Disposed

Dr. Tony K. Raphael v. Sree Sankaracharya University of Sanskrit

Kerala HC28 Jun 2016WP(C)/9281/2012

Case brief

AI extract

What is this about?

Contractual university teachers included in regular selection rank lists sought regularisation on parity with similarly situated teachers. The court quashed the rejection orders and directed regularisation as Assistant Professors in Malayalam and Philosophy within two months of production of the judgment. Consequential benefits were left for representations to the University.

What did the court decide?

Rejection orders quashed; University directed to regularise both petitioners as Assistant Professors within two months of production of a certified copy of the judgment.

Dr. Tony K. Raphael Vs Sree Sankaracharya University… — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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TUESDAY, THE 28TH DAY OF JUNE 2016/7TH ASHADHA, 1938

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WP(C).No. 9281 of 2012 (I)

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PETITIONER(S):

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1. DR. TONY K. RAPHAEL LECTURER,SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, PO:KALADY,ERNAKULAM DISTRICT,PIN:683574.

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BY ADVS.SRI.K.JAJU BABU (SR.)

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SMT.M.U.VIJAYALAKSHMI SMT.DHANYA CHANDRAN

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RESPONDENT(S):

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1. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT PO:KALADY,ERNAKULAM DISTRICT PIN:683574,REPRESENTED BY ITS REGISTRAR.

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2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT,HIGHER EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM0-695001.

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R2 BY ADV. GOVERNMENT PLEADER SRI.P.V.ELIYAS R1. BY ADV. SRI.ARUN B.VARGHESE,SC, SREE SANKARACHARYA UTY.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-06-2016, ALONG WITH WPC. 8625/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 9281 of 2012 (I)

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APPENDIX

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PETITIONER(S) EXHIBITS

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------------------------------------

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EXT-P1 COPY OF SHORT CURRICULUM VITAE OF THE PETITIONER.

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EXT-P2 TRUE COPY OF THE ORDER MAL/11/AD.A/97/SSUS DATED 10.6.1997 ISSUED BY THE IST RESPONDENT

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EXT-P3 A COPY OF THE APPOINTMENT ORDER NO.27 ' 18/ADMN/A/S/SUS.2000 DATED 2.6.2000 IN FAVOUR OF THE PETITIONER,ISSUED BY THE IST RESPONDENT.

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EXT-P4 COPY OF THE RANK LIST PUBLISHED ON 7.6.1997 BY THE IST RESPONDENT FOR THE POST OF LECTURER IN MALAYALAM,PURSUANT TO THE INTERVIEW HELD ON 5.6.1997.

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EXT-P5 COPY OF THE RANK LIST FOR APPOINTMNET AS LECTURER IN MALAYALAM PUBLISHED ON 31.5.1998 BY THE IST RESPONDENT.

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EXT-P6 COPY OF THE EXTRACT OF THE RESOLUTION OF THE SYNDICATE OF THE IST RESPONDENT IN ITS 106TH MEETING HELD ON 17.3.2011

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EXT-P7 COPY OF THE ORDER NO.4345/AD.A3/2011/SSUS DATED 20.4.2011 OF THE IST RESPONDENT.

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EXT-P8 COPY OF THE JUDGMENT OF THIS HON'BLE COURT,DATED 27.5.2011 IN WP(C)25893/2010.

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EXT-P9 COPY OF THE DIRECTION OF THE PETITION COMMITTEE OF THE KERALA LEGISLATIVE ASSEMBLY NO.14831/PET.A1/2010/LEGIS,22-22011

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EXT-P10 COPY OF THE ORDER NO.AD.A3/2291/SSUS/2011 DATED 1/3/2011 ISSUED BY THE IST RESPONDENT.

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EXT-P11 COPY OF THE REPRESENTATION DATED 5.10.2011 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.

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EXT-P12 COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 4.11.2011 IN WP(C)28855/2011.

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EXT-P13 COPY OF the MINUTES OF THE MEETING HELD ON 18.2.2012 OF THE SYNDICATE OF THE IST RESPONDENT.

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EXT-P14 COPY OF THE LETTER NO.AD.A2/13521/SSUS/11/DATED 23.3.2012 ISSUED BY THE RESPONDNENT TO THE PETITITIONER.

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RESPONDENTS' EXHIBITS

NIL

//TRUE COPY//

PA TO JUDGE

avk

ALEXANDER THOMAS, J.

W.P.(C).Nos.9281 & 8625 of 2012

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Dated this the 28^th day of June, 2016

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JUDGMENT

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W.P.(C).No.9281 of 2012

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W.P.(C).9281 of 2012 could be treated as the leading

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case and the facts in that case could be dealt with initially.

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It is the case of the petitioner in W.P.(C).No.9281 of 2012 that he is having Master's Degree in Malayalam language and literature with first class and second rank from the Calicut University, which he acquired in the year 1986 and that later he has acquired M.Phil Degree & Ph.D Degree both in Malayalam and he had also qualified the National Eligibility Test (NET) conducted by the University Grants Commission (UGC). He is a recipient of “Vylopilly Award for poetry” (1998), “Kanaka Sree Award” of Kerala “Sahithya Academy” for “poetry” in 1999. It is his case that he is having continuous service in the respondent Sree Sankaracharya University of Sanskrit since 10.6.1997 onwards. The respondent University is established by an Act of legislature in the year 1994 and before the framing of the statutes under the said University Act,

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W.P.(C).Nos.9281 & 8625 of 2012 2

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the first Vice Chancellor of the respondent University, had made several appointments to the regular vacancies, and those appointments were challenged before this Court and the Division Bench of this Court in the case “Sree Sankaracharya University v. State of Kerala and Others” reported in 1996 (2) KLT 378 had set aside the entire appointments, on the ground that those appointments were made prior to the framing of the first statutes under the University Act and so the same is in violation of the mandatory provisions of Section 31 (1) of the Act, which stipulates that regular appointments are to be made only on the basis of the recommendations of the Selection Committee which is constituted in terms of the provisions of the statutes framed under the provisions of the Act. Therefore, all such appointments so made by the first Vice Chancellor had to be terminated by the respondent University Authorities, in compliance with the said judgments of the Division Bench. But inorder to ameliorate the hardships caused to such appointees who are thrown out due to such litigative verdict, the State Government had issued a Government Order enabling those appointees, who had taken up such appointments in the University, after leaving their prior appointments in Government

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W.P.(C).Nos.9281 & 8625 of 2012 3

