Disposed

Dr.Praveen.M.P. v. the Manager

Kerala HC19 Nov 2021WP(C)/2543/2019

Case brief

AI extract

What is this about?

An Ayurveda college faculty dispute concerned departmental allocation, seniority and promotion. The court quashed the University's seniority order and directed reconsideration within two months after hearing affected parties, accounting for departmental vacancies and service rendered. The consequential Head of Department promotion was kept in abeyance.

What did the court decide?

University order quashed; reconsideration after personal hearing directed within two months of receipt of judgment; consequential Head of Department promotion kept in abeyance.

Dr.Praveen.M.P. Vs the Manager — Service and Employment | 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 AMIT RAWAL

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FRIDAY, THE 19^TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943

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WP(C) NO. 3827 OF 2020

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PETITIONER:

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DR. PRAVEEN M.P., AGED 56 YEARS S/O.PEETHAMBARAN, ASSISTANT PROFESSOR, DEPARTMENT OF RACHANA SAREERA, VAIDYARATNAM AYURVEDA COLLEGE, OLLUR THYKKATTUSSERY, THRISSUR DISTRICT, PIN - 680 306, RESIDING AT MANAPARAMBIL HOUSE, THUMBOOR (P.O.), THRISSUR DISTRICT.

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BY ADV GOPAKUMAR R.THALIYAL

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RESPONDENTS:

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1 THE MANAGER, VAIDYARATHNAM AYURVEDA COLLEGE, OLLUR THYKKATTUSSERY, THRISSUR DISTRICT, PIN - 680 306. 2 THE PRINCIPAL, VAIDYARATHNAM AYURVEDA COLLEGE, OLLUR THYKKATTUSSERY, THRISSUR DISTRICT, PIN - 680 306. 3 THE KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE (P.O.), THRISSUR - 680 596, REPRESENTED BY ITS REGISTRAR. 4 THE DIRECTOR OF AYURVEDA MEDICAL EDUCATION, DIRECTORATE OF AYURVEDA MEDICAL EDUCATION, THIRUVANANTHAPURAM - 695 001. 5 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 6 DR.K.G.BEENA, ASSOCIATE PROFESSOR, DEPARTMENT OF RACHANA SAREERA, VAIDYARATNAM AYURVEDA COLLEGE, OLLUR THYKKATTUSSERY, THRISSUR DISTRICT, PIN - 680 306, RESIDING AT KAILAS MANA, MANKUZHY LANE, KANIMANGALAM (P.O.), THRISSUR DISTRICT, PIN - 680 027.

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7 DR.P.V.MADHUSUDHANAN, ASSOCIATE PROFESSOR, DEPARTMENT OF KAUMARABHRITYA, VAIDYARATHNAM AYURVEDA COLLEGE, OLLUR THYKKATTUSSERY, THRISSUR DISTRICT, PIN - 680 306. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES SRI.ELVIN PETER P.J. SRI.S.RADHAKRISHNAN SMT.N.SANTHA SHRI.S.RAJMOHAN SRI.V.VARGHESE SMT.R.ANJALI SRI.PETER JOSE CHRISTO SRI.ADITYA THEJUS KRISHNAN SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.11.2021, ALONG WITH WP(C).2543/2019, 19273/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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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 AMIT RAWAL

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FRIDAY, THE 19^TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943 WP(C) NO. 2543 OF 2019

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PETITIONER:

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DR.PRAVEEN.M.P. AGED 55 YEARS S/O. PEETHAMBARAN, READER/ASSOCIATE PROFESSOR, DEPARTMENT OF RACHANA SAREENA, VAIDYARATNAM AYURVEDA COLLEGE, OLLUR-THYKKATTUSSERY, THRISSUR DISTRICT, PIN 680 306 RESIDING AT MANAPARAMBIL HOUSE, THUMBOOR (P.O), THRISSUR DISTRICT.

