expression 'for any other reason' the word 'other' assumes great importance because it has to be read along with the words 'except disciplinary action' So read, the section should be deemed to take within it only such reasons as cause the loss of service about which he or she could not have anticipated. The abolition of a course of study is an illustration. Disciplinary action is an exceptional reason. There can be other reasons too, which cannot be speculated Termination of vacancy by effluxion of time cannot be brought within this expression, and in any case it will not amount to discharge from service”. (underline supplied)

“13.

The matter may be looked at from another view point. The word preference' as understood in ordinary parlance means to preferring or choosing as more desirable, favouring or conferring a prior right. What then is the purpose and object sought to be achieved by the insertion of the preference clause in the rule? There is no doubt that preference was sought to be granted under Note 1 to post graduates in the larger, interest of the administration. How would the interest. of the administration be served by granting preference to post graduates? It is obvious that it was thought that on account of their higher mental equipment the quality of performance that the State will receive from highly qualified engineers would be better and of a high order. In other words the State considered it necessary to strengthen the engineering service by recruiting postgraduates to the extent available so that the State may benefit from their higher educational qualifications and better performance. If this was the objective surely it would not be realised unless post graduates are treated as a class and given preference on block over the graduates. Since sufficient number of post graduates may not be available from the feeder channels and even if available cannot be promoted out of turn without causing heart burns, it was thought desirable to resort to such large scale recruitment directly from the open market. The underlying idea of the Memo dated 13^th October, 1978 was the same but certain difficulties were felt in resorting to enforcement of the preference clause at the promotion stage and that is why the second part came to be inserted in Note I but no such difficulty would be experienced in strengthening the cadre through direct recruitment. But then it was said what was the need for the PSC to hold the written test by inviting applications from graduates and subjecting them to test? That was for the reason that there was no guarantee that sufficient number of post graduates would qualify for selection and appointment. But if the preference rule were to be implemented as held by the Tribunal it would apply only where the post graduate and graduate candidates have secured the same number of marks. If the rule so implemented is carried to its logical end it would ultimately resolve a tie only at the last rung of the ladder because ties at higher levels would be resolved by a post graduate being followed by a graduate in the select list. The question of elimination would really arise at the last placement in the list and hence the real purpose of the preference rule would not be served. That is why this Court in Md. Usman's case (supra) approved of this method of recruitment as most reasonable. There is nothing arbitrary or unreasonable in the employer preferring a candidate with higher qualification for service. It is well settled by a catenation of decisions that classification on the basis of higher educational qualification to achieve higher administrative efficiency is permissible under our constitutional scheme. See Roshan Lal Tandon v. Union of India [1968 (1) SCR 185; State of J & K v. Trilok Nath Koosa, [(1974) 1 SCC 19; Md. Sujat Ali v. Union of India, [(1975) 3 SCC 76; Roop Chand v. DDA, [1989] Supp. 1 SCC 116; V. Markandaya v. State of A.P., [(1989) 3 SCC 191 and Sanatan Gauda v. Berhampur University, [(1990) 3 SCC 23]. We, therefore, do not agree that treating post graduates as a class and giving them preference in this manner is violative of Articles 14/16 of the Constitution. We also do not see any vice in the relevant rule and in Note 1 as amended in 1983”.

(Underline supplied)

19.

In Y.V.V.R. Srinivasulu [(2003) 5 SCC 341],

“11.

Whenever, a selection is to be made on the basis of merit performance involving competition, and possession of any additional qualification or factor is also envisaged to accord preference, it cannot be for the purpose of putting them as a whole lot ahead of others, dehors their intrinsic worth or proven inter se merit and suitability, duly assessed by the competent authority. Preference, in the context of all such competitive scheme of selection would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred. There is no question of eliminating all others preventing thereby even an effective and comparative consideration on merits, by according en bloc precedence in favour of those in possession of additional qualification irrespective of the respective merits and demerits of all candidates to be considered. If it is to be viewed they way the High Court and Tribunal have chosen to, it would amount to first exhausting in the matter of selection all those, dehors their inter se merit performance, only those in possession of additional qualification and take only thereafter separately those with ordinary degree and who does not possess the additional qualification. Assuming for consideration without even accepting the same to be right or correct view to be taken, at least among the class or category of those possessing the additional qualification, inter se merit performance should be the decisive factor for actual selection for appointment and relief could not have been granted to respondents for the mere asking only on the basis of the interpretation of the provision to some one who came to court, ignoring the fact that those before the court at any rate in spite of the view taken do not come up to the level of selection considered in the context of numerous others with higher ranks of merit performance, in addition to they being also in possession of the additional qualification, as those before the court. That apart, the old rule relating the post of ACTO, which has become obsolete having been superseded, or even the advertisement if it has state don the basis of the obsolete rule, that preference will be given first to candidates who possess a degree in Commerce and degree in Law, secondly to those who possess a degree in Commerce and thirdly to those who possess a degree in Law, cannot either support the claim of the respondents No. 1 to 3 nor in any manner lend credence to the interpretation placed by the High Court and the Tribunal. The word 'first' has to be construed in the context of even giving preference only in the order and manner indicated therein, inter se among more than one holding such different class of degrees in addition and not to be interpreted vis a vis others who do not possess such additional qualification, to completely exclude them, en bloc”. (underline supplied)

