Quashed

Dr.P.v.Madusoodhanan v. State of Kerala

Kerala HC7 Mar 2017WP(C)/13960/2011

Case brief

AI extract

What is this about?

The Court quashed an order allotting posts because it did not conform to previous Division Bench directions regarding the petitioners' qualifications. It directed the University to reconsider the entire issue concerning service duration, qualifications, and lien status for all three teachers within four months after hearing them.

What did the court decide?

The impugned order was quashed, and the competent authority was directed to reconsider the issue of appointment qualifications and seniority within four months after hearing all teachers.

Dr.P.v.Madusoodhanan Vs State of Kerala — Education and Admissions | Kerala HC (2017)

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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 DEVAN RAMACHANDRAN

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TUESDAY, THE 7TH DAY OF MARCH 2017/16TH PHALGUNA, 1938

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WP(C).No. 13960 of 2011 (T)

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PETITIONER :

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DR.P.V.MADHUSUDHANAN, TUTOR, VAIDYARATANAM AYURVEDA MEDICAL COLLEGE, OLLUR, THRISSUR-680 306.

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BY ADVS.SRI.S.RADHAKRISHNAN SMT.LATHIKA MOHAN

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,

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HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM-695 001.

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2. UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY.P.O., THENJIPALAM,, MALAPPURAM DISTRICT-676 505.

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3. CENTRAL COUNCIL OF INDIAN MEDICINE

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(MINISTRY OF HEALTH AND FAMILY WELFARE), REPRESENTED BY ITS SECRETARY, CCIM 61-65, INSTITUTIONAL AREA, JANAKPURI, NEW DELHI-110 058.

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4. THE DIRECTOR, AYURVEDA MEDICAL EDUCATION, GOVERNMENT OF KERALA,THIRUVANANTHAPURAM-695 001.

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5. THE MANAGER,

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VAIDYARATANAM AYURVEDA MEDICAL COLLEGE,OLLUR, THAIKKATTUSSERY, THRISSUR-680 306.

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6. DR.K.G.BEENA, LECTURER, DEPT. OF RACHANA SAREERAM, VAIDYARATANAM AYURVEDA MEDICAL COLLEGE, OLLUR, THAIKKATTUSSERY, THRISSUR-680 306.

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2/-

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-2-

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WP(C).NO.13960/2011

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*ADDL.R7 IMPLEADED

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*ADDL.R7: DR.PRAVEEN, TUTOR, DEPARTMENT OF RACHANA SAREERAM, VAIDYARATNAM AYURVEDA COLLEGE, OLLUR, THAIKKATTUSSERY, THRISSUR DISTRICT.

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*ADDL. R7 IS IMPLEADED AS PER ORDER IN IA.NO.14674/2011 DATED 06.09.2011

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*ADDL.R8 SUO MOTU IMPLEADED

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*ADDL.R8: KERALA UNIVERSITY OF HEALTH AND ALLIED SCIENCES, THRISSUR.

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*ADDL.R8 IS SUO MOTU IMPLEADED AS PER JUDGMENT DATED 7/3/2017.

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R1 & R4 BY GOVERNMENT PLEADER SMT. VIDHYA.A.C. R2 BY SRI.P.C.SASIDHARAN, SC, CALICUT UTY. SRI.SANTHOSH MATHEW,SC, R3 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R5 BY ADV. SRI.B.UNNIKRISHNA KAIMAL R6 BY ADV. SRI.ELVIN PETER P.J. ADDL.R7 BY SRI.P.RAVINDRAN,SENIOR ADVOCATE ADVS. SMT.APARNA RAJAN ADDL.R8 BY ADV. SRI.P.SREEKUMAR,SC,

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-03-2017,ALONG WITH WPC.NO.4309/2010 AND WPC.NO.8629/2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C).NO.13960/2011

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE ORDER ISSUED BY THE 5TH RESPONDENT DATED 08/11/1994.

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P2 COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT DATED 02/09/1995.

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P3 COPY OF THE ORDER DATED 19/12/1995.

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P4 COPY OF THE GAZETTE NOTIFICATION DATED 27/4/1999 NOTIFYING THE 1992 AMENDMENT.