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BY ADVS. GOPAKUMAR R.THALIYAL SRI.R.B.RAJESH

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RESPONDENTS:

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1 THE MANAGER, VAIDYARATNAM AYURVEDA COLLEGE, OLLURTHYKKATTUSSERY, THRISSUR DISTRICT. PIN 680 306

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2 THE PRINCIPAL, VAIDYARATNAM AYURVEDA COLLEGE, OLLURTHYKKATTUSSERY, THRISSUR DISTRICT, PIN 680 306

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3 THE KERALA UNIVERSITY OF HEALTH SERVICES, MEDICAL COLLEGE (P.O), THRISSUR 680 596 REPRESENTED BY ITS REGISTRAR.

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4 THE DIRECTOR OF AYURVEDA MEDICAL EDUCATION, DIRECTORATE OF AYURVEDA MEDICAL EDUCATION, THIRUVANANTHAPURAM 695 001.

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5 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO

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GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001 6 DR. K.G BEENA, LECTURER/ASSISTANT PROFESSOR(RE-DESIGNATED AS PROFESSOR) DEPARTMENT OF RACHANA SAREERA, (LIEN IN KAUMARABRITHYA) VAIDYARATHNAM AYURVEDA COLLEGE, OLLUR-THYKKATTUSSERY, THRISSUR DISTRICT, PIN 680 306, RESIDING AT KAILAS MANA, MANKUZHY LANE, KANIMANGALAM (P.O), THRISSUR DISTRICT, PIN 680 027 7 DR. P.V MADHUSUDHANAN, LECTURER/ASSISTANT PROFESSOR, DEPARTMENT OF KAUMARABHRITYAM, VAIDYARATNAM AYURVEDA COLLEGE, OLLUR-THYKATTUSSERY, THRISSUR DISTRICT, PIN 680 306. BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE SRI.ELVIN PETER P.J. SRI.S.RADHAKRISHNAN SRI.K.R.GANESH SMT.N.SANTHA SHRI.S.RAJMOHAN SRI.V.VARGHESE SMT.R.ANJALI SRI.PETER JOSE CHRISTO SRI.ADITYA THEJUS KRISHNAN SRI.S.A.ANAND SMT.L.ANNAPOORNA

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.11.2021, ALONG WITH WP(C).3827/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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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 AMIT RAWAL

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FRIDAY, THE 19^TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943 WP(C) NO. 19273 OF 2018

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PETITIONER:

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DR.K.G.BEENA PROFESSOR, DEPARTMENT OF RACHANASAREERA, VAIDYARATNAM AYURVEDA MEDICAL COLLEGE, OLLUR, THYKATTUSSERY, THRISSUR -680 306, RESIDING AT KAILASMANA, MANKUZHI LANE, KANIMANGALAM P.O, THRISSUR – 680027.

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BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM -695 001.

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2 THE KERALA UNIVERSITY OF HEALTH SCIENCES MEDICAL COLLEGE (P.O), THRISSUR-680 596, REPRESENTED BY ITS REGISTRAR.

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3 THE DIRECTOR OF AYURVEDA MEDICAL EDUCATION DIRECTORATE OF AYURVEDA MEDICAL EDUCATION,THIRUVANANTHAPURAM -695 001.

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4 THE MANAGER VAIDYARATNAM AYURVEDA MEDICAL COLLEGE,OLLUR, THYKATTUSSERY, THRISSUR-680 306.

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5 DR. PRAVEEN M.P. DEPARTMENT OF RACHANASAREERA, VAIDYARATNAM AYURVEDA MEDICAL COLLEGE, OLLUR, THYKATTUSSERY, THRISSUR-680 306.

