Dismissed

Sree Vidyadhiraja Homeopathic Medical College v. Dr.Thara

Kerala HC6 Oct 2020WA/960/2020

Case brief

AI extract

What is this about?

In this writ appeal, the Kerala High Court dismissed the appeal filed by the college management challenging its lower court order. The lower court had set aside an order directing the temporary removal of the petitioner, a Professor and the named Principal, from her post to a non-existent post of Academic Advisor during the pandemic, finding it violated constitutional principles as no such post ex

What did the court decide?

The writ appeal was dismissed, upholding the order of the learned Single Judge which set aside the impugned proceedings opting to relieve the petitioner as Principal.

Sree Vidyadhiraja Homeopathic Medical College Vs… — Service and Employment | Kerala HC (2020)

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE GOPINATH P.

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TUESDAY, THE 06TH DAY OF OCTOBER 2020 / 14TH ASWINA, 1942

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WA.No.960 OF 2020

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AGAINST THE JUDGMENT IN WP(C) 11114/2020(L) OF HIGH COURT OF KERALA DATED 26/6/2020

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APPELLANT/3RD RESPONDENT:

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SREE VIDYADHIRAJA HOMEOPATHIC MEDICAL COLLEGE NEMOM, THIRUVANANTHAPURAM-695 020, REPRESENTED BY ITS MANAGER

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BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SRI.P.M.SANEER

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RESPONDENTS/PETITIONER & RESPONENTS 1 & 2:

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1 DR.THARA

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W/O. K.G.SREEKUMAR, PRINCIPAL , SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM,THIRUVANANTHAPURAM-695 0202, RESIDING AT THUNDATHIL, TC 37/1639,KOTHALAM ROAD, FORT P.O., THIRUVANANTHAPURAM-695 023

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2 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT OF MEDICAL COLLEGE, IRANIMUTTOM, THIRUVANANTHAPURAM-695 010

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3 THE PRINCIPAL AND CONTROLLING OFFICER, GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE,IRANIMUTTOM, THIRUVANANTHAPURAM-695 010

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R1 BY ADV. SRI.ELVIN PETER P.J. R1 BY ADV. SRI.K.R.GANESH R1 BY ADV. SMT.N.R.REESHA R1 BY ADV. SMT.T.S.LIKHITHA SRI. A.J. VARGHESE- SR.G.P.

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29-09-2020, THE COURT ON 06-10-2020 DELIVERED THE FOLLOWING:

WA No.960/2020

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J U D G M E N T

Dated this the 6^th day of October, 2020

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Shaffique, J.

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This appeal is filed by the 3^rd respondent in WP(C) No. 11114/2020 challenging judgment dated 26/6/2020 by which the learned Single Judge had set aside Ext.P8 and directed that the writ petitioner should be entitled to all consequential benefits. Ext.P8 is a proceedings issued by the Secretary of the appellant Institution relieving the writ petitioner Dr.L.Tara from the post of Principal, SVHMC and Medical Superintendent, SVH Hospital temporarily w.e.f. 1/6/2020 and she was appointed as Academic Advisor to the Principal, holding the post of Professor and Head of the Department of Practice of Medicine. It was further indicated that she was relieved from the post of Principal only on account of the Covid pandemic and until she is fit to take full responsibility of Principal/Medical Superintendent. This order came to be passed when the writ petitioner informed the Manager that she

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will not be in a position to be physically present in the college as well as hospital on a daily basis, as her husband had tracheostomy and he will have to be isolated in a room. She further stated that she was doing her work at home and she will be attending the college once in a week to ensure that everything is in order.

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Writ petitioner contended that relieving her from the post of Principal and posting her as an Advisor to the Principal is malafide . According to her, she was appointed as Principal being the senior-most Professor and head of Department of Practice of Medicine and she is entitled to continue in the said post until she attains her retirement or until she resigns from the said post. She only requested for an on-line duty on account of the Covid pandemic and taking into account the plight of her husband.

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The College however took up a contention that since she was unable to perform the functions of Principal, an alternate arrangement had been made to ensure that the Principal's office functions in full swing. According to them, there is no illegality in taking such a decision to treat her as an Advisor to the Principal

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since she could work at home.

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Learned Single Judge after considering the factual aspects involved in the matter and having observed that insofar as Academic Advisor to the Principal is not a sanctioned post and even assuming that there is such a post, the Manager has no authority to shift an incumbent from the post of Principal to another post at his own whims and fancies. If at all any such working arrangement has to be made, it can be done only in accordance with the provisions of the statute or a prescribed procedure. In the said background it was held that Ext.P8 has been issued in violation of Articles 14 and 16 of the Constitution of India and the same has been set aside.

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We heard the learned senior counsel Sri. George Poonthottam appearing on behalf of the appellant, Sri.Elvin peter appearing on behalf of the 1^st respondent and the learned Government Pleader Sri.A.J.Varghese appearing on behalf of the State.