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P5 COPY OF THE POST GRADUATE DEGREE CERTIFICATE OF THE 6TH RESPONDENT DATED 23/08/2003.

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P6 COPY OF THE ORDER PROMOTING THE 6TH RESPONDENT A LECTURER IN SAMHITHA AND SIDHANTHA DATED 26/02/1999.

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P7 COPY OF THE GO(MS) 143/96/H&FWD DATED 19/03/1996

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P8 COPY OF THE LETTER REQUESTING THE TEACHERS TO EXERCISE OPTION IN TUNE WITH THE 14 DEPARTMENTAL SYSTEM DATED 22/04/2000

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P9 COPY OF THE OPTION SUBMITTED BY THE 6TH RESPONDENT

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P10 COPY OF THE ORDER PASSED BY THE 5TH RESPONDENT DATED 30/05/2000

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P11 COPY OF THE ORDER NO.GAII/AI/2565/98 DATED 14/02/2005

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P12 COPY OF THE ORDER GAII/A1/2751/2007 DATED 15/02/2008

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P12(A) COPY OF THE ORDER DATED 07/05/2008 ISSUED BY THE 5TH RESPONDENT.

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P13 COPY OF THE JUDGMENT PASSED BY THE DIVISION BENCH OF THIS HONOURABLE COURT IN WA.NO.2385 OF 2009 DATED 22/12/2009

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P14 COPY OF THE ORDER NO.GO(MS) 577/2010/H&FWD DATED 06/09/2010

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P15 COPY OF THE ORDER DATED 26/06/1996 APPOINTING THE PETITIONER.

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P16 COPY OF THE ORDER ISSUED BY THE 5TH RESPONDENT NO.A1/1527/99/VAC DATED 04/01/2001 IS PRODUCED HEREWITH AND MARKED AS

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P17 COPY OF THE REPRESENTATION DATED 13/01/2010 SUBMITTED BY THE PETITIONER.

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P18 COPY OF THE ORDER PASSED BY THE UNIVERSITY NO.GAI/A1/174/2010 DATED 02/05/2011.

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2/-

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-2-

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WP(C).NO.13960/2011

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P19 COPY OF THE RELEVANT EXTRACT OF THE CCIM INSTRUCTIONS ON MINIMUM STANDARD OF EDUCATION.

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P20 COPY OF THE ORDER NO.A1/1318/2012/VAC DATED 24/06/2014

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P21 COPY OF THE RELEVANT EXTRACT OF THE INDIAN MEDICINE CENTRAL COUNCIL ACT, 1970

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P22 COPY OF THE REPRESENTATION DATED 13/02/2017

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RESPONDENT'S EXHIBITS:

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R6(A) COPY OF THE APPOINTMENT ORDER DATED 6/8/1991 OF THE 6TH RESPONDENT

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R6(B) COPY OF THE ORDER DATED 3/11/1994 ISSUED BY THE GOVERNMENT

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R6(C) COPY OF THE ORDER NO.541B1/D3/95/H&FWD DATED 17/6/1996 ISSUED BY THE GOVERNMENT

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R6(D) COPY OF THE ORDER DATED 26/02/1999 ISSUED BY THE 5TH RESPONDENT

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R6(E) COPY OF THE ORDER DATED 29/9/2001 ISSUED BY THE 2ND RESPONDENT

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R6(F) COPY OF THE DEGREE CERTIFICATE EVIDENCING ACQUISITION OF MD IN THE SAIYATHANTHRA OF THE 6TH RESPONDENT

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R6(G) COPY OF THE NOTIFICATION PUBLISHED IN THE GAZETTE DATED 29/6/1999 AMENDED THE REGULATIONS RELATING TO THE QUALIFICATIONS OF TEACHERS IN AYURVEDA COLLEGES.

