Dismissed

State of Kerala v. Nasiya N

Kerala HC4 Dec 2021WA/1573/2021

Case brief

AI extract

What is this about?

The High Court dismissed the State's writ appeals which challenged a lower court order granting service benefits to teachers appointed to non-existent vacancies. The Court held that administrative errors by the college cannot deprive teachers of earned service benefits absent prejudice to the State.

What did the court decide?

Directing the Government to disburse consequential benefits within two months; Writ Appeals dismissed.

State of Kerala Vs Nasiya N — Pension and Retirement Benefits | Kerala HC (2021)

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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.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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SATURDAY, THE 4^TH DAY OF DECEMBER 2021 / 13TH AGRAHAYANA, 1943

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WA NO. 1567 OF 2021

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HIGH COURT OF KERALA

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APPELLANTS/ RESPONDENTS 1 TO 3 IN WP(C):

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1 STATE OF KERALA, REPRESENTED BY SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 001.

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3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOZHIKODE-673 001.

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BY ADV GOVERNMENT PLEADER SRI.A.J.VARGHESE,SR

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RESPONDENTS/PETITIONER AND RESPONDENTS 4 TO 7 IN WP(C):

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1 MEHAR AL MINNATH, AGED 42 YEARS

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W/O.SIRAJ KASIM, JYOTHIRGAMAYA, MELIKANIKKATTIL, FAROOK COLLEGE POST, KOZHIKODE-673 632.

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2 UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY POST, THENJIPALAM, MALAPPURAM-673 635.

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3 THE PRINCIPAL, MES MAMPAD COLLEGE, P.O.MAMPAD COLLEGE, MALAPURAM-676 542.

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4 CORPORATE MANAGER, MUSLIM EDUCATIN SOCIETY AIDED COLLEGE,

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W.A.No.1567 & 1573 of 2021

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IMA HALL ROAD, NADAKKAVU, KOZHIKODE-673 011.

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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).

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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

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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:

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W.A.No.1567 & 1573 of 2021

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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.K.JAYASANKARAN NAMBIAR

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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SATURDAY, THE 4^TH DAY OF DECEMBER 2021 / 13TH AGRAHAYANA,

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1943

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WA NO. 1573 OF 2021

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AGAINST THE JUDGMENT DATED01.02.2021 IN WP(C) 146/2020 OF

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HIGH COURT OF KERALA

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APPELLANTS/RESPONDENTS 1 TO 3 IN WP(C):

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1 STATE OF KERALA REPRESENTED BY SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, GOVERNMENT OF KERALA,THIRUVANANTHAPURAM-695033.

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3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOZHIKODE-673001.

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BY ADV GOVERNMENT PLEADER SRI.A.J.VARGHESE, SR

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RESPONDENTS/PETITIONER AND THE RESPONDENTS 4 TO 7 IN WP(C):

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1 NASIYA N, AGED 30 YEARS ASSISTANT PROFESSOR, MUSLIM EDUCATION SOCIETY MAMPAD COLLEGE, MAMPAD COLLEGE.P.O., MALAPPURAM676542.(AGED 30, W/O.NAMEER.P, NECHIKKAT HOUSE,

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W.A.No.1567 & 1573 of 2021

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CHERUVADI.P.O., MAVOOR (VIA), KOZHIKODE).

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2 UNIVERSITY OF CALICUT, THENJIPALAM, MALAPPURAM-673635, REPRESENTED BY REGISTRAR.

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3 CORPORATE MANAGER, MUSLIM EDUCATION SOCIETY AIDED COLLEGE, IMA HALL ROAD, NADAKKAVU, KOZHIKODE-673011.

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4 JASEELA.M.A ASSISTANT PROFESSOR, MES KEVEEYAM COLLEGE, VALANCHERY.P.O., MALAPPURAM-676552.

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5 MEHAR AL MINNATH ASSISTANT PROFESSOR, MES MAMPAD COLLEGE, MEMPAD COLLEGE.P.O., MALAPPURAM-676542.

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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

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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:

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W.A.No.1567 & 1573 of 2021

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JUDGMENT

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A.K.Jayasankaran Nambiar, J.

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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.

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The brief facts necessary for disposal of the Appeals are as follows:

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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 6^th and 7^th 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 6^th 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

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community quota at Valanchery with effect from10.07.2015 and the 7^th respondent, who was the 9^th 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 6^th respondent. Inasmuch as there was no dispute with regard to the appointment of the 7^th respondent at Mampad, her appointment was left untouched. The 6^th 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 6^th respondent, her

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W.A.No.1567 & 1573 of 2021

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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 6^th 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.