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departments and such other institutions, to come back to their parent institutions and the said Government Order had also ordered to treat the period in which such appointees are worked in the respondent University as deputation without any financial benefit. It is pointed out that some persons who could not claim the benefit of the said Government Order, had to look for employment elsewhere, whereas some others have continued in the respondent University on contract basis. The respondent University had framed the first statutes which was notified on the gazette on 15.9.1997 and the said statutes also contained specific provision in Statute 4 and under Chapter III thereof which deals with the constitution of Selection Committee in the matters of appointments of teachers at the University etc. In pursuance of the statutory provisions in the Act and statute framed thereunder, the respondent University had caused the publication of a selection notification for regular selection and appointment to various teaching post in the University on 5.9.1997. In the meanwhile, the respondent University, in order to meet with the hardpressing needs for meeting the teaching requirements of students who were admitted to the various institutions, was constrained to initiate contract appointments and

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W.P.(C).Nos.9281 & 8625 of 2012 4

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thereupon Ext.P-4 rank list was published on 7.6.1997 in respect of the subject of Malayalam, pursuant to an interview conducted in that behalf on 5.6.1997. The petitioner herein (Sri.Tony K.Raphael) has been included in the rank No.6 thereof and one Smt.R.S.Sheeja and Sri.Raghu Kumar are included in rank No.1 and 18 in Ext.P-4, and thereupon various candidates including the petitioner as well as the above said two incumbents, were given contractual appointments as Guest Lecturers in the Malayalam Department of the University from 10.6.1997 onwards. Later, in pursuance of the aforementioned regular selection notification dated 5.9.1997, the University had published Ext.P-5 rank list dated 21.5.1998 in respect of the candidates who were selected pursuant to the said regular selection process initiated as per notification dated 5.9.1997, in compliance with the requirements of the Act and the statutes, for regular appointments. One Smt.R.Geetha Devi, the aforementioned Smt.R.S.Sheeja, the petitioner herein and the aforementioned Sri.G.Raghukumar, are included in Ext.P-5 regular rank list as Sl.Nos.25,36,39 and 41 respectively therein. It is not in dispute that the respondent University could make only 22 appointments from the said list. It is brought to notice by the

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W.P.(C).Nos.9281 & 8625 of 2012 5 respondent University that candidates with Rank Nos. 1 to, 14,23,32,34,37,44,48 and 50 included in Ext.P-5 regular rank list are the 22 candidates who were given such regular appointments to the post of lecturer in Malayalam in the respondent University, after following the rotation for open competition turns and community reservation turns etc. The aforementioned candidates like rank.nos..25,36,39 (petitioner), 41 in Ext.P-5 could not be given regular appointments, due to lack of sanctioned posts in the University. However, the various contractual appointees referred to earlier herein above including the said incumbents like rank nos.25,36,39,41 of Ext.P-5, were continued on contractual basis, in view of the demand of teaching requirements to meet with the workload of teaching students who are admitted to the University courses from time to time. So, it appears that due to financial constraints or such other grounds of expediency, the respondent University did not formally sanction such required teaching posts but there was heavy requirement of teachers even beyond the formally sanctioned posts, in view of the huge teaching workloads for teaching the various students who were admitted to the University. Thus it is in view of these aspects that, such contractual

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W.P.(C).Nos.9281 & 8625 of 2012 6

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appointees like the petitioner and the other aforementioned incumbents were continued for a long time to meet with the teaching requirements of students from time to time. It is also not in dispute that it is the practice of the University that the contractual appointments are formally terminated during the semester break and then candidate like the petitioner have been re-engaged after the commencement of the new semester. So now, it is disclosed before this Court that though there has been some artificial break in the service of such contractual appointees like the petitioner, they have been continuously engaged as contractual appointees by the University authorities concerned, in view of the teaching workload requirements in the University.

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It is pertinent to note that Rank No.25 of Ext.P-5 rank list (one Smt.R.Geetha Devi) is not included in Ext.P-4 rank list for contractual selection. Rank No.36. viz., Smt.Sheeja R.S, Rank No.39 petitioner herein and Rank No.41, viz., Smt.Dr.G.Raghu Kumar, were so included as Rank Nos.1,6 and 18 of Ext.P-5 regular ranklist published in pursuance of the regular selection notification dated 5.6.1997, are also included as Rank Nos.1,6, and 18 respectively in Ext.P-4 rank list for contractual appointees. All these incumbents

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W.P.(C).Nos.9281 & 8625 of 2012 7

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mentioned above including the petitioner had so continued in the contractual service since June 1997 onwards.

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The regular selection initiated as per notification dated

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5.6.1997 which culminated in Ext.P-5 regular rank list dated 21.5.1997, was challenged by candidates who are not selected in that selection process in various writ petitions and all those writ petitions, except, the one filed by the aforementioned one Smt.R.S.Sheeja were dismissed by this Court. All these aforementioned incumbents including the petitioner, except Smt.R.S.Sheeja had so continued in service without the intervention of any judicial orders and these incumbents including the petitioner herein had continued due to the voluntary decision of the University

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Authorities concerned. But in the writ petition filed by Smt.R.S.Sheeja, this Court had initially granted interim stay of her proposed termination from service and later this Court finally disposed of her writ petition (viz, O.P.No.9613 of 1998) as per judgment dated 27.11.2002, in her favour holding that in the special facts and circumstances of that case, the University shall confirm her service, if she is not otherwise disqualified and her services were hitherto satisfactory. It is brought to notice that

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W.P.(C).Nos.9281 & 8625 of 2012 8

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Smt.R.S.Sheeja, was included as Rank No.1 in Ext.P-4 herein and she had also secured very high position in the first regular selection process initiated by the University which was set aside by this Court earlier and that out of the total index marks in the impugned selection process therein of 75, she had secured more than 50 marks but that she was placed at a low position (viz., Rank No.30) in Ext.P-5 herein as she was awarded very low marks in the interview. Further, that after her initial regular appointment in 1994 (which was later set aside by the Division Bench of this Court as stated above), she had secured selection and appointment in a reputed Aided affiliated college and though she had secured appointment in the University in the year 1994, she did not accept that offer from the College etc. In view of the peculiar facts and circumstances of that case, the Division Bench of this Court disposed of O.P.No.9613 of 1998 in her favour by directing the respondent Sanskrit University to confirm her service if she is not otherwise disqualified and if her service is hitherto satisfactory, etc as stated above. It is pointed out that the review petition filed against the said judgment in O.P.No.9613 of 1998 was dismissed and later the SLP filed against the said judgment was also dismissed as withdrawn and

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W.P.(C).Nos.9281 & 8625 of 2012 9

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thereafter Smt.R.S.Sheeja was regularized in service by granting her appointment as per proceedings dated 5.1.2012 of the respondent University.