“12.

Admittedly in the requisition sent by respondent No. 4 to the Employment Exchange candidates having VIII class passed qualification were called for consideration and accordingly the Employment Exchange sponsored as many as 40 candidates all VIII class passed. It is true that the guidelines contained in "Method of Recruitment" mentions that the minimum educational qualification is VIII passed and preference will be given to SSC passed. But the requisition did not specify that preference would be given to SSC passed candidates. Had the fourth respondent notified this condition, perhaps the Employment Exchange would have also sponsored SSC passed candidates as well. As the basis of selection was in terms of requisition to the Employment Exchange, the selection authority has committed no illegality in not giving preference to SSC passed candidate - respondent No. 5. However, the preference clause for higher qualification does not mean that irrespective of fulfillment of other norms SSC passed have to be preferred. Where any rule or guideline provide preference in respect of some higher qualification, it only means that all other requirements being equal, a person possessing higher educational qualification will be preferred. It cannot, however, be considered as the sole criteria for preference in selection and appointment”. (underline supplied)

“12.

At this juncture, we think it appropriate to advert to when preference is given on the basis of merit and suitability. Conceptual preference, fundamentally, would mean that all aspects, namely, merit, suitability, fitness, etc. being equal, preference is given regard being had to some other higher qualifications or experience, etc. In this regard, we may refer with profit to the dictum in Secretary, A.P. Public Service Commission v. Y.V.V.R. Srinivasulu and Others [(2003) 5 SCC 341] wherein a two - Judge Bench stated about the preference. Though the principle was laid down in the context of a particular rule, yet we reproduce the same with profit: -

"Whenever, a selection is to be made on the basis of merit performance involving competition, and possession of any additional qualification or factor is also envisaged to accord preference, it cannot be for the purpose of putting them as a whole lot ahead of others, dehors their intrinsic worth or proven inter se merit and suitability, duly assessed by the competent authority. Preference, in the context of all such competitive scheme of selection would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred." (underline supplied)

“9.

The principle of preferential candidates would apply when there is a tie between the preferential candidate and a general candidate and the person who is to be treated as a preferential can be given a mark over a general candidate. This is the most material distinction. In view thereof, the respondent could not have been treated as a “preferential candidate” much less a “priority candidate”.

10.

The respondent apparently was also conscious of this fact as she has not claimed eligibility for concession under any priority quota and having scored 29.283 marks in total, the last selected person was well above her marks both under SC(General) category or SC(women) Category, the latter being 34.142 and was thus denied selection. In our view the courts below appeared to have missed the distinction between priority and preference moreso as respondent had not claimed any priority other than what she had set out. The question of preference, even if it had to work in favour of the respondent, would arise if she was identically situated as the other candidates in terms of the marks and would then get the preference, we find it apposite to reproduce the observations of this Court in Secy., A.P. Public Service Commission v. Y.V.V.R. Srinivasulu, (2003) 5 SCC 341:

“10.