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There is no dispute about the fact that the petitioner was appointed to the post of Principal. During the course of

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argument, it was pointed out that the post of Principal was not a cadre that had been prescribed in terms of Annexure A2. However, it is not in dispute that the senior-most Professor is being appointed as Principal and the petitioner had been appointed as Principal as per proceedings dated 23/4/2017 of the appellant. She was asked to remain as an Advisor of the Principal on account of Covid pandemic, especially when she has made a request to permit her to work at home on account of Covid pandemic. But it is apparent that there is no such post like Academic Advisor to the Principal. Therefore, there is justification on the part of the learned Single Judge to have observed that in the absence of any statutory permission or a prescribed procedure to enable the appellant to remove her from the said post of Principal, Ext.P8 cannot be sustained. Of course, it is true that the petitioner requested for permission to work at home. The Manager could have rejected the same or could have allowed the same. Instead of doing so, Manager had in fact decided to remove her from the post which she never requested for and she was asked to remain in a post which was not at all available in

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the said college. Learned counsel for the appellant however placing reliance on certain additional documents would submit that presence of Principal in the college during office hours is a necessity which cannot be dispensed with, as important documents are required to be verified and approved within a time frame. When the respondent had shown disinclination to come to the college on all working days, an alternate arrangement alone had been done, which would not affect her in any manner. It is true that some working arrangement is possible to be made, but, it should have been done with the consent and approval of the writ petitioner. As already mentioned, if the intention of the Manager was to place her as Advisor to the Principal, which apparently is a post lower than that of the Principal, she had an option to take a different view. Therefore, we are not satisfied with the said contention as well.

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Learned counsel for the writ petitioner would submit that subsequently a show cause notice had been issued against her. We do not want to express any opinion in regard to such

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matters and even without going into the allegation of malafide, the learned Single Judge was justified in setting aside Ext.P8.

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We do not find any ground to interfere with the same.

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Hence, the writ appeal is dismissed.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

GOPINATH P.

JUDGE

WA No.960/2020

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APPENDIX

APPELLANT'S EXHIBITS:

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ANNEXURE-A1 TRUE COPY OF THE DPS AGREEMENT BETWEEN THE GOVERNMENT AND THE MANAGEMENT DTD 21.6.2003 ANNEXURE-A2 A TRUE COPY OF THE GOVERNMENT ORDER DTD 24.9.2016 ISSUED IN FAVOUR OF THE COLLEGE FIXING STAFF PATTERN ANNEXURE-A3 A TRUE COPY OF THE ORDER DTD 4.8.2018 ISSUED BY THE KERALA UNIVERSITY OF HEALTH SCIENCE

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ANNEXURE A4 A TRUE COPY OF THE LETTER DATED 10/07/2020 ISSUED BY THE CENTRAL COUNCIL FOR HOMEOPATHY.

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ANNEXURE A5 A TRUE COPY OF THE LETTER DATED 11/03/2020 ISSUED BY THE 3RD RESPONDENT.

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ANNEXURE A6 A TRUE COPY OF THE PUBLICATION OF RESULTS OF THE STUDENTS OF 2016 ADMISSIONS, ISSUED BY THE UNIVERSITY DATED 03/06/2020.

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ANNEXURE A7 A TRUE COPY OF THE LETTER ISSUED BY THE HIGHER EDUCATION DEPARTMENT DATED 25/06/2020.

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ANNEXURE A8 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE DIRECTOR OF HOMEOPATHY DATED 10/07/2020.

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ANNEXURE A9 A TRUE COPY OF THE COMMUNICATION DATED 13/05/2020 ISSUED BY THE AYUSH DEPARTMENT.

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ANNEXURE A10 A TRUE COPY OF THE PROCEEDINGS ISSUED BY THE APPELLANT DATED 10/07/2020. ANNEXURE A11 COMPLAINTS RECEIVED BY THE APPELLANT FROM THE STAFF INCLUDING TEACHING AND NON TEACHING AGAINST THE PRINCIPAL. ANNEXURE A12 A TRUE COPY OF THE COMMUNICATION 24/04/2020 ISSUED BY THE 3RD RESPONDENT TO THE PRINCIPALS OF HOMEO COLLEGES. ANNEXURE A13 A TRUE COPY OF THE LETTER DATED 20/08/2020 SENT BY THE APPELLANT TO THE 3RD RESPONDENT.

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ANNEXURE A14 A TRUE COPY OF REPLY DATED 27/08/2020 RECEIVED FROM THE OFFICE OF 3RD RESPONDENT. ANNEXURE A15 A TRUE COPY OF PROCEEDINGS OF THE PRINCIPALS DATED 26/10/2019. ANNEXURE A16 A TRUE COPY OF PROCEEDINGS OF THE PRINCIPALS DATED 19/12/2019.