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While things stood so, the aforementioned Dr.G.Raghu Kumar (who is Rank No.41 in Ext.P-5) had approached the Petitions Committee of the State Legislature for ventilating his grievances in the matter of regularization of his services in the University and the Legislative Petition Committee as per Ext.P-9 proceedings dated 22.2.2011, after hearing both sides had directed the University to regularize the service of Dr.G.Raghu Kumar in the teaching service of the University. The University thereupon had passed Ext.P-10 proceedings dated 1.3.2001 ordering the regularization of the said Dr.G.Raghu Kumar as Assistant Professor in Malayalam with effect from 1.3.2001. The aforementioned Dr.R.Geetha Devi (Rank No.25) had also approached the University requesting that her services should also be regularized in view of her long continuance as Guest Lecturer in the University. She had also filed a writ petition praying for directions in the matter of regularization in service in the University. The Syndicate of the respondent University as per Ext.P-6 proceedings dated 17.3.2011, after considering the

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W.P.(C).Nos.9281 & 8625 of 2012 10

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recommendations of the Standing Counsel for the Syndicate and staff, had resolved to regularize the service of Dr.R.Geetha Devi as Assistant Professor in Malayalam and in pursuance thereof, the respondent University had passed Ext.P-7 proceedings dated 20.4.2011 ordering the regularization of Dr.R.Geetha Devi as Assistant Professor in Malayalam with effect from 20.4.2011. In view of Exts.P-6 and P-7 herein, this Court recorded the issuance of those orders and had disposed of W.P.(C).No.25893 of 2010 filed by her as per Ext.P-8 judgment dated 27.5.2011. A Research Scholar of the respondent University challenged the aforementioned regularization in service of Dr.Geetha Devi and Dr.G.Raghu Kumar by filing writ petitions, W.P.(C).No.10582 of 2011 and W.P.(C). No.18129 of 2011 praying for directions from this Court for quashing the said orders of regularization granted in favour of those incumbents. This Court as per Ext.R-1(a) judgment rendered on 27.8.2013 had allowed those writ petitions and had set aside the aforementioned orders of regularization of service of the aforementioned Dr.Geetha Devi and Dr.G.Raghu Kumar. The said regularized candidates who were so detrimentally affected by Ext.R1 (a) judgment, had preferred writ appeals W.A.No. 1449 of 2013

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W.P.(C).Nos.9281 & 8625 of 2012 11

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(arising out of W.P.(C).No.18129 of 2011) and W.A.No.1475 of 2013, (arising out of W.P.(C).No.10582 of 2011) before the Division Bench of this Court. The Division Bench of this Court finally disposed of those writ appeals filed by those regularized candidates as per Ext.P-22 judgment rendered on 18.6.2015 and has held that the regularization of those two incumbents (viz.,Dr. R.Geetha Devi and Dr.G.Raghu Kumar) come within the parameters for regularization as enunciated in para 53 of the celebrated Uma Devi (3) case, in Secretary, State of Karnataka and others v. Uma Devi (3) and others reported in 2006 (4) SCC 1 as well as paras 41 to 44 of the ruling of Apex Court in State of Jharkhand and others v. Kamal Prasad and Others reported in 2014 (7) SCC 223. Accordingly, this Court set aside Ext.R-1 (a) judgment of the learned single Judge and had dismissed those writ petitions and had upheld the regularization in service of those two appellants therein.

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The petitioner herein had submitted Ext.P-11 representation before the respondent University authorities concerned submitting that he is identically placed as the aforementioned Dr.R.Geethadevi and Dr.G.Reghu Kumar, inasmuch as those candidates are having rank Nos.25 and 41 in Ext.P-5,

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W.P.(C).Nos.9281 & 8625 of 2012 12

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whereas the petitioner herein is assigned rank No.39 in Ext.P-5 and that he has certainly a better right for regularisation than Dr.G.Reghu Kumar, inasmuch as he is assigned higher rank in Ext.P-5 compared to the said candidate. Accordingly, the petitioner requested that he should also be given the benefit of regularisation by extending identical treatment to that accorded to the aforementioned two incumbents, who were given regularisation. This Court, as per Ext.P-12 judgment dated 4.11.2011 in W.P.(C). No.28855/2011 filed by the petitioner herein, had directed the competent authority of the University to consider the request of the petitioner for regularisation in service and take appropriate decision in the matter within three months, etc. In pursuance thereof, the respondent University authorities had rejected the request of the petitioner for regularisation in service as per Ext.P-13 proceedings of the syndicate of the University taken on 18.2.2012 (item No.29 thereof) and had communicated the said decision as per Ext.P-14 proceedings dated 23.3.2012 informing the petitioner that his request for regularisation cannot be acceded to by the respondent University. It is these orders of rejection that the petitioner has challenged in the Writ Petition and the prayers of the above said Writ

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W.P.(C).Nos.9281 & 8625 of 2012

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Petition are as follows:

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“i) issue a writ of certiorari or any other appropriate writ, order or direction calling for Exts.P13 & P14 and quash the same.

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ii) Declare that petitioner is eligible and entitled for regularisation of his service as Lecturer (now designated as Assistant Professor) on similar lines with Exts.P7 & P10;

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iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 1^st respondent to regularise the services of the petitioner as Lecturer (Assistant Professor) on similar lines with Exts.P7 & P10 and grant him all consequential benefits;

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iv) issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;

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v) award cost to the petitioner.”

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The University has resisted the contentions and pleas of

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the petitioner by filing a counter affidavit dated 14.11.2012 in this case. Therein it is contended that the University is not empowered to regularise the services of the incumbents like the petitioner herein going by the provisions of the University Act and the Statutes framed thereunder and that he is not a regular teaching faculty of the University and that he has no continuous service. It is pointed out that the petitioner cannot claim the benefit of the similar treatment that was accorded to aforementioned Dr.R.S.Sheeja, as the judgment in her case was rendered in the peculiar facts and circumstances of that case. Further, it is contended that the

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W.P.(C).Nos.9281 & 8625 of 2012 14

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petitioner is not similarly placed as Dr.R.S.Geethadevi and Dr.G.Reghu Kumar, inasmuch as the latter candidates were included in the regular selection that took place in the year 1997 (that was set aside by the Division Bench of this Court in the year 1996), whereas the petitioner was not included in the initial regular selection process that was initiated in the year 1994 and that therefore he cannot claim parity of treatment with those incumbents.

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The University had also filed an additional counter affidavit dated 7.1.2014, producing therewith the aforementioned judgment of the learned Single Judge of this Court in W.P.(C). No.18129/2011 as Ext.R-1(a), in which the orders of regularisation of Dr.G.Reghu Kumar and Dr.R.Geetha Devi were set aside by this

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Court and the University has also produced as Ext.R-1(b). The University has also therein produced in the said additional affidavit as Ext.R-1(d), the copy of the agreement dated 8.7.2013 entered into between the 1^st respondent University and the writ petitioner consequent to his contractual appointment, by which the University would contend that the petitioner has agreed that the said contractual appointment is limited for the particular period mentioned therein and that he will not claim any other benefits, etc.