… The word “preference” in our view is capable of different shades of meaning taking colour from the context, purpose and object of its use under the scheme of things envisaged. Hence, it is to be construed not in an isolated or detached manner, ascribing a meaning of universal import, for all contingencies capable of an invariable application. The procedure for selection in the case involves a qualifying test, a written examination and an oral test or interview and the final list of selection has to be on the basis of the marks obtained in them. The suitability and all-round merit, if had to be adjudged in that manner only, what justification could there be for overriding all these merely because, a particular candidate is in possession of an additional qualification on the basis of which, a preference has also been envisaged. The Rules do not provide for separate classification of those candidates or apply different norms of selection for them. The “preference” envisaged in the Rules, in our view, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone. A mere rule of preference meant to give weightage to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence. Such a construction would not only undermine the scheme of selection envisaged through the Public Service Commission on the basis of merit performance but also would work great hardship and injustice to those who possess the required minimum educational qualification with which they are entitled to compete with those possessing additional qualification too, and demonstrate their superiority meritwise and their suitability for the post. It is not to be viewed as a preferential right conferred even for taking up their claims for consideration. On the other hand, the preference envisaged has to be given only when the claims of all candidates who are eligible are taken for consideration and when any one or more of them are found equally positioned, by using the additional qualification as a tilting factor, in their favour vis-à-vis others in the matter of actual selection.

11.

Whenever, a selection is to be made on the basis of merit performance involving competition, and possession of any additional qualification or factor is also envisaged to accord preference, it cannot be for the purpose of putting them as a whole lot ahead of others, dehors their intrinsic worth or proven inter se merit and suitability, duly assessed by the competent authority. Preference, in the context of all such competitive scheme of selection would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred. There is no question of eliminating all others preventing thereby even an effective and comparative consideration on merits, by according en bloc precedence in favour of those in possession of additional qualification irrespective of the respective merits and demerits of all candidates to be considered”. (underline supplied)

24.

In OM Prakash [(2006) (6) SCC 474], on the controversy of the selection made by the Uttar Pradesh Public Service Commission for the Medical Officers of Homoeopathy in the advertisement providing preference to degree holders, the Apex Court held thus;

“9.

However, the High Court on the aforesaid reasoning of interpretation of the preference clause as prescribed in the advertisement has come to the following conclusion:

"Considering the facts and circumstances of the case, we have no hesitation in holding that the Commission acted in a most arbitrary and unreasonable manner in making selection for the post of Homeopathic Medical Officer. It is not expected from such a constitutional body, like the Public Service Commission to act in such a casual manner while considering the public employment. We would have had no hesitation in quashing the entire selection made by the Commission but considering the public interest and also bearing in mind that the persons already selected have been appointed and are working on their posts as Homeopathic Medical Officers for more than two years and they could not be made party in these writ petitions, although a few of them have intervened by filing applications and have been heard, and further that fresh selection will unreasonably (sic cause) delay, causing inconvenience to the public in general, we refrain from doing so in the larger interest. Therefore, on conclusion of the hearing, we sought information from the learned Standing Counsel as to how many posts of Homeopathic Medical Officers are still vacant. The learned Standing Counsel filed an affidavit on behalf of the State annexing therewith a letter dated 20-5-1996, disclosing that 50 posts of Homeopathic Medical Officers are still lying vacant, out of which 15 posts are earmarked for the female candidates. Therefore, considering all these circumstances, we are of the view that it would be equitable in the facts of the case to issue direction to the Commission to forward the names of all the petitioners to the State Government for appointment on the vacant post of Homeopathic Medical Officers." The interpretation of the preference clause given by the High Court runs into the teeth of the decisions rendered by this Court in a catena of cases. This Court has consistently held that when selection is made on the basis of merit assessed through the competitive examination and interview, preference to additional qualification would mean other things being qualitatively and quantitatively equal, those having additional qualification would be preferred. It does not mean en bloc preference irrespective of inter se merit and suitability.

"7.

Admittedly, in the advertisement which was published calling for applications from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is BDS. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that MDS is a higher qualification than the minimum qualification required for the post and Respondent 1 was having that degree. The question then arises is whether a person holding a MDS qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weightage has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extra curricular activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a MDS qualified person like Respondent 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualification person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed."

“7.

According to K.J. Aiyar''s Judicial Dictionary, Twelfth Edition (1998), ''preference'' means "prior right, advantage, precedence etc. But how would it be possible to give precedence over the other. It signifies that other things being equal, one will have preference over the others. ''Preference'' in the context of stage carriage permit would mean that other things generally appearing to the qualificatively and quantitatively equal though not with mathematical accuracy, statutory provision will tilt the balance in favour of the Undertaking. [(1984) 1 SCC 107 : (1984) 1 ISCR 464)”.

8.

According to Words and Phrases, Volume 33, a ''preference'' is the act of preferring one thing above another, or the choice of one thing rather than another, or the state of being chosen or preferred before others. (MacNabb v. Sheridan, MD 29 A.2d 271, 272, 181 Md. 245).

10.