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BY ADVS. GOVERNMENT PLEADER SRI.S.P.ARAVINDAKSHAN PILLAY SRI.M.R.ARUNKUMAR SRI.S.A.ANAND SMT.L.ANNAPOORNA SMT.BHAVANA VELAYUDHAN SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.K.N.REMYA SRI.S.SANAL KUMAR SMT.N.SANTHA SMT.T.J.SEEMA SRI.V.VARGHESE

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.11.2021, ALONG WITH WP(C).3827/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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JUDGMENT

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[WP(C) Nos.3827/2020, 2543/2019, 19273/2018]

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This order of mine shall dispose of three writ petitions W.P. (C).Nos.2543/2019 (first writ petition) and 3827/2020 (second writ petition) by Dr.Praveen.M.P. and W.P.(C)No.19273/2013 (third writ petition) by Dr.KG.Beena. Though during the pendency of the writ petition W.P.(C)No.19273/2013 by K.G.Beena, the prayer as sought for has been acceded to as a consequence of the passing of the order Ext.P17 in W.P.(C)No.2543/2019, but the writ is kept pending awaiting the outcome of the writ petition No.2543/2019 as, in case Ext.P17 order is quashed, then K.G.Beena would have some submission to make to support the order Ext.P17.

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The genesis of the controversy involved in all three writ petitions is that on 07.03.1994 Dr.Praveen.M.P was originally appointed as Tutor in the department of Prasoothithantram Kaumarabhrityam in the Vaidyaratnam Ayurveda College, Thrissur District. At the time of the appointment was having a qualification of BAMS and the appointment was against leave vacancy. However, regular vacancy arose on 01.08.1995 in the

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department of Rachana Sareera. Petitioner was assigned the duty as tutor in the department of Rachana Sareera and while undergoing, was given an opportunity to acquire higher qualification and obtained a post graduate degree in Samhitha Sidhantha, an allied subject of Rachana Sareera in the year 2009. Vide Ext.P1 in first writ petition, was promoted on 15.06.2009 as Assistant Professor and on 11.04.2018 Ext.P2, as Associate Professor. At the relevant point of time, there were 7 departments in the college. However, there was a bifurcation of the departments and 13 departments were carved out as per the staff pattern in the year 2005.

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Petitioner in the third writ petition ie., Dr.K.G.Beena was earlier appointed in 1991, had sought a mutual transfer which was accepted by the Government vide order dated 03.11.1991 and she, as Tutor, was transferred as junior most in the respective college in the department to be posted. The transfer was subject to the approval of University. Approval of University was accorded on 26.02.1999 and Dr.K.G.Beena eligible Tutor in the department of Samhitha Sidhanta was promoted as lecturer in the same department with effect from 01.02.1999 in

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the pay scale of 2379-3500 pre-revised scale subject to the approval of the college. Calicut University vide order dated 19.12.1995 agreed to give the sanction for the transfer of the above Tutors and the Vice-Chancellor was pleased to accord the sanction for present appointments provisionally with effect from 08.11.1995 by forfeiting their previous service. On the basis of the order dated 14.02.2005 of carving out 13 departments in Ayurveda Colleges and distribution of the existing staff of 13 departments, options were invited. Petitioner Dr.Praveen.M.P gave an option Ext.P5 as under:

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1)Department of Rachana Sareera

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2)Department of Kriya Sareera 3)Swasthivridha

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Whereas Dr.K.G.Beena gave option for following three subjects:

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1)Kaumarabrithya

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2)Swasthavritha 3)Kayachikitsa

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The options were given on 05.05.2000. vide order dated 30.05.2000 Vaidyaratnam Ayurveda College, Thirssur allocated department of Rachana Sareera to Dr.K.G.Beena with lien in Kaumarabrithya as lecturer whereas Dr.Praveen.M.P vide order dated 12.06.2002 was given the department of Rachana Sareera

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as tutor. Before that on 02.09.1995 while approving the mutual transfer, it was made clear that as per inter-collegiate transfer, person would forgo the previous service and the appointment would be considered as fresh appointment.

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Since Dr.K.G.Beena was given department of

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Kaumarabrithya but there was no post of lecturer in that specialty, she preferred W.P.(C)No.29200/2007 before this Court and this Court vide order dated 03.10.2007 issued directions to Calicut University as it then was, having the deep and pervasive control as the college was affiliated with the said University, to pass an order on the representation of Dr.K.G.Beena as expeditiously as possible. University rejected the case of Dr.K.G.Beena, resulted into filing of the writ petition bearing No.7529/2008. This Court vide judgment dated 10.08.2009 noticed that the University had accepted the allotment of Dr.K.G.Beena to the Department of Rachana Sareera with lien in the Department of Kaumarabrithya with an intention that the lien in Kaumarabrithya was to allot Dr.K.G.Beena the department in future ie., as and when the post of lecturer arises, which did not materialise owing to the fact that Government did not sanction

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the staff pattern in accordance with the 13+1 department system. In the previous judgment, had directed the Government to approve the implementation of the 13+1 department system.