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W.P.(C).Nos.9281 & 8625 of 2012 15

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Heard Sri.K.Jaju Babu, learned Senior Counsel instructed by Sri.Brijesh Mohan, learned counsel appearing for the petitioner; Sri.Arun.B.Varghese, learned Standing Counsel for the Sree Sankaracharya Sanskrit University appearing for respondent No.1 and the learned Government Pleader for respondent No.2 State.

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The Division Bench of this Court as per Ext.P-22 judgment dated 18.6.2015 in W.A.Nos.1449 & 1475 of 2013 has conclusively and categorically held that the appellants therein (viz., Dr.R.S.Geethadevi and Dr.G.Reghu Kumar) are entitled for the benefit to regularisation as envisaged in para 53 of Uma Devi's case reported in (2006) 4 SCC 1 as well as paras 40 to 44 of Kamal Prasad's case reported in (2014) 7 SCC 223. The main ground on which their Lordships of the Division Bench have so concluded is on the basis that both those candidates have been included as rank Nos.25 and 41 in the regular rank list (Ext.P-5 herein) published by the University on 21.5.1998 pursuant to the regular selection notification dated 5.9.1997 initiated in compliance with the mandatory provisions of the University Act and the Statues framed thereunder. Further, the Division Bench held that those appellants could not be accommodated by way of regular appointments

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W.P.(C).Nos.9281 & 8625 of 2012 16

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pursuant to Ext.P-5 rank list only on account of lack of formally sanctioned vacancies, inasmuch as the University authorities concerned had not formally sanctioned posts. But the Division Bench has equally found, after meticulous analysis of the facts and materials on record, that all those incumbents were appointed on contractual basis to meet with the actual teaching requirements of the University even before the issuance of that regular rank list and they were continued on contractual basis as guest lecturers even after the conclusion of that regular selection process, inasmuch as the actual teaching workload requirements in the University demanded the services of teachers to meet with the teaching requirements of students admitted to various courses in the University. Therefore, the Division Bench found that though there were teaching workload requirements of the University, it is only on account of not formally sanctioning teaching posts that the incumbents like those appellants could not be given regular appointments pursuant to Ext.P-5 regular rank list and that they have been continued continuously since 1997 in view of the perennial requirement of such teaching requirements of the University. Their Lordships of the Division Bench also found that

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W.P.(C).Nos.9281 & 8625 of 2012 17

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those appellants had not obtained any orders, whatsoever from any court, which in any way compelled the University to continue their services and their services were continued by the respondent University as contractual appointees due to the voluntary decision of the University authorities concerned in view of the actual heavy teaching workload requirements of the University, which necessitated such appointments even though formal orders in the matter of sanctioning such extra teaching posts were not passed by the authorities concerned. In view of the inclusion of those appellants therein in the regular rank list (Ext.P-5 herein) published pursuant to the regular selection notification dated 5.9.1997, which selection process was in full consonance with the mandate of the Act and the Statutes framed thereunder and as the University authorities were constrained to continue the services of those incumbents in view of the aforestated reasons, their Lordships of the Division Bench conclusively concluded, without the shadow of any doubt, that such continued appointments of those appellants therein cannot be termed as “illegal appointments” as envisaged in para 53 of Umadevi (3)'s case reported in (2006) 4 SCC 1 and at best, it could be treated only as “irregular appointments” as envisaged in the said ruling.

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W.P.(C).Nos.9281 & 8625 of 2012 18

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True that those contractual appointees would have some artificial breaks, which was imposed by the University during the break of semesters, presumably for fiscal austerity measures or some such other grounds of expediency, but the indisputable fact of the matter is that the additional teaching workload requirements, fully necessitated and constrained the University authorities to continue the services of such incumbents like Dr.R.Geethadevi,G.Reghu Kumar and the petitioners etc.

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The University has also pointed out before the Division Bench in Ext.P-22 judgment that the University was compelled to take recourse to such contractual method of appointments due to shortage of teaching staff and further that the present syndicate, which was then holding office, had not ordered regularisation of any incumbents and that its decision is to conduct recruitments fully in compliance with the provisions of the Act and University Statutes. On an elaborate consideration of the entire facts and circumstances of the case, the Division Bench conclusively held that those incumbents are entitled for the benefit of regularisation in terms of para 53 of Umadevi(3)'s case supra as well as Kamal Prasad's case supra. Though the Division Bench in Ext.P-22 judgment held that the

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W.P.(C).Nos.9281 & 8625 of 2012 19 Legislative Petition Committee did not have the jurisdiction to consider the question of regularisation in service of any incumbent, the Division Bench held, on an independent consideration by the court on the merits of the case, that the incumbent therein (viz., Dr.G.Reghu Kumar) is entitled for the benefit of regularisation as noted herein above.

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It would be pertinent to refer to Ext.P-22 judgment. Paras

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14 to 24 of Ext.P-22 Division Bench judgment read as follows:

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'14. The question that arises for consideration is whether the regularization of the service of the appellants in these cases ordered by the University could be sustained or not. It is true that in the judgment in Secretary, State of Karnataka v. Umadevi [2006 (4) SCC 1] Apex Court reiterated the principle that public appointment cannot be made otherwise than in compliance of the provisions of Articles 14 and 16 of the Constitution of India and that regularization cannot be ordered bypassing statutory rules of recruitment. However, while laying down the above principle, the Apex Court has also laid down an exception in paragraph 53 of the judgment which reads thus:

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“One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa, R.N.Nanjudappa and B.N.Nagarajan and referred to in para 15 above of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Government and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme.”

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15. Reading of the paragraph 53 shows that where irregular appointments, not illegal appointments, have been made, of duly qualified persons in duly sanctioned vacant posts and employees have continued to work for ten years or more without the intervention of orders of the Courts or Tribunals, the question of regularisation of service of such employees may have to be considered on merits as a one time measure. What is irregular appointment has been explained in paragraph 15 of the judgment where the principles laid down by the Apex Court in R.N.Nanjundappa v. T.Thimmiah and another (1972) 1 SCC 409 has been quoted and this paragraph reads thus:

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“Even at the threshold, it is necessary to keep in mind the distinction between regularisation and conferment of permanence in service jurisprudence. In State of Mysore v. S.V.Narayanappa this Court stated that it was a misconception to consider that regularisation meant permanence. In R.N.Nanjundappa v. T.Thimmiah this Court dealt with an argument that regularisation would mean conferring the quality of permanence on the appointment. This Court stated: (SCC pp. 416-17, para 26)

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“Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.”