In our considered view, in the case of Om Prakash (supra), advertisement prescribed, as per applicable ''Rule'', both degree as well as diploma in Homeopathy the requisite qualification, but while finalizing selection on merit preference was to be given to the degree-holders, in those circumstances when one or more of the candidates were found equally positioned then only the additional qualification could be said to be a tilting factor in favour of candidates vis-a-vis others in merit to be prepared but in the present case, facts and circumstances are different, where both VIII standard/Middle standard and Matriculation are not requisite qualifications for the post of ''EDDA'' but requisite qualification is VIII standard only but preference could be given to Matriculate. As such, the decision of Om Prakash (supra) is distinguishable in the facts and circumstances of present case”. (underline supplied)

“2.

Counter - affidavits have been filed by the 1^st respondent as also the 2^nd respondent University. In the counter -affidavit filed by the 2^nd respondent University, the appointment of the petitioner to the vacancy that resulted consequent to the retirement of a teacher on 31.03.2013, is justified on the basis of Section 57(6)(b) of the Act. It is stated that in asmuch as the petitioner had obtained preferential right to future appointments in the College, consequent to the approval accorded by the University to the earlier spell between 01.02.1990 and 29.03.1990 when the petitioner worked as a Lecturer in Malayalam, the appointment of the petitioner to the subsequent vacancy, which arose consequent to the retirement on 31.03.2013, was in order. In the counter - affidavit filed by the 1^st respondent, however, objection is taken to the appointment of the petitioner to the said vacancy. It is in particular pointed out that the initial appointment of the petitioner as Lecturer in Malayalam was only to a temporary vacancy, and as such, it was Section 57(6)(a) that would govern the appointment of the petitioner and not Section 57(6)(b) of the Act. Alternatively, it is contended that even in terms of Section 57(6)(b) of the Act, the right obtained by the petitioner consequent to the earlier spell is only a right to preference in the matter of future appointments in the College and not a right to get appointed as such. It is contended that, by virtue of the right obtained under Section 57(6)(b), the petitioner would be entitled to a preference over other candidates in a selection process that had to be necessarily conducted for determining the candidate who would be appointed to the post in question. A reply affidavit has also been filed by the petitioner refuting or traversing the averments in the counter - affidavit filed by the 1^st respondent. xxx xxx xxx

3.

On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that it is not in dispute that while appointing the petitioner as a Lecturer in Malayalam to the leave vacancy that arose between 01.02.1990 and 29/03/1990, the respondent had complied with a selection process as mandated by the provisions of the Kerala University Act, Rules and First Statues for selecting a candidate, and it was in that selection that the petitioner was selected and appointed to the leave vacancy. Section 57(6)(b) of the KU Act reads as follows:

57. Appointment of teachers in private colleges.--

(6)

Notwithstanding anything contained in this Act, the Statutes, Ordinances and Regulations made thereunder:

(a)

xxxx xxxx xxxx

(b)

a teacher relieved from a private college on or after the 14^th day of March, 1974, due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed or for any other reason except disciplinary action against him, shall be given preference in the matter of, future appointments in the private college or, as the case may be, any of the private colleges under the management of the educational agency within the University area. It will be clear from a reading of Section 57(6)(b) of the Act that the right that is conferred on a teacher, who was relieved from the College due to cessation of the period for which he was appointed, is one that gives him a preference in the matter of future appointments in the private college. It is relevant to note that the right that is conferred is not one that entitles him to a preferential consideration for appointment. The distinction is of importance because a selection process can have meaning only in a case where there are many persons applying for a post and they all have a right to be considered for appointment to the post in question. If, on the other hand, as in the instant case, there is only one person who has been given a preferential right to appointment to a future post, then there cannot be a selection process envisaged for the purposes of giving effect to the right of that person. Thus, it cannot be said that, prior to giving effect to the right that accrued to the petitioner by virtue of Section 57(6)(b) of the Act, the petitioner had to undergo a fresh selection process for appointment to the post in question.