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Counter affidavits were filed in the Writ Petitions by the MES College, the University and the State. The 7^th respondent also filed a counter affidavit in the Writ petition reiterating what she had already stated in her own writ petition, ie.WP(C).No.19024 of 2020.

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The learned Single Judge, who considered both the Writ Petitions found that the workload study conducted by the University for the academic year 2014-2015 had clearly indicated that there was only one vacancy to the post of Assistant Professor in Chemistry at MES College, Valanchery while there were two vacancies in the post of Assistant Professor in Chemistry at MES College, Mampad. It was as against this that the appointments of the petitioner, 6^th and 7^th

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W.A.No.1567 & 1573 of 2021

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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 6^th and 7^th 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 7^th respondent with effect from the respective dates of initial appointments.

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In the Appeals before us, the contention of the learned Government Pleader appearing on behalf of the appellants is essentially that the learned Single Judge ought not to have recognised the service rendered by the petitioner in WP(C).No.146 of 2020 at MES College, Valanchery between 10.07.2015 and 23.06.2017 for the purposes of any service benefits. It is pointed out that, admittedly, based on the workload study conducted by the University for the academic years in question, there was only one vacancy that existed in MES College, Valanchery at the time of drawing up of the rank list containing the names of the petitioner and the 6^th and 7^th respondents. Owing to her

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W.A.No.1567 & 1573 of 2021

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higher rank, it was the 6^th respondent who had to be appointed in the sole vacancy that existed in MES College, Valanchery and the petitioner, who was the 7^th 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.

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We have heard Sri.A.J.Varghese, the learned Senior Government Pleader on behalf of the appellants, Sri.Madhusoodanan, the learned counsel for the 1^st respondent in W.A.No.1573 of 2021 (writ petitioner in WP(C).No.146 of 2020), Smt.M.Shajna, the learned counsel for the 1^st respondent in W.A.No.1567 of 2021 (writ petitioner in WP(C).No19024 of 2020), Sri.Babu Karukapadath, the learned counsel for the MES College and Sri.P.C.Sasidharan, the learned Standing counsel for the University.

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On a consideration of the rival submissions and on a perusal of the documents and pleadings available before us, we see no reason to

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W.A.No.1567 & 1573 of 2021

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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 6^th and the 7^th 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 6^th 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 7^th respondent as Assistant Professor in Chemistry at Mampad with effect from 15.07.2015. As already noted, however, the petitioner in

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W.A.No.1567 & 1573 of 2021

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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.

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On an overall consideration of the facts presented before us, we find that denial of service benefits to the petitioner in WP(C).No.146 of 2020 for the period that she had actually worked (10.07.2015 to 23.06.2017) at MES College, Valanchery, when admittedly there was an established vacancy at MES College, Mampad that was not filled during the same period by appointing any other teacher, cannot deprive her of the service benefits that she is entitled to assuming that she had actually been posted at Mampad in lieu of Valanchery. This is more so because, it is admittedly not on account of any fault of the teacher that she had to suffer this predicament. We believe that it was the responsibility of the college management, at the first instance, to make the appointments in line with the workload study conducted by the University, and the determination of established vacancies ought to

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W.A.No.1567 & 1573 of 2021

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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, 6^th and 7^th 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.

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Thus, in the absence of any established prejudice to the Government, and on account of the fact that the teachers themselves had no role to play in the irregularity occasioned by the management, we see no reason to interfere with the judgment of the learned Single Judge impugned in these Appeals. We have also been shown the orders passed by the University pursuant to the directions of the learned Single Judge, which clearly indicate that their respective grievance stands redressed through the said orders of the University in implementation of the directions of the learned Single Judge. We dispose these Writ Appeals by directing the Government to disburse the consequential benefits flowing from the aforesaid orders passed by the University in implementation of the directions of the learned Single

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W.A.No.1567 & 1573 of 2021

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Judge, within an outer time limit of two months from the date of receipt of a copy of this judgment.

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The Writ Appeals are disposed as above.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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Sd/-

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MOHAMMED NIAS C.P. JUDGE

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mns

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W.A.No.1567 & 1573 of 2021

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APPENDIX OF WA 1573/2021

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PETITIONERS ANNEXURS:NIL

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RESPONDENT ANNEXURES

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ANNEXURE R1 (a) PHOTOCOPY OF THE APPROVAL ORDER OF THE 2ND RESPONDENT DATED 1.6.2021 BEARING U.O.NO 5852/2021 /ADMN

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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

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//TRUE COPY//

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P.A TO JUDGE

State of Kerala v. Nasiya N

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State of Kerala v. Nasiya N

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