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R6(H) COPY OF THE OFFICE NOTE DATED 22/4/2000 ISSUED BY THE PRINCIPAL OF THE 5TH RESPONDENT

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R6(I) COPY OF THE G.O(MS) NO.143/96/H&FWD DATED 19/03/1996 ISSUED BY THE GOVERNMENT

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R6(J) COPY OF THE RELEVANT PAGES OF REGULATIONS ISSUED BY THE 3RD RESPONDENT

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R6(K) COPY OF THE OPTION FORM DATED 15/05/2000 ISSUED BY THE 6TH RESPONDENT BEFORE THE 5TH RESPONDENT

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R6(L) COPY OF THE ORDER DATED 30/5/2000 ISSUED BY THE 5TH RESPONDENT

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R6(M) COPY OF THE ORDER DATED 14/02/05 TOGETHER WITH APPENDIX ISSUED BY THE 2ND RESPONDENT

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R6(N) COPY OF THE ORDER DATED 15/2/2008 ISSUED BY THE 2ND RESPONDENT

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3/-

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-3-

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WP(C).NO.13960/2011

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R6(O) COPY OF THE JUDGMENT DATED 10/8/2009 IN WPC.NO.7529/08 OF THIS HON'BLE COURT

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R6(P) COPY OF THE JUDGMENT DATED 22/12/2009 IN W.A.NO.2385/2009 OF THIS HON'BLE COURT

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R6(Q) COPY OF THE ORDER DATED 2/5/2011 ISSUED BY THE 2ND RESPONDENT

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R6(R) COPY OF THE ORDER DATED NO.GAII/83/1970/94 DATED 23/10/1996 ISSUED BY THE UNIVERSITY OF CALICUT.

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IA.NO.2920/2017 IN R6(R) COPY OF THE ORDER DATED 24/6/2014 ISSUED BY THE 5TH RESPONDENT.

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R6(S) COPY OF THE ORDER DATED 23/5/2003 ISSUED BY THE 4TH RESPONDENT AND THE OPTION STATEMENT ATTACHED TO THE SAME.

/TRUE COPY/

P.A.TO JUDGE

sts

DEVAN RAMACHANDRAN, J.

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=================== W.P.(C). No.13960 of 2011, W.P.(C). No.4309 of 2010 & W.P.(C). No.8629 of 2014

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======================= Dated this the 7^th day of March, 2017

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JUDGMENT

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The triagonal and cuneated polemic between three

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teachers, who claim rival and contested rights to various posts under the services of Vaidyaratnam Ayurveda Medical College, Ollur (hereinafter referred to as the College for short) is the foundational underpinning in these three writ petitions.

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Before dealing with the facts or delving into the factual details, I will point out that W.P.(C).1390/2011 has been filed by Dr.P.V. Madhusoodhanan, W.P.(C) No.4309/2010 has been filed by Dr.Praveen and W.P.(C).No.8629/2014 has been filed by Dr.K.G.Beena. Since all these cases involve substantially similar contentions; are seeking reliefs that are interconnected to each other and being based essentially on the same set of facts, I deem it appropriate that all the three

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are disposed of jointly herein. For the sake of convenience, I

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W.P.(C). No.13960 of 2011, W.P.(C). No.4309 of 2010 2 & W.P.(C). No.8629 of 2014

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take W.P.(C).No.13960/2011 as the lead case but will refer to the petitioners by their names in this judgment.

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To cut the long story short but without crippling the foundational facts, I notice that the three teachers were appointed as Tutors under the services of the college during the period from 1993 – 1994. However, Dr.Beena had already been working as a Tutor in the Vaidyaratnam P.S. Warrior Ayurveda College and according to her, she had applied for transfer from that institution to the present college. She asserts that, from the order appointing her to the college, it is perspicuous that she was appointed on a transfer and that, therefore, that her services in the erstwhile institution also had to be counted while reckoning her total service period.

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I must point out that this assertion of Dr.Beena is of pivotal importance in this case because every other controversy raised herein revolves around the question as to whether Dr.Beena was appointed in the college in the year

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W.P.(C). No.13960 of 2011, W.P.(C). No.4309 of 2010 3 & W.P.(C). No.8629 of 2014

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1994 or if she should be reckoned to have been appointed in the year 1991. This fact is crucial because if Dr. Beena is reckoned to have been appointed in 1991, then she would obtain full qualification and competence to be retained as a Lecturer and thereafter as a Professor in the college.