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Therefore, direction was issued to allot Dr.K.G.Beena in the department of Kaumarabrithya in accordance with the lien recognized with effect from 01.07.2000. The aforementioned order was assailed by the 7^th respondent, who was already discharging the duties of Tutor by preferring the writ Appeal No.2385/2009. The Division Bench of this Court vide judgment dated 22.12.2009 observed that the parties to the appeal would file a representation before the University concerning their claims and on receipt of the representation the University shall take a fresh decision on the claim of Dr.K.G.Beena for accommodation in the post of lecturer in Kaumarabrithya, within a period of three months. The University of Calicut passed an order dated 02.05.2011 stating that sanction was accorded by Vice Chancellor on 28.03.2011 to approve the report submitted by Syndicate Sub-committee and therefore, the management is given liberty to take necessary action to accommodate Dr.K.G.Beena in the department of Kaumarabrithya as and when the vacancy of

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lecturer is created and the claim of the promotion of Dr.Praveen.M.P for posting in the department of Rachana Sareera can be allowed only when Dr.K.G.Beena was accommodated in

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the department of Kaumarabrithya. The aforementioned order was challenged by the 7^th respondent Dr.P.V.Madhusudhanan vide W.P.(C)No.13960/2011 and also by Dr.K.G.Beena vide W.P. (c).8629/2014. Dr.Praveen.M.P. filed W.P.(C).4309/2010 before that. This Court Vide common judgment dated 07.03.2017 set aside the order dated 02.05.2011 of the University of Calicut on the ground that the same was not in consonance with the directions contained in the judgment of the Division Bench. As a result thereof, an order dated 13.09.2017 was passed by the University of Calicut whereby the claim of Dr.Praveen.M.P to the department of Rachana Sareera in Vaidyaratnam Ayurveda College for promotion and posting in the department was allowed and Dr.K.G.Beena was ordered to be accommodated in the department of Kaumarabrithya in Vaidyaratnam Ayurveda Medical College. Also Dr.K.G.Beena was held to be eligible to be appointed in the post of Professor in the department of Kaumarabrithya. Again a challenge was laid to the

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aforementioned order by 7^th respondent Dr.P.V.Madhusudhanan in W.P.(C).No.31548/2017. This Court vide order dated 25.07.2018 on a technical ground set aside the order as in the meantime, Kerala University of Health Sciences came into being with effect from 12.12.2009 and therefore the order was required to be passed by the Kerala University of Health Sciences.

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Thereafter the impugned order dated 21.01.2019 Ext.P17 order of the Kerala University of Health Sciences which had affected Dr.Praveen.M.P in making him junior to Dr.K.G.Beena and assigning the seniority to Dr.K.G.Beena in the department of Rachana Sareera has been passed, giving cause to Dr.Praveen.M.P filing the W.P.(C)No.2543/2019. During the pendency of the aforementioned writ petition, another petition W.P(C).3827/2020 was filed by challenging the order dated 28.01.2019 of the college whereby Dr.K.G.Beena was promoted as Associate Professor whereas Dr.Praveen.M.P. was posted in the cadre of Assistant Professor. Also, on the same date, the Principal of the College declared Dr.K.G.Beena, Associate Professor as Head of the Department of Rachana Sareera. Both the aforementioned orders have been challenged by amending

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the writ petition, but in W.P.(C).No.3827/2020 advertisement Ext.P22 inviting the application for the post of Associate Professor in Kaumarabrithya has been challenged. Dr.K.G.Beena in W.P. (C)No.19273/2018 has sought a direction for promoting her, which was as noticed above had already been passed, giving cause to Dr.Praveen.M.P. to amend the writ petition.