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ANNEXURE A17 A TRUE COPY OF PROCEEDINGS OF THE PRINCIPALS DATED 31/12/2019.

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ANNEXURE A18 A TRUE COPY OF PROCEEDINGS OF THE PRINCIPALS DATED 13/01/2020.

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ANNEXURE A19 A TRUE COPY OF PROCEEDINGS OF THE PRINCIPALS DATED 17/01/2020.

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ANNEXURE A20 A TRUE COPY OF PROCEEDINGS OF THE PRINCIPALS DATED 31/01/2020.

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ANNEXURE A21 A TRUE COPY OF PROCEEDINGS OF THE PRINCIPAL DATED 13/02/2020.

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ANNEXURE A22 A TRUE COPY OF PROCEEDINGS OF THE PRINCIPAL DATED 25/02/2020.

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ANNEXURE A23 A TRUE COPY OF PROCEEDINGS OF THE MANAGER DATED 07/01/2019.

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ANNEXURE A24 A TRUE COPY OF THE PROCEEDINGS OF THE MANAGER DATED 20/06/2019. ANNEXURE A25 THE TRUE COPY OF THE E-MAIL DATED 10/07/2020 RECEIVED FROM CCH. ANNEXURE A26 TRUE COPY OF THE LETTER DATED 21/07/2020 RECEIVED FROM JUNIOR SUPERINTENDENT OF THE COLLEGE. ANNEXURE A27 TRUE COPY OF THE LETTER DATED 04/08/2020 RECEIVED FROM JUNIOR SUPERINTENDENT OF THE COLLEGE. ANNEXURE A28 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE APPELLANT DATED 10/07/2020. ANNEXURE A29 A TRUE COPY OF THE POLICE COMPLAINT GIVEN BY SRI. S.V. SAI PRASAD DATED 01/07/2020 TO SHO, NEMOM POLICE STATION. ANNEXURE A30 TRUE COPY OF THE REPLY SUBMITTED TO THE 2ND RESPONDENT DATED 19/09/2020 BY THE APPELLANT. RESPONDENT'S EXHIBITS:

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ANNEXURE R1(A) (1) TRUE PHOTOCOPY OF THE ORDER NO. SVVS/78/2020 DATED 24/06/2020 ISSUED BY THE APPELLANT TO THIS RESPONDENT. (2) TRUE PHOTOCOPY OF THE COMMUNICATION DATED 07/09/2020 ISSUED BY THE DEPARTMENT OF AYUSH, GOVERNMENT OF INDIA TO THE 1ST RESPONDENT.

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ANNEXURE R1(B) (1) TRUE PHOTOCOPY OF THE PRINT OUT OF THE COMPLAINT DATED 28/06/2020 ISSUED BY THE 1ST RESPONDENT TO THE SECRETARY TO AYUSH DEPARTMENT. (2) TRUE PHOTOCOPY OF THE COMMUNICATION DATED 08/09/2020 ISSUED BY THE 1ST RESPONDENT/PETITIONER TO THE APPELLANT MANAGER. ANNEXURE R1(C) (1) TRUE PHOTOCOPY OF THE EXTENSION ORDER F. NO.15-09/2020 CCH (VISITATION MATTER)-MISC./1685 DATED 20/07/2020 ISSUED BY CENTRAL COUNCIL. (2) TRUE PHOTOCOPY OF THE PRINT OUT OF THE WHATSAPP MESSAGE DATED 08/09/2020 SENT BY THE APPELLANT. ANNEXURE R1(D) (1) TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE MANAGER FOR THE PERIOD FROM 17/08/2020 TO 23/08/2020 AND CIRCULATED AMONG THE STAFF THROUGH ELECTRONIC MEDIA. (2) TRUE PHOTOCOPY OF THE PRINT OUT OF THE WHATSAPP MESSAGE SENT BY THIS RESPONDENT TO THE APPELLANT AND HIS REPLY. ANNEXURE R1(E) TRUE PHOTOCOPY OF THE PRINT OUT SENT BY THE 1ST RESPONDENT TO THE COLLEGE. ANNEXURE R1(F) TRUE PHOTOCOPY OF THE EXTRACT OF THE EARNED LEAVE REGISTER PERTAINING TO THIS RESPONDENT. ANNEXURE R1(G) TRUE PHOTOCOPY OF THE ORDER NO.B2/116/2020/AYUSH DATED 08/09/2020. ANNEXURE R1(H) TRUE LEGIBLE COPY OF ANNEXURE R1(G) ORDER NO. B2/116/2020/AYUSH DATED 08/09/2020.

Sree Vidyadhiraja Homeopathic Medical College v. Dr.Thara

Case brief

What is this about?

What did the court decide?

Sree Vidyadhiraja Homeopathic Medical College v. Dr.Thara

Case brief

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