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16. The reading of the above paragraph shows that an appointment will be an irregular one, if it is made without complying with the procedure or manner that is prescribed in making such appointment. It is seen that these principles laid down by the Apex Court in Umadevi's case were followed in subsequent judgments of the Apex Court and one such judgment reported in State of Jharkhand and Others v. Kamal Prasad and Others (2014) 7 SCC 223 where, after extracting para 53 of Umadevi's judgment, it has been held thus:

¶108

“40. We have heard the factual and legal contentions urged by the learned Senior Counsel for both the parties and carefully examined the findings and reasons recorded in the impugned judgment with reference to the evidence produced on behalf of the respondent employees. The evidence on record produced by the respondent employees would clearly go to show that they have been rendering services in the posts as ad hoc Engineers since 1987 and have been discharging their services as permanent employees with the appellants. Additional 200 posts were created thereafter by the State Government of Bihar. However, the respondents continued in their services as ad hoc employees without any disciplinary proceedings against them which prove that they have been discharging services to their employers to their satisfaction.

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W.P.(C).Nos.9281 & 8625 of 2012

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41. The learned Senior Counsel on behalf of the appellants have failed to show as to how the interim orders upon which he placed strong reliance are extended to the respondents which is not forthcoming except placing reliance upon the decision of this Court in Amrit Lal Berry, without producing any record on behalf of both the State Governments of Bihar and Jharkhand to substantiate the contention that the interim orders obtained by the similarly placed employees in the writ petitions referred to supra were extended to the respondent employees to maintain parity though they have not obtained such interim orders from the High Court. Therefore, the learned Senior Counsel has failed to prove that the respondents have failed to render continuous services to the appellants at least for ten years without the intervention of the orders of the court, the findings of fact recorded by the Division bench of the High Court is based on record, hence the same cannot be termed as erroneous in law. In view of the categorical finding of fact on the relevant contentious issue that the respondent employees have continued in their service for more than 10 years continuously therefore, the legal principle laid down by this Court in Umadevi (3) case at para 53 squarely applies to the present cases. The Division Bench of the High Court has rightly held that the respondent employees are entitled for the relief, the same cannot be interfered with by this Court.

¶112

42. In fact, the Division Bench of the High Court by regularising the respondent employees vide its impugned order has upheld the constitutional principles laid down by this Court in Olga Tellis, the relevant para of which reads as under: (SCC pp. 571-72, para 32)

¶113

“32. As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive

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W.P.(C).Nos.9281 & 8625 of 2012

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a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the village is the struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Barsky that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. 'Life', as observed by Field, J. in Munn v. Illinois, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P.

¶117

43. In view of the foregoing reasons which we have assigned in this judgment and in upholding the findings and reasons recorded by the Division Bench of the High Court in the impugned judgment, it cannot be said that the findings and reasons recorded by the High Court in arriving at the conclusions on the contentious issues that arose for its consideration can be termed either as erroneous or error in law.

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44. In view of the foregoing reasons, we are inclined to conclude that the High Court was legally correct in extending the benefits of Umadevi (3) case to the respondent employees. Therefore, we answer Points (i) and (ii) in favour of the respondent employees.”

¶119

17. Bearing in mind the above principles, the facts of these cases need to be seen. Appellants in these cases are persons who satisfied the eligibility that was prescribed by the University in the notifications that was issued by it on 5.9.1997. In the selection process that ensued rank list was published and in the rank list, the appellants were included at Sl.No.25 and 41 respectively. However, the University appointed only 22 candidates from this rank list, and therefore the appellants did not get an opportunity for regular employment. In spite of the regular appointments made from the ranked list, the University still had vacant posts and University required the services of teaching staff. It was therefore that contract appointments were made by the University and contract period was extended from time to time. This arrangement continued till by orders dated 1.3.2011 and 20.4.2011, the services of the appellants in these cases were regularised by University. Nobody has a case that any order passed by any Court or Tribunal enabled the appellants to continue in service.

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18. This, therefore, means that the appointments made by the University, at best, were only irregular appointments and the contract appointees continued in service for about 20 years as of now and they are now about 53 years of age. Even today University has no case that their services are unsatisfactory. In such a situation, we are of the view that the appellants were fully entitled to the benefit of the exception carved out by the Supreme Court in paragraph 53 of the judgment in Umadevi's case . If that be so, they were entitled to be regularised in service.

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W.P.(C).Nos.9281 & 8625 of 2012

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19. It is true that the appellant in W.A.1475/13 was regularised pursuant to the directions in the Petitions Committee in the Kerala Legislature and the learned Single Judge held that the Petitions Committee did not have power to issue such any directions. To contend that it was within the power of the Petitions Committee to issue such a direction, learned counsel for the appellant referred us to the Rules of Procedure and Conduct of Business in the Kerala Legislative Assembly and in particular, Clause 224 thereof. Clause 224 deals with the functions of the Committee on Petitions and it provides that the manner in which the Committee should deal with the petitions. However, the proviso to the Rule excludes certain category of petitions and among which Clause 4 is representations on matters which fall within the cognizance of a court of law having jurisdiction in any part of India or a court of enquiry or a statutory Tribunal or authority or a quasi-judicial body or a commission.

¶124

20. It cannot be disputed that if a person has a claim for regularisation of his services, remedy lay before this Court or other appropriate Court or Tribunal and if that be so, such an issue stood excluded from the jurisdiction of the Petitions Committee by virtue of aforesaid provisions referred above. We were also referred to the Division Bench judgment of this Court in W.A.233/07 and connected cases where the direction issued by the Petitions Committee preventing the Sub Registrar from registering documents was held to be beyond the powers of the Petitions Committee. Therefore, we approve the view of the learned Single Judge that Petitions Committee in the Kerala Legislative Assembly could not have directed the regularisation of services of the appellant in W.A.1475/13.

¶125

21. But, however, irrespective of the above finding, since the appellant in W.A.1475/13 is eligible to the benefit of paragraph 53 of Umadevi's case, this conclusion of ours cannot have any impact on the relief that he is entitled.

¶126

22. It is true that the counsel for the first respondent contended that appointments made otherwise than in accordance with the statutory provisions and the provisions of the University Statutes, are illegal and that therefore no rights were conferred on the appointees. In so far as this contention of the learned counsel is concerned, as we have already stated the rank list was prepared and finalised strictly in compliance with the statutory provisions. It is thereafter the contract appointments were made from the rank list. Therefore, such appointments cannot be a total illegal one, but at best were irregular as contemplated in paragraph 15 of Uma Devi's judgment (supra).

¶127

23. Learned counsel for the first respondent submits that this is a case of misfeasance in public office and the learned counsel relied on the Apex Court decisions in Common Cause, A Registered Society v. Union of India and Others (1996) 6 SCC 530 and Shivsagar Tiwari v. Union of India and Others (1996) 6 SCC 558. In so far as these cases are concerned, the alleged tort was committed long in the past and therefore tort-feasors are not before us nor are they identified by any one. There is no case that the present Syndicate or Vice Chancellor has committed any such tort. In such a situation, we are not in a position to apply the principles laid down by the Apex Court in the decisions cited above.