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Sri.R.Gopakumar.R.Thaliyal, learned counsel appearing

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on behalf of Dr.Praveen.M.P. submitted that once the lien of Dr.K.G.Beena was kept as department of Thiruvananthapuram, the impugned order Ext.P17 allocating the department of Rachana Sareera as permanent to Dr.K.G.Beena is wholly erroneous much less against the options exercised by Dr.K.G.Beena ie., two other subjects Swasthavritha and Kayachikitsa were also available and as regards the vacancies in the subject Swasthavritha, there were three sanctioned posts and three persons were discharging the duties of reader and tutors whereas in Kayachikitsa, there were 5 posts and 5 persons were discharging the duties one as professor, one reader, one lecturer and two tutors. The respondents has not referred to any provisions of rules for maintaining the seniority either

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department-wise or subject-wise, though apparently declared to be subject-wise, but Dr.K.G.Beena cannot be given seniority in Rachana Sareera as she had no lien as the lien was with some other subjects.

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Dr.K.G.Beena joined as tutor on 3.11.1994 whereas Dr.Praveen.M.P. joined on 7.03.1994 and the person who joined on transfer were to lose their seniority in the erstwhile department/management as per the orders passed from time to time.

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The stand of the University of Calicut had been that Dr.K.G.Beena had not given an option for Rachana Sareera and only for three subjects ie., Kaumarabrithya, Swasthavritha and Kayachikitsa. Thus for all intends and purposes, Dr.K.G.Beena could not have been assigned the seniority aforementioned in the subject of Rachana Sareera. The entire controversy arose only on mutual transfer of Dr.K.G.Beena and when in 2005 the departments were carved out and options were given. Without noticing the sanctioned strength Dr.K.G.Beena had given an option for the said subjects which were already manned by different category of faculty.

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In none of the orders passed by this Court, there was direction that Dr.K.G.Beena would be allocated subject of sanctioned post of Rachana Sareera instead of Kaumarabrithya rather direction was issued by this Court for sanctioning of the said post for accommodating Dr.K.G.Beena. All these factors have not been noticed or touched while passing the impugned order.

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During the pendency of the writ petition it surfaced that respondent No.7 Dr.Madhusudhanan has left the post and vacancy has arisen. In this view of the matter Dr.K.G.Beena can always be accommodated in the subject of her option and the seniority can be assigned taking to consideration the years spent by her while teaching the subject Rachana Sareera. There will be contest between Dr.Praveen as well as Dr.K.G.Beena both the parties would be benefited. It is non-application of mind on behalf of the University multifarious litigations have arisen without ascertaining the facts. At the point of entry it is the tutor and thereafter lecturer, reader and professor which have been redesignated. A gross grievance has been caused to Dr.Praveen whereby Dr.K.G.Beena has been not only promoted but made senior in the department of Rachana Sareera but also been

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appointed as Head of the Department. The University has not been able to determine while passing the order the status of Dr.Praveen whether by accommodating Dr.K.G.Beena in the subject of Rachana Sareera, the number of posts would be increased as it has not surfaced whether out of the existing faculty as per appendix to Ext.R6(K) dated 14.02.2005 any of the faculty member had demitted the office on superannuation or otherwise. The impugned order thus leads to utter confusion to understand the fact much less veracity. The University could not have reviewed the options given by Dr.K.G.Beena by observing that the options should have been against the sanctioned post and not against anticipated sanction in future. It was for the employees/faculty who had given options with open eyes after checking the availability of the posts. In the orders noticed above, a professor post had fallen vacant in the Department of Kaumarabrithya and Dr.K.G.Beena was held eligible for the post of Professor in Direct Department. This fact has also gone unnoticed while reading the contents of Ext.P17. Rather the pith and substance of the impugned order has led to a jumbling of all facts and there arose a new case, which has never been of

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ponderance in any of the orders passed by the University from time to time particularly 13.09.2017 which was set aside only on technical ground as University of Calicut lacked jurisdiction.

