This appeal by the State challenged a lower court's order rectifying appointments and allowing service reckoning despite a college vacancy irregularity. The High Court rejected the State's submission.
Writ appeals dismissed; Government directed to disburse consequential benefits within two months of receipt of the judgment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
SATURDAY, THE 4TH DAY OF DECEMBER 2021 / 13TH AGRAHAYANA, 1943
WA NO. 1567 OF 2021
AGAINST THE JUDGMENT DATED 01.02.2021 IN WP(C) 19024/2020 OF
HIGH COURT OF KERALA
APPELLANTS/ RESPONDENTS 1 TO 3 IN WP(C):
BY ADV GOVERNMENT PLEADER SRI.A.J.VARGHESE,SR
RESPONDENTS/PETITIONER AND RESPONDENTS 4 TO 7 IN WP(C):
:2:
W.A.No.1567 & 1573 of 2021
IMA HALL ROAD, NADAKKAVU, KOZHIKODE-673 011.
5 NASIYA.N., ` ASSISTANT PROFESSOR, MUSLIM EDUCATION SOCIETY MAMPAD COLLEGE, MAMPAD COLLEGE P.O., MALAPPURAM-676 542, (AGED 30, W/O.NAMEER, NECHIKKAT HOUSE, CHERUVADI P.O., MAVOOR VIA, KOZHIKODE).
BY ADVS. SRI.K.M.FIROZ SRI.BABU KARUKAPADATH SRI.P.C.SASIDHARAN SRI.K.S.MADHUSOODANAN SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SRI.K.S.MIZVER SRI.M.J.KIRANKUMAR SRI.P.U.VINOD KUMAR SRI.VAISAKHI V. SRI.MOHAMED HISHAM P SRI.M.A.VAHEEDA BABU SRI.ARYA RAGHUNATH SRI.T.M.MUHAMMED MUSTHAQ SRI.KARUKAPADATH WAZIM BABU SMT.M.SHAJNA
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2021, ALONG WITH WA.1573/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
:3:
W.A.No.1567 & 1573 of 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
SATURDAY, THE 4TH DAY OF DECEMBER 2021 / 13TH AGRAHAYANA,
1943
WA NO. 1573 OF 2021
AGAINST THE JUDGMENT DATED01.02.2021 IN WP(C) 146/2020 OF
HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 TO 3 IN WP(C):
BY ADV GOVERNMENT PLEADER SRI.A.J.VARGHESE, SR
RESPONDENTS/PETITIONER AND THE RESPONDENTS 4 TO 7 IN WP(C):
:4:
W.A.No.1567 & 1573 of 2021
CHERUVADI.P.O., MAVOOR (VIA), KOZHIKODE).
3 CORPORATE MANAGER, MUSLIM EDUCATION SOCIETY AIDED COLLEGE, IMA HALL ROAD, NADAKKAVU, KOZHIKODE-673011.
5 MEHAR AL MINNATH ASSISTANT PROFESSOR, MES MAMPAD COLLEGE, MEMPAD COLLEGE.P.O., MALAPPURAM-676542.
BY ADVS. SRI.P.C.SASIDHARAN SMT.M.SHAJNA SRI.K.S.MADHUSOODANAN SRI.BABU KARUKAPADATH SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR SRI.K.S.MIZVER SRI.M.J.KIRANKUMAR SRI.P.U.VINOD KUMAR SRI.VAISAKHI V. SRI.MOHAMED HISHAM P SRI.M.A.VAHEEDA BABU SRI.ARYA RAGHUNATH SRI.T.M.MUHAMMED MUSTHAQ SRI.KARUKAPADATH WAZIM BABU
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.12.2021, ALONG WITH WA.1567/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
:5:
W.A.No.1567 & 1573 of 2021
JUDGMENT
A.K.Jayasankaran Nambiar, J.
Both these Writ Appeals have been preferred by the State aggrieved by the judgment of the learned Single Judge dated 01.02.2021 in WP(C).No.146 of 2020 and WP(C).No.19024 of 2020.
The petitioner in WP(C).No.146 of 2020 was appointed as Assistant Professor in Chemistry in the Valanchery campus of MES College which has campuses both at Valanchery and Mampad . The petitioner in WP(C).No.19024 of 2020 was appointed as Assistant Professor in Chemistry to a vacancy that arose in the MES College, Mampad. It would appear that the selection process in which the candidature of the petitioner and the 6th and 7th respondents in WP(C).No.146 of 2020 came to be considered was a common one and they all featured in Ext.P1 rank list that was subsequently drawn up on 02.03.2015. Based on their inter se ranking, the 6th respondent was first appointed to a general vacancy at MES College, Valanchery on 13.03.2015. The petitioner was appointed to a vacancy under the
:6:
W.A.No.1567 & 1573 of 2021
community quota at Valanchery with effect from10.07.2015 and the 7th respondent, who was the 9th rank holder, was appointed to a vacancy under the community quota at Mampad with effect from 15.07.2015. When the appointment letters were forwarded to the University for approval, a dispute was raised with regard to the workload study and the consequent determination of working hours at the MES College, Valanchery during the relevant period. When this was pointed out by the University to the college, the college passed a revised order of appointment on 30.05.2017 rearranging the appointments originally made of the petitioner and the 6th respondent. Inasmuch as there was no dispute with regard to the appointment of the 7th respondent at Mampad, her appointment was left untouched. The 6th respondent was given a fresh appointment with effect from 02.06.2015 at Valanchery and the petitioner was shown as appointed with effect from 10.07.2015 at Mampad, in lieu of Valanchery. When the said revised appointments were forwarded to the University for approval, the University took the stand that the appointment of the petitioner with effect from 10.07.2015 at Mampad could not be approved since she had been reassigned to Mampad only with effect from 23.06.2017 and had actually worked at Mampad only from that date, and hence, her prior teaching at Valanchery between 10.07.2015 and 23.06.2017 could not be reckoned for service purposes. As regards the 6th respondent, her
:7:
W.A.No.1567 & 1573 of 2021
earlier appointment with effect from 13.03.2015 at Valanchery was revised and her service was shown as commencing from 02.06.2015 at Valanchery itself. The 6th respondent was not aggrieved by the said reallocation and her appointment stands approved as such by the University. The petitioner in WP(C).No.146 of 2020 approached this Court challenging the approval order of the University, whereby her appointment was reckoned only with effect from 23.06.2017 at Mampad and on account of her prior service between 10.07.2015 and 23.06.2017 not being reckoned for any purpose.