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W.P.(C).Nos.9281 & 8625 of 2012

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24. Therefore, we uphold the impugned orders, which are dated 1.3.2011 in the case of the appellant in W.A.1475/13 and 20.4.2011 in the case of the appellant in W.A.1449/13. The judgment of the learned Single Judge is set aside.'

¶131

12. It would be pertinent to note that the Full Bench of this

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Court in case Peter v. Sara reported in 2006(4) KLT 219 (FB) has held

¶133

therein, more particularly, in para 5 thereof, that adherence to precedents is a matter of judicial discipline and ordinarily a court of co-ordinate jurisdiction is expected to follow the decision of a coequal Bench, etc. Paras 5 to 7 of the said ruling of the Full Bench in

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Peter's case supra read as follows:

¶135

"5. Adherence to precedents is a matter of judicial discipline. It is the linchpin of justice system. It is intended to secure uniformity and certainty on legal positions, based on the principle of judicial comity, otherwise it brings law as well as the system to disrepute, if not the Court. Thus ordinarily, a court of coordinate jurisdiction is expected to follow the decision of a coequal Bench. Refusal is only exception and to be exercised in exceptional circumstances, not merely because a different view is possible, but because the view expressed by the court of coordinate jurisdiction is not merely wrong, but so clearly and seriously wrong that it cannot logically exist or when it is productive of public hardships or inconvenience, as observed by the Supreme Court in M.Chhagganlal v. Greater Bombay Municipality (AIR 1974 SC 2009). Thus where a precedent is not followed and another decision rendered, in view of the conflicting position, the legal antinomy must be resolved by a Division Bench, Full Bench, Larger Bench, as the case may be, where one view would have to be formally overruled. Reversal occurs when the same decision is taken on appeal and is reversed by the appellate court. Overruling occurs when the appellate court/larger Bench declares in another case that the precedent case was wrongly decided and hence not to be followed. A decision is confirmed by the appellate court in the same case and a principle is affirmed when the same is referred before the appellate court or before a court consisting of larger strength in another case. Decisions of co-equal bench are either followed or distinguished. A decision is distinguished when a

¶136

W.P.(C).Nos.9281 & 8625 of 2012

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precedent is obnoxious or when the same is inapplicable to the fact situation arising in the case. Thus by distinguishing, the precedential value of the decision distinguished is not lost. However, as cautioned by Prof.P.J.Fitzgerald in the IVth edition of Salmond on Jurisprudence, “Over-subtle distinguishing itself leads to uncertainty and brings the law into disrepute.” Decisions of other courts with persuasive force are either followed, or not followed for reasons to be noted in the judgment. Dissenting is an expression and process of disagreement with the view/reasoning in the same judgment either by the Bench partner or the minority.

¶139

Though there are several decisions with regard to the propriety of the Single Bench and Division Bench making incompetent references to the Larger Bench, since certain fundamental questions are also raised with regard to the interpretation of S.6 of the Kerala High Court Act, 1958, we shall examine the question on both aspects of propriety as well as legality. S.3 of the Kerala High Court Act, to the extent reads as follows:-

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“ 3. Powers of Single Judge :- The powers of the High Court in relation to the following matters may be exercised by a Single Judge provided that the Judge before whom the matter is posted for hearing may adjourn it for being heard and determined by a Bench of two Judge s.”

¶141

S.4 of the Act dealing with the powers of the Bench of two Judges, to the extent relevant reads as follows :-

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“4. Powers of a Bench of two Judges-- The powers of the High Court in relation to the following matters may be exercised by a Bench of two Judges, provided that if both Judges agree that the decision involves a question of law they may order that the matter or question of law be referred to a Full Bench.....”

¶143

S.6 of the Act reads as follows :-

¶144

“ 6. Cases to be heard by Full Bench under direction by Chief Justice:- Notwithstanding anything contained in this Act, the Chief Justice may direct that any matter be heard by a Full Bench. ”

¶145

The expression 'adjourn' appearing in S.3 has to be understood and given a narrow and restricted meaning as 'refer' as held by the Larger Bench consisting of seven Judges of this Court in the decision reported in Babu Premarajan v. Superintendent of Police (2000 (3) KLT 177 (FB)). It is also held that reasons are to be stated for such adjournment of the case by the Single Judge for being heard by the Division Bench. Such a power under S.3 is not intended to avoid an otherwise inconvenient situation requiring deeper analysis etc., lest it should amount to abdication of judicial functions as held by the Larger Bench in Babu Premarajan's case (supra). Merely

¶146

W.P.(C).Nos.9281 & 8625 of 2012

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because a question raised in a case is important, the same cannot be ordered to be placed before the Division Bench; the Single Judge is empowered, expected and bound to deal with such questions also. The expression 'question of law' appearing in S.4 in the matter of exercise of power by a Division Bench for referring a matter to the Full Bench, was considered by the Full Bench in the decision reported in Cochin Malabar Estates & Industries v. State of Kerala (2002 (1) KLT 588 (F.B.)) wherein it has been held that the provision is not intended to enable the Division Bench to refer every question by agreement between the Judges to the Full Bench. On the contrary, “In our view, S.4 of the Kerala High Court Act is intended to confer power on the Division Bench to refer a question of law to a Full Bench, where the Division Bench finds itself in a situation of being bound by the observations of an earlier Division Bench about the correctness of which it entertains serious doubt...... Another situation we may contemplate where a Division Bench may refer the matter to a Full Bench is when there are conflicting views expressed by Division Benches and the state of law has become uncertain.” The Full Bench also in unmistakable terms clarified that merely because Single Judge had expressed a different opinion, the Division Bench cannot refer the matter to the Full Bench. The Division Bench ought to overrule the decision, if required in such circumstances. To quote,

¶149

“It is an elementary proposition of the doctrine of precedents that law laid down by a single Judge is capable of being dissented from and overruled by a Division Bench. Thus, if a Division Bench comes across a proposition of law laid down by a single Judge, and if it differs therefrom, nothing prevents the Division Bench from dissenting therefrom or overruling the judgment of a single Judge.”