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On the contrary Sri.Ganesh, learned counsel representing the respondents do not deny the fact that the post of one professor had fallen vacant in the lien of Kaumarabrithya but he fact of the matter is Dr.K.G.Beena cannot be made to suffer or made a shuttle cock as at the time of giving the option, there was no post available in any of the subjects opted for and for adjusting her upon mutual transfer, both were assigned the department of Rachana Sareera. Dr.K.G.Beena is much senior to Dr.Praveen.M.P. taking into consideration the length of service as well as the date of mutual transfer. Even if, the conditions of the order of mutual transfer are complied with in letter and spirit ie., Dr.K.G.Beena would lose the right of seniority of the service rendered in the erstwhile management. The order is though based upon the seniority list and considering Dr.K.G.Beena to be senior than Dr.Praveen.M.P., Dr.K.G.Beena had been promoted and made in charge of Head of the Department and consequential effect Dr.Praveen.M.P has been held to be junior.

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The seniority of Dr.K.G.Beena shall not be overlooked by giving the placement to Dr.Praveen.M.P as it has been the case of the University that Dr.K.G.Beena was Senior. Even though the appointment of Dr.K.G.Beena was to be considered as a fresh appointment, Dr.Praveen.M.P. commenced his service as regular appointee only with effect from 01.08.1995 whereas on mutual transfer, Dr.K.G.Beena with effect from 03.11.1994. Thus the

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claim of Dr.Praveen.M.P could not have been kept pending as Dr.K.G.Beena had been senior.

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On the other hand, Sri.Aravindakshan Pillai for the management submitted that now Dr.Madhusushanan respondent No.7 had left the college and the post of Assistant Professor in the department of Kaumarabrithya is vacant over and above the post already fell vacant on demission of one of the members of the faculty therein. Even otherwise, Dr.K.G.Beena had been discharging duty of Associate Professor though have been given in the scale of professor.

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Sri.Sreekumar learned counsel representing the University supported the impugned order though no counter has been filed but contended that University had to comply with the

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direction of this Court for determining the seniority of Dr.K.G.Beena viz.a.viz. Dr.Praveen.M.P as from the facts as Dr.K.G.Beena had on transfer joined the department of Rachana

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Sareera with effect from 8.11.1995 whereas the petitioner Dr.Praveen.M.P. only with effect from 01.08.1995. Government had never given any sanction for creation of the additional post in the subject of Kaumarabrithya and therefore, lien of Dr.K.G.Beena could not have been permitted to continue for infinite period. As per the existing Rules, the seniority has to be department-wise ie., the subject in which the faculties is assigned to impart. The seniority list has been taken into consideration while passing the order but none of the parties have placed on record therefore Dr.Praveen.M.P cannot derive the benefit. The writ petition is bereft of the particulars and thus liable to be dismissed.

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I have heard the learned counsel for the parties and appraised the paper book.

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The fact that Dr.Praveen.M.P. had joined as tutor in the college- 1^st respondent against leave vacancy on 07.03.1994 and was given a regular vacancy with effect from 01.08.1995 in

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the department of Rachana Sareera that too only on achieving the PG qualification in 2009, promoted as Assistant Professor and Associate Professor with effect from 05.06.2009 and 11.04.2018 are not in dispute. It is also not in dispute that at the relevant point of time, there were seven department in the college and on bifurcation in 2005, 13+1 departments were carved out and options were invited in the same very year from respective faculty members. Dr.Praveen.M.P had given an option for three subjects whereas Dr.K.G.Beena, for three subjects. Thus Dr.K.G.Beena had never opted for “Rachana Sareera”. Considering the option, respondent Calicut University as it then was till December 2009 when it was bifurcated into Kerala University of Health Sciences, assigned the subject of Rachana Sareera to Dr.K.G.Beena with a lien in Kaumarabrithya, as, though there was sanctioned posts available in the subject opted by Dr.K.G.Beena, all were manned by the faculty. Though there had been a direction by this Court for creation of posts in Kaumarabrithya but no action was taken thereon. Be that as it may. The arrangements as done after 2005 ought to have continued but aggrieved of having assigned the lien,