There is yet another aspect of the matter. It is settled that once the University approves the appointment of a member of the teaching staff in a college, then the 3^rd respondent has no option, but to effect payment of salary to the teacher in question by deferring to the decision of the respondent University to approve the appointment of the teacher in question. No doubt, if the 3^rd respondent has a case that there was no sanctioned post to which the teacher could be appointed, or that the appointment of the teacher was to a post that could not have been sanctioned taking into account the work load recognised by the respondent University, it would have been open to the 3^rd respondent to approach the respondent University with the said objection and await a decision of the respondent University on the same (See Cherian Mathew v. Principal S.B. College, Changanassery, [1998 KHC 336 : 1998 (2) KLT 144 : ILR 1998 (3) Ker. 1 : 1996 (1) KLT SN 45] and State of Kerala and Others v. Dr. Sina A. R. and Others, [2007 (3) KHC 96 : ILR 2007 (3) Ker. 122 : 2007 (2) KLJ 770 : 2007 (3) KLT 355]. In the instant case, it is not in dispute that the 3rd respondent had not raised any objection with regard to the approval of the appointment of the petitioner, and in that sense, it was not open to the 3rd respondent to refuse to counter sign the salary bills pertaining to the petitioner without first having raised any objection before the respondent University. Thus, in any view of the matter, the action of the 3^rd respondent, in refusing to counter sign the salary bills forwarded to him by the 5^th respondent, is improper. Resultantly, I allow the writ petition directing the 3^rd respondent to counter sign the salary bills forwarded to him by the 5^th respondent, insofar as it pertains to the salary payable to the petitioner, and disburse all consequential monetary benefits flowing from the said counter signature, within a period of two months from the date of receipt of a copy of this judgment”. (underline supplied)

“9.

Thirdly, it was contended that in terms of Statute 14 of Chapter 45 of the University Statute, the maximum age limit provided for direct appointment is 36 years and that both the petitioners have exceeded the maximum age limit prescribed in the Statute. In so far as this contention is concerned, it should be noticed that Section 62(2)(b) of the Act does not make the right of reappointment of a teacher who was discharged on cessation of the period for which he was appointed, subject to the maximum age for recruitment. If that be so, irrespective of the age limit provided for direct recruitment, a beneficiary of Section 62(2)(b) is entitled to claim the statutory right. Any interpretation to the contrary will be defeating the provision itself. xxxxxxxxxxx

14.

Apart from the above, it should also be noticed that insofar as the petitioner in WP (C) No. 12784 of 2004 is concerned, even though NET was made a mandatory qualification, despite the fact that she did not pass the same, she was reappointed by Exts. P7 and P9, for subsequent periods, recognizing the fact that she had already rendered approved service in the College. If that be so, the fact that NET was made a mandatory qualification subsequent to their initial appointment cannot stand in the way of the petitioners”. (underline supplied)

“7.

xxxxxxxxxxx

We have gone through the amendment effected to R.3(1) and 4(1) of Chap.31. There is nothing to indicate that the right conferred under R.51A of Chap.14A has been taken away. Mere fact that a new qualification has been introduced does not mean that it has taken away the statutory right already conferred on R.51A claimants which is in the nature of a vested right to those qualified teachers who are relieved as per R.49 or R.52 on the ground of termination of vacancies. Right is said to be vested when the right of enjoyment, present or prospective, has become the property of some particular person or persons as a present interest, independent of contingency. This is a right which cannot be taken away without the consent of the owner. Vested right can arise from contracts, from statutes and from operation of law. A right of action preferred by a particular statute is said to be a vested right”. (underline supplied)

“7.

In such view of the matter, we cannot subscribe to the contentions of the appellants that merely because the petitioner did not have NET qualification, she should be deemed to be unqualified to be appointed to the post of Asst. Professor, and, therefore, that she should not be given re-designation as provided under clause 6.1.10 of Ext.P2 Regulations. Further, we are certainly in affirmation with the view of the learned single Judge, with which we are in complete agreement, that in any event of the matter, clause 6.1.10 of Ext.P2 does not prescribe any further conditions other than what is stated explicitly therein, which axiomatically means that the entitlement to re-designation therein does not depend upon the qualification or its absence at the time of initial appointment.” (underline supplied)

“Section 57(6)(b) of Kerala University Act, 1974 xxxxxxxxxx (b) a teacher relieved from a private college on or after the 14^th day of March, 1974 due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed or for any other reason except disciplinary action against him, shall be given preference in the matter of , future appointments in the private college or, as the case may be, any of the private colleges under the management of the educational agency within the University area”

“Section 62(2) in Mahatma Gandhi University Act 1985 Xxxxxxxxxx (b) a teacher relieved from a private college on or after the 14th day of March, 1974 due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed or for any other reason except disciplinary action against him shall be given preference in the matter of future appointments in the private college or, as the case may be, any of the private colleges under the management of the educational agency within the University area”.