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Initially, the college did not have any specialities. It is only in the year 1996, by Ext.P7 order, that certain speciality departments were sought to be created in the college. Dr.Beena and Dr.Praveen were working in the department of

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Rachana Sareeram (Basic Principles), whereas Dr. Madhusoodhanan was working in the department of Koumarabhrutyam (Pediatrics). When the specialities were created, all the teachers in the college were offered an opportunity to elect, by way of making an option, to move to the department they were interested in. It appears that Dr.Praveen opted to continue in the Department of Rachana Sareeram and Dr. Madhusoodhanan opted to continue in the

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W.P.(C). No.13960 of 2011, W.P.(C). No.4309 of 2010 4 & W.P.(C). No.8629 of 2014

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Department of Koumarabhrutyam. However, Dr. Beena opted to move from Rachana Sareeram to Koumarabhrutyam. This is the genesis of the controversy.

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The option that was made by Dr. Beena, evident from Ext.R6(k), was accepted by the management and the University by Exts.R6(l) & (m) respectively. In Ext.R6(l), the management of the college ordered that since there were no post of vacancies in Koumarabhrutyam, as per the Central Government Regulations, Dr.Beena would be deemed to have a lien on a vacancy to arise in future in the said department. This, according to her, was approved by the University in Ext.R6(m). The learned counsel appearing for Dr.Madhusoodhanan asserts that this order was only provisional and that her lien was not finally approved. He maintains that this is obvious from that fact that the University thereafter issued an order, viz. Ext.P12, that Dr.Beena could not have staked claim, in the manner of a lien, to a post which

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W.P.(C). No.13960 of 2011, W.P.(C). No.4309 of 2010 5 & W.P.(C). No.8629 of 2014

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was non existent and to which she had no qualification to be appointed.

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Notwithstanding the above, on the strength of Ext.R6(l) and R6(m) and being aggrieved by Ext.P12, Dr.Beena approached this Court by filing W.P.(C).No.7529/2008 praying that one post from Kriya Sareeram (Anatomy) be shifted to the Department of Koumarabhrutyam. This writ petition was ordered, vide Ext.R6(o) judgment, directing that the post be so

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shifted. The judgment of the learned single Judge was however, appealed against by Dr.Madhusoodhanan by seeking leave to appeal which culminated in Ext.P13 judgment. The Division Bench set aside Ext.P12 and made certain directions to which I will come presently. I notice that the learned single Judge had in the judgment appealed against , viz., Ext.R6(o) directed that the college allot Dr. Beena to the Department of Koumarabhrutyam in accordance with the lien earlier recognized in her favour. The Division Bench does not appear

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W.P.(C). No.13960 of 2011, W.P.(C). No.4309 of 2010 6 & W.P.(C). No.8629 of 2014

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to have been engaged with the claim of Dr.Beena that she has a lien to be placed in the Department of Koumarabhrutyam, in any manner, but what appears to have been considered therein is the qualification of Dr. Beena and the question if she would obtain the benefit of the cut-off date of 14.05.1992, so that she will be deemed to be fully qualified to be appointed in the department of Koumarabhrutyam. The sum and substance of these judgments and proceedings would ineluctably be that all issues relating to Dr.Beena's appointment including her date of appointment, the date on which her original appointment has to be reckoned to be from

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her qualifications, her competence or otherwise to be appointed in Koumarabhrutyam were virtually left open without any conclusive view being taken by this Court. The relevant direction in Ext.P13 judgment of the Division Bench is also very relevant and the same is extracted as under:-

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“We heard the learned counsel on both sides. It is not in dispute that the first respondent does not have P.G. Degree in Koumarabhrutyam. But, the first

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W.P.(C). No.4309 of 2010 7 &

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W.P.(C). No.13960 of 2011,

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W.P.(C). No.8629 of 2014

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respondent would submit, relying on Ext.P5 that, since she joined service on 16.8.1991, which is admittedly before 14.5.1992, that is before the cut off date contained in Ext.P2, she should be treated as qualified. But, the appellant would point out that the first respondent commenced service in the Vaidyaratnam Ayurveda College, Ollur only on 8.11.1994 and therefore, she cannot claim the benefit of Ext.P5. We think, it is a matter which requires decision by the second respondent, University. In view of the above, position, we quash Ext.P12. The parties to this appeal, who want to file representations, may file representations before the University, concerning the above point within six weeks from today, along with a copy of this judgment. Upon receipt of those representations, the University shall take a fresh decision on the claim of the first respondent/writ petitioner for accommodation in the post of Lecturer in Koumarabhrutyam, that may be created while implementing 13+1 departmental system. The University shall take a decision within three months from the date of receipt of a copy of this judgment either from the appellant or the respondents”