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Dr.K.G.Beena had approached this Court leading to series of writ petitions as noticed above, which I would not be repeating in order to avoid repetition. All the orders passed by the University of Calicut challenged from time to time. Directions have been issued to continue with the arrangements of allowing Dr.K.G.Beena to impart the subject of Rachana Sareera with a lien in Kaumarabrithya, with intend that as and when the post would be either fallen vacant or created, Dr.K.G.Beena would be accommodated. But when the last order dated 13.09.2017 was passed, it was noticed that though the post of professor had fallen vacant in the department of Kaumarabrithya and was eligible for the said post in the said department, has gone unnoticed in the impugned order dated January, 2019 passed after almost one and half year. Thus the order impugned reveals not only non-application of mind, lacks certain reasons of having not noticed the occurrence of vacancy. A quietus would have been brought had the Kerala University of Health Sciences noticed the factum of occurrence of the vacancy of professor and it is a matter of record that Dr.K.G.Beena had been discharging the duties of Associate Professor in Rachana Sareera and case of

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the promotion of Dr.Praveen.M.P., petitioner in two writ petitions was ordered to be kept pending. There was no occasion for Kerala Health Sciences to determine the Seniority as it tantamount to reviewing the options submitted by Dr.K.G.Beena, which is a total illegality and a contumacious act. No rules as applicable to viz-a-viz the seniority department-wise had been referred to. Had the University of Health Sciences noticed the occurrence of the vacancy on account of superannuation or demission of any of the faculty in Kaumarabrithya way back in 2017, the controversy would not have reached this Court. After all the parties have undergone the series of litigations as noticed above. A subsequent event had also arisen in as much as that Sri.Madhusudhanan has also left the job. Thus, there are more than one vacancy in the department of Kaumarabrithya now the question would arise again, in case this Court does not notice the grievance of Dr.KG.Beena of having been assigned in the parent department ie., if lien assigned in the seniority department-wise, I am of the view that it is a fit case were respondent University is required to revisit the issue on some of the important points which this Court noticed over and above the points which the

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respective parties would raise at a relevant point of time: (i). It is a conceded position on record that much before September 2017 the vacancy of professor in the department of Kaumarabrithya had occurred. Dr.K.G. Beena could have been easily adjusted there and her seniority could have been determined without any demur of as there was no fault of her in not joining the department on account of non-availability of the

¶134

said post and was assigned a temporary arrangement in the department of Rachana Sareera.

¶135

(ii) Dr.Praveen had from right day one from 1995 had been discharging duty of tutor which was re-designated as Assistant Professor in the department of Rachana Sareera and had been asking for promotion by fulfilling the applicable conditions.

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(iii) The Kerala University of Health Sciences would also notice the fact that the grievances of both Dr.Praveen.M.P. and Dr.K.G.Beena can be addressed by assigning the respective departments in view of occurrence of vacancy of professor in 2017 as well as during the pendency of the writ petitions.

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(iv) University would also not shy away in assigning the seniority to both the parties who have rendered the service

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¶140

without any fault of theirs. In other words, it would not come in the way of Dr.K.G.Beena of assigning seniority by rendering duty in the department of Rachana Sareera, ie., cannot be ignored by

¶141

taking the aid of assigning the seniority department-wise. The period rendered by Dr.K.G.Beena is required to be considered for assigning the seniority in the department of Kaumarabrithya and the seniority of Dr.Praveen.M.P. would be maintained and determined in the department of Rachana Sareera.

¶142

(v) University would also take into consideration the fact that another post has fallen vacant as the 7^th respondent left the service, who was discharging his duties in the department of Kaumarabrithya.

¶143

The aforementioned directions are being issued for redressing the grievance of both Dr.Praveen.M.P. and Dr.K.G.Beena as they have been for vindication of the grievances time and again had to approach this Court and would also save the cost of litigation. This court also leaves open for the respective parties to take up all other issues which they deem it appropriate in support of the respective cases, in view of the observations made herein above much less any other rules or any

¶144

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¶146

provisions of law applicable to the lis.