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In para 8 the Full Bench further held that only in limited circumstances as envisaged in the provision contained in Sec.3 of the Kerala High Court Act and that too, after stating the reasons thereof, is a reference by a Single Judge competent to the Division Bench and except in such a situation, a Single Bench is normally bound by the decision of another Single Bench and definitely bound by the Division

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Bench and Larger Bench decisions of the same court and that merely because a Single Judge/Division Bench entertains another view or

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W.P.(C).Nos.9281 & 8625 of 2012 27

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merely because another view is possible, the judgment shall not be distinguished, etc. The Full Bench of this Court in Peter's case supra

¶154

had also referred to a Division Bench ruling of this Court in the case Kannappan v. R.T.O. Ernakulam reported in 1988(1) KLT 902, para 2 thereof, which reads as follows:

¶155

'2 . There can be no "hesitation" for a single Judge to follow a Division Bench ruling binding on the single Bench for, he is bound in law to follow the Division Bench decision. The fact that the views of the learned Judge did not find acceptance at the bands of the Division Bench does not mean that whenever the identical question is raised before the learned Judge, the matter has to be again referred to a Division Bench till the views of the single Judge are endorsed by a Division or Full Bench. Brought up in the highest traditions of judicial discipline, this court cannot at any time swerve from the path of judicial decorum and propriety. We shall content ourselves by a quotation from the decision of the Supreme Court in Asstt. Collector, C. E., Chandran Nagar v. Dunlop India Ltd. (AIR. 1985 SC 330) thus:-

¶156

"We desire to add and as was said in Cassel and Co. Ltd. v. Broome. 1972 AC 1027 we hope it will never be necessary for us to say so again that 'in the hierarchical system of Courts" which exists in our country, 'it is necessary for each lower tier', including the High Court, 'to accept loyally the decisions of the higher tiers'. "It is inevitable in a hierarchical system of Courts that there are decisions of the Supreme Appellate tribunal which do not attract the unanimous approval of all members of the judiciary......But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted". (See observations of Lord Hailsham and Lord Diplock in Broome v. Cassell.) The better wisdom of the court below must yield to the higher wisdom of the court above. That is the strength of the hierarchical judicial system".'

¶157

14. Further a Division Bench of this Court in Josekutty v.

¶158

State of Kerala reported in 2013 (1) KHC 241, has held in para 6 thereof that a Single Judge is bound to follow the Division Bench decision and a reference to the Division Bench decision is not called

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W.P.(C).Nos.9281 & 8625 of 2012 28

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for, on the ground that the views of the Division Bench are not in agreement with the views of the Single Judge concerned. Their Lordships of the Division Bench in Josekutty's case supra had also relied on the ruling of the Division Bench in Kannappan's case supra as well as the ruling of the Full Bench in Peter's case supra. The legal position in this regard, as adumbrated above, is too well established by now and needless to say, this Court sitting in Single is bound to follow the Division Bench judgment rendered in this matter as per Ext.P-22. The judgment of the Division Bench at Ext.P-22 have, not only precedential value, but is an adjudication by the Division Bench on a similar or identical fact situation concerning contractual appointments made during the same time as that of the petitioners and that too, in the same Department concerned. The appellants therein were assigned rank Nos.25 and 41 of Ext.P-5 regular rank list, whereas the petitioner herein has been assigned rank No.39 therein. True that the appellants therein were also the beneficiaries of the regular selection process that was initiated in 1994, which was set aside by the Division Bench of this Court in the judgment reported in 1996 (2) KLT 378 and the writ petitioner herein was not included in the said regular selection process that was

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W.P.(C).Nos.9281 & 8625 of 2012 29

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initiated in the year 1994, which was rescinded by this Court. Noninclusion of the petitioner's name in the selection process in the year

¶163

1994, which was set aside by the Division Bench of this Court, will not in any manner dilute or whittle down the claim of the petitioner that he is identically placed or similarly situated as the appellants in Ext.P-22. It may be noted that the so-called regular selection process initiated in the year 1994, which was set aside in its entirety by the Division Bench of this Court in the ruling reported in 1996 (2) KLT 378, as a matter of fact, has not in any manner weighed with the Division Bench in Ext.P-22 judgment in holding that those appellants are entitled for the benefit of regularisation as envisaged in the aforecited Apex Court rulings. As a matter of fact, the said selection process initiated in the year 1994 was rescinded by this Court and therefore, inclusion therein or exclusion therefrom is of no consequence as regards the crucial issue as to whether the incumbents concerned are entitled for benefit of regularisation as envisaged in the Apex Court rulings cited above. The foundation on the basis of which their Lordships of the Division Bench held in favour of the appellants in Ext.P-22 judgment is that those incumbents were regularly selected candidates pursuant to the

¶164

W.P.(C).Nos.9281 & 8625 of 2012 30

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regular selection process initiated as per notification dated 5.9.1997, which culminated in Ext.P-5 regular rank list dated 21.5.1998 and that those incumbents concerned were engaged on contractual basis even thereafter continuously in view of the actual teaching workload requirements of the University and the other aspects mentioned hereinabove. Since those appellants were included as regularly selected candidates in Ext.P-5 regular rank list and since they were continuously continued in contractual service in view of the perennial nature of the teaching workload requirements, the Division Bench has concluded that those appointees, who were the beneficiaries of Ext.P-5 rank list, can at best be termed as “irregular appointees” and not as “illegal appointees” as envisaged in pare 53 of Umadevi (3)'s case as well as the other rulings of the Apex Court cited in para 53 of Umadevi's case. This is the essence and substance of the verdict of the Division Bench at Ext.P-22. In this view of the matter, this Court has no hesitation to hold that inclusion or exclusion from the initial rank list of the year 1994, which was rescinded by this Court, is of no consequence. Therefore, though the petitioner was not included in the 1994 selection process, which was rescinded by the Division Bench of this Court, that would not make

¶166

W.P.(C).Nos.9281 & 8625 of 2012 31

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any material difference in deciding the issue as to whether he is a identically placed or similarly situated as the appellants in Ext.P-22 judgment. To determine that issue, it is only to be seen that the appellants therein were included as rank Nos.25 and 41 of Ext.P-5, whereas the petitioner was duly included as rank No.39. Going by the facts and circumstances narrated herein above, the petitioner's case is in no way distinct from the case of the appellants in Ext.P-22 judgment as regards his claim for regularisation in service. Moreover, he is having a higher ranking position in Ext.P-5 regular rank list compared to Dr.G.Raghu Kumar. It is also not in dispute that a regular vacancy of Asst.Professor is even now available and so the petitioner can be regularised in that vacancy. It is also admitted by

¶168

the University that except the petitioner, there are no other candidates in Ext.P-5 rank list are working as contractual appointees. Therefore, in this view of the matter, this Court is constrained to hold that the case of the petitioner herein is identically placed or similarly situated as the appellants in Ext.P-22 judgment and therefore he is entitled for the benefit of regularisation as envisaged in Umadevi's case supra and Kamal Prasad's case supra, as conclusively held by the Division Bench in Ext.P-22 judgment.