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It is in the background of these directions that I am

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called to test the validity of Ext.P18 order. Ironically, Ext.P18 order is sought to be implemented by both Dr. Beena and Dr. Praveen but challenged by Dr.Madhusoodhanan. Dr. Beena wants this order to be implemented because she would then be allotted the Department of Koumarabhrutyam where she would join as a Professor and Dr. Praveen supports it because he would continue to be in the Department of Rachana

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W.P.(C). No.13960 of 2011, W.P.(C). No.4309 of 2010 8 & W.P.(C). No.8629 of 2014

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Sareeram where he can then aspire for further promotion in the absence of Dr.Beena. However, Dr. Madhusoodhanan would be completely prejudiced by this order because if it is implemented, in the manner in which it is now sought to be, he would become junior to Dr. Beena in the Department of Koumarabhrutyam and that he would then lose any further chances for promotion.

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I have examined Ext.P8 order quite in extenso. I

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must say straightaway that that order does not appear to be in conformity with the directions contained in the judgment of the Division Bench, namely Ext.P13. The order seems to proceed on certain assumptions and conjunctures as if they are gospel truth. It does not deal in any manner with the question as to when the appointment of Dr.Beena in the service of the college should be reckoned to be from. The order also does not say that she is qualified to be allotted to the said Department or otherwise.

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W.P.(C). No.13960 of 2011, W.P.(C). No.4309 of 2010 9 & W.P.(C). No.8629 of 2014

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Quad hoc the issue of lien of Dr.Beena in the Department of Koumarabhrutyam, the learned counsel Mr. Elvin Peter maintains that this has been settled by Exts.R6(l) and R6(m) orders and that Ext.P13 judgment chose not to disturb this. However, Mr.Radhakrishnan, the learned counsel for Dr.Madhusoodhanan refutes this by referring to Ext.P12 order wherein Dr. Beena's lien was found irregular and asserts that Ext.P13 judgment has directed all issues to be considered. I have examined Ext.P13 judgment and I am inclined towards the submissions of Mr. Elvin Peter since, I do not see any specific advert having been made by the Division Bench as regards the lien of Dr. Beena. However, I am not saying even by whisper that Dr. Beena has a lien or that she does not have a lien, but I am firm that question being disputed, ought to have been considered by the appropriate Authority in Ext.P18. This does not appear to have been done in Ext.P18 order either.

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W.P.(C). No.13960 of 2011, W.P.(C). No.4309 of 2010 10 & W.P.(C). No.8629 of 2014

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In such circumstances, I have no other option than to quash Ext.P18 order holding that the same is not in conformity with the directions contained in Ext.P13 judgment and consequently I direct the competent Authority of the University to reconsider the whole issue after affording an opportunity of being heard to all the teachers viz., Dr. Beena, Dr.Praveen and Dr. Madhusoodhanan. I make it clear that I have not considered any of the contentions on its merits including the question as to the date on which Dr. Beena's service ought to be reckoned to have begun from; the question as to whether she is qualified to the post of Lecturer or Professor; or the question as to whether her lien is conclusive or otherwise and deem it appropriate that all these issues be considered by the competent authority of the University in terms of the relevant Statute, Rules and Regulations but specifically adverting to and inconformity with the directions contained in Ext.P13 judgment.

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W.P.(C). No.13960 of 2011, W.P.(C). No.4309 of 2010 11 & W.P.(C). No.8629 of 2014

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Since these issues have been pending for a long time, I deem it appropriate that the competent Authority of the University dispose of the issues as afore directed as expeditiously as possible, however, not later than four months from the date of receipt of a certified copy of this judgment.

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Writ petition is ordered as above.

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In the facts and circumstances I make no order as to

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costs and direct the parties to suffer their respective costs.

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Sd/DEVAN RAMACHANDRAN, JUDGE

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SKV

Dr.P.v.Madusoodhanan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr.P.v.Madusoodhanan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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