¶147

Accordingly, order dated 21.01.2019 Ext.P17 is quashed. Kerala University of Health Science is directed to take a call within a period of two months from the date of receipt of copy of this judgment by affording an opportunity of personal hearing to the affected parties either through virtual or physical mode much less in accordance with law. As a consequence of setting aside the impugned order, the order of promotion of Dr.K.G.Beena as Head of the Department is ordered to be kept in abeyance till a decision is taken and assignment of actual seniority in the respective departments.

¶148

Writ petitions are disposed of.

Sd/-

AMIT RAWAL

JUDGE

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¶153

¶154

APPENDIX OF WP(C) 2543/2019

¶155

PETITIONER EXHIBITS

¶156

EXHIBIT P1	TRUE COPY OF THE ORDER DATED 23-02-
	2013 PROMOTING THE PETITIOENR AS LECTURER/ASST. PROFESSOR
EXHIBIT P2	TRUE COPY OF THE ORDER DATED 11-04- 2018 PROMOTING THE PETITIONER AS ASSOCIATE PROFESSOR
EXHIBIT P3	TRUE COPY OF THE OPTION FORM SUBMITTED BY THE 6TH RESPONDENT
EXHIBIT P4	TRUE COPY OF THE PROCEEDINGS DATED 30- 05-2000 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P5	TRUE COPY OF THE OPTION FORM SUBMITTED BY THE PETITIONER.
EXHIBIT P6	TRUE COPY OF THE ORDER DATED 12-06- 2000 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P7	TRUE COPY OF THE ORDER DATED 17-06- 1995 ISSUED BY THE GOVERNMENT.
EXHIBIT P8	TRUE COPY OF THE COMMUNICATION DATED 02-09-1995 ISSUED BY THE GOVERNMENT.
EXHIBIT P9	TRUE COPY OF THE ORDER DATED 19-12- 1995 ISSUED BY THE CALICUT UNIVERSITY.
EXHIBIT P10	TRUE COPY OF THE JUDGMENT DATED 03-10- 2007 PASSED BY THIS HON'BLE COURT IN W.P(C) NO. 29200/2007
EXHIBIT P11	TRUE COPY OF THE JUDGMENT DATED 10-08- 2009 PASSED BY THIS HON'BLE COURT IN W.P(C) NO. 7529/2008.
EXHIBIT P12	TRUE COPY OF THE JUDGMENT DATED 22-12- 2009 PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN W.A NO. 2385/2009.
EXHIBIT P13	TRUE COPY OF THE ORDER DATED 02-05-
	2011 ISSUED BY THE CALICUT UNIVERSITY.
EXHIBIT P14	TRUE COPY OF THE JUDGMENT DATED 07-03- 2017 PASSED BY THIS HON'BLE COURT.
EXHIBIT P15	TRUE COPY OF THE ORDER DATED 13-09-
	2017 ISSUED BY THE CALICUT UNIVERSITY.
EXHIBIT P16	TRUE COPY OF THE JUDGMENT DATED 25-07-
	2018 PASSED BY THIS HON'BLE COURT IN W.P(C) NO. 31548/2017.

¶157

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¶159

EXHIBIT P17	TRUE COPY OF THE ORDER DATED 21-01- 2019 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P18	TRUE COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 28.01.2019.
EXHIBIT P19	TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 28.01.2019.
EXHIBIT P20	TRUE COPY OF THE COVERING LETTER DATED 24.01.2019.
EXHIBIT P21	TRUE COPY OF THE ORDER DATED 14.02.2005.
EXHIBIT P22	TRUE COPY OF THE CERTIFICATE DATED 10.07.2015 ISSUED BY THE CALICUT UNIVERSITY.
EXHIBIT P23	TRUE COPY OF THE CERTIFICATE DATED 31.03.2004 ISSUED BY THE DISTRICT PANCHAYATH, THRISSUR.