¶169

W.P.(C).Nos.9281 & 8625 of 2012 32

¶170

In the view that this Court has already taken based on Ext.P-22 judgment, it is not necessary to entertain the other contentions raised by the petitioner that he should be given same treatment as the one given to Dr.R.S.Sheeja, who was the beneficiary of the Division Bench judgment of this Court dated 27.11.2002 in O.P.No.9613/1998. That apart a perusal of the said Division Bench judgment of this Court in O.P.No. 9613/1998 would show that what weighed with the Division Bench therein was the facts of a different nature altogether, inasmuch as she was found to have very high index marks in the selection process but that her ranking came down to a lower position at rank No.36 of Ext.P-5 herein only because of the extremely low marks awarded to her in the interview. Moreover, it is also brought to notice that she had a higher ranking position in the initial selection process initiated in 1994 as well as rank No.1 in Ext.P-4 list, but that she had secured a lower position in Ext.P-5 rank list only because of the extremely low marks that was awarded to her in the interview by the selection committee. In the light of these circumstances that was brought to the notice of this Court, this Court has no hesitation to hold that the said judgment rendered by this Court in Dr.R.S.Sheeja's case was rendered in the peculiar facts and

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W.P.(C).Nos.9281 & 8625 of 2012 33

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circumstances of this case. Moreover, the said judgment was rendered prior to the pronouncement of the Apex Court ruling in Umadevi(3)'s case supra as well as Kamal Prasad's case supra and therefore their Lordships of the Division Bench were never called upon to decide as to whether the petitioner therein was entitled for the benefit of regularisation in terms of those subsequently rendered Apex Court rulings. Therefore, there is no worthwhile point in considering the contention of the petitioner based on the Division Bench judgment in O.P.No.9613/1998 rendered in Dr.R.S.Sjeeja's case. This is all the more so, because this Court has already now reached the conclusion that the petitioner herein is identically placed or similarly situated as the appellants Ext.P-22 judgment and therefore, he is entitled for the benefit of regularisation in terms of the Apex Court rulings referred to above, as conclusively held on exactly identical or similar fact situation by the Division Bench of this Court as per Ext.P-22 judgment. In this view of the matter, the impugned rejection proceedings at Exts.P-13 and P-14 passed by the respondent University will stand quashed.

¶173

In the light of all these aspects and in view of the aspects mentioned herein above that the petitioner is entitled for the benefit

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W.P.(C).Nos.9281 & 8625 of 2012 34

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of regularisation, it is ordered that the competent authority of the 1^st respondent University shall regularise the service of the petitioner as Assistant Professor of Malayalam in the University and formal orders in that regard shall be passed without much delay, at any rate, within a period of two months from the date of production of a certified copy of this judgment. As regards the prayer for consequential benefits, it is only be observed that after the respondent University formally issues the regularisation order, it is for the petitioner to submit necessary representation to the University on such aspects for consideration and decision thereon.

¶176

With these observations and directions, the aforecaptioned Writ Petition (Civil) stands finally disposed of.

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W.P.(C).No. 8625/2012

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Heard Sri.S.Muhammed Haneef, learned counsel appearing for the petitioner, Sri.Arun.B.Varghese, the learned Standing Counsel for the Sree Sankaracharya Sanskrit University appearing for respondent Nos.1 & 2.

¶179

The facts in this case are almost similar to the facts of

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the case in W.P.(C).No. 9281/2012, dealt with hereinabove.

¶181

The petitioner herein, who has all the qualifications for

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W.P.(C).Nos.9281 & 8625 of 2012 35

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appointment as Lecturer/Assistant Professor in Philosophy (as evidenced by Ext.P-8, on which there is no dispute by the respondents) was initially regularly appointed as Lecturer in Philosophy pursuant to the 1994 selection, which was set aside by this Court in the Division Bench judgment in 1994(2) KLT 378 and subsequently, pursuant to the regular selection notification dated 5.9.1997, he had participated in a regular selection process for appointment to the post of Lecturer in Philosophy and thereupon, he was duly included in Ext.R-1(b) regular rank list dated 17.8.1998, which was finalised in pursuance of the aforementioned regular selection notification, which was in full consonance with the provisions of the Act and the Statutes. The petitioner herein is rank No.12 in the said regular rank list. It is also not in dispute that 7 candidates in the rank list viz., rank Nos.1, 2, 3, 5, 6 and 19, had secured regular appointments pursuant to Ext.R-1(a) rank list. The petitioner could not secure regular appointment pursuant to that regular rank list only because of lack of formally sanctioned vacancies, but in view of the actual teaching workload requirements, he was continued on contractual basis before the selection process and after that continuously, except for artificial breaks, introduced

¶184

W.P.(C).Nos.9281 & 8625 of 2012 36

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during the inter-semester recess and he is even today continuing in service. He has continued in service, on the voluntary decision of the University and not based on any Court orders. On specific direction of this Court, the University has pointed out that there are two regular vacancies of Lecturer/Assistant Professor in Philosophy, which are now available in the University as of now, etc. It is also brought to notice that except the petitioner, there are no other persons included in Ext.R-1(b) rank list who are working as contractual appointees. The petitioner could thus be regularized in one such vacancy.

¶186

In view of the aspects dealt with in detail by this Court in the judgment in W.P.(C).No.9281/2012, this Court is of the considered opinion that the case of the petitioner herein is also identically placed or similarly situated as the petitioner in W.P.(C).No. 9281/2012. In this view of the matter, the impugned rejection order passed in this case by the respondent University authorities at Ext.P6 to the extent it affects the petitioner herein (Item No.53 therein) is quashed. It is held that the petitioner is entitled for the benefit of regularisation in service in terms of para 53 of Umadevi(3)'s case reported in (2006) 4 SCC 1, as well as paras 40 to 44 of the ruling in

¶187

W.P.(C).Nos.9281 & 8625 of 2012 37

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State of Jharkhand & Ors. v. Kamal Prasad & Ors. reported in (2014) 7 SCC 223, as held by the Division Bench of this Court in W.A.Nos.1449 & 1475 of 2013. In this view of the matter the competent authority of the respondent University will take immediate steps to regularise the service of the petitioner as Assistant Professor in Philosophy in the respondent University and pass necessary orders thereon so regularising the service of the petitioner as directed above, within a period of two months from the date of production of a certified copy of this judgment. As regards the prayer for consequential benefits, it is only to be observed that after the University formally issues the regularization order, it is for the petitioner to submit necessary representation to the University on those aspects for consideration and decision thereon.

¶189

With these observations and directions, the above Writ Petition (Civil) also stands finally disposed of.

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Sd/ALEXANDER THOMAS, JUDGE

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//TRUE COPY//

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PA TO JUDGE

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avk & sdk+

Dr. Tony K. Raphael v. Sree Sankaracharya University of Sanskrit

Case brief

What is this about?

What did the court decide?

Dr. Tony K. Raphael v. Sree Sankaracharya University of Sanskrit

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

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