:8:
W.A.No.1567 & 1573 of 2021
respondents were made on the assumption that there were actually two vacancies in MES College, Valanchery and one vacancy in Mampad. The learned Judge, therefore, proceeded to rectify the irregularity committed by the college while granting appointments to the petitioner and the 6th and 7th respondents based on their inter se ranking in the rank list prepared pursuant to the selection process in the two colleges referred above. The Writ Petitions were thus allowed by quashing the impugned orders of the University, and the respondents were directed to pay the salary of the petitioner by treating the appointments of the petitioner and the 7th respondent with effect from the respective dates of initial appointments.
:9:
W.A.No.1567 & 1573 of 2021
higher rank, it was the 6th respondent who had to be appointed in the sole vacancy that existed in MES College, Valanchery and the petitioner, who was the 7th rank holder ought to have been appointed to an existing vacancy at Mampad, which was not done. It is pointed out by the learned Government Pleader that inasmuch as the salary payment in respect of teachers appointed by the management is to be borne by the Government, a direction to the Government to pay salary to the teacher, who had worked in a college where there was no established vacancy to accommodate her, cannot be justified under any circumstances.
:10:
W.A.No.1567 & 1573 of 2021
interfere with the impugned judgment of the learned Single Judge as it is apparent from the documents produced before us that the workload study conducted by the University for the academic year 2014-2015, clearly indicted that there was no change in the workload from the immediately prior workload study, and that as against 9 sanctioned posts of Assistant Professors in Chemistry at Valanchery and Mampad, there were only 8 teachers working at Valanchery and 7 teachers working at Mampad. This would indicate that during the relevant time there was only one established vacancy at MES College, Valanchery and two established vacancies at MES College, Mampad and the appointment of the petitioner, the 6th and the 7th respondents in WP(C).No146 of 2020 ought to have been done by reckoning the said vacancy position and by appointing them based on their inter se ranking in the rank list prepared pursuant to the selection process. In that process, the 6th respondent would have secured appointment as Assistant Professor in Chemistry at Valanchery with effect from 13.03.2015 (although she was given the revised appointment with effect from 02.06.2015 and the same has not been challenged by her), the petitioner had to be appointed as Assistant Professor in Chemistry at MES College, Mampad with effect from 10.07.2015 and the 7th respondent as Assistant Professor in Chemistry at Mampad with effect from 15.07.2015. As already noted, however, the petitioner in
:11:
W.A.No.1567 & 1573 of 2021
WP(C).No.146 of 2020 was erroneously appointed as Assistant Professor in Chemistry to a non-existing vacancy in MES College, Valanchery with effect from 10.07.2015. Although the mistake was subsequently realised by the college and revised appointment letters were issued accommodating the petitioner at Mampad, the University took a stand that the petitioner's accommodation at Mampad would not necessarily mean that her service at Mampad also took effect from the date of her initial posting at Valanchery.
:12:
W.A.No.1567 & 1573 of 2021
have been based on the said study approved by the University. In the appointments to be made after determining the established vacancies, the college management could not also have ignored the inter se ranking between the petitioner, 6th and 7th respondents. An irregularity in the matter of appointments made by the management cannot be held against the affected teachers, more so when admittedly there is no prejudice caused to the Government on account of any additional payments made to teachers for the same period.
:13:
W.A.No.1567 & 1573 of 2021
Judge, within an outer time limit of two months from the date of receipt of a copy of this judgment.
The Writ Appeals are disposed as above.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE
Sd/-
MOHAMMED NIAS C.P. JUDGE
mns
:14:
W.A.No.1567 & 1573 of 2021
APPENDIX OF WA 1573/2021
PETITIONERS ANNEXURS:NIL
RESPONDENT ANNEXURES
ANNEXURE R1 (a) PHOTOCOPY OF THE APPROVAL ORDER OF THE 2ND RESPONDENT DATED 1.6.2021 BEARING U.O.NO 5852/2021 /ADMN
ANNEXURE R1 (b) PHOTOCOPY OF THE ORDER OF DEPUTY DIRECTOR OF COLLEGE EDUCATION , THRISSUR DATED 28.6.2021 BEARING NO B4/6847/2019 WITH RESPECT TO SALARY BILL OF DR.ANSAR
//TRUE COPY//
P.A TO JUDGE
2 issues framed by the court
Whether the denial of service benefits to a teacher for her actual working period due to an irregularity in appointment by college management can be sustained.
Whether the established vacancy position from the University's workload study was the correct basis for appointments and service reckoning.
STATE OF KERALA (NOMINEES)
MEHAR AL MINNATH
NASIYA. N.
UNIVERSITY OF CALICUT
MES MAMPAD COLLEGE (NOMINEE)
A.K. JAYASANKARAN NAMBIAR
MOHAMMED NIAS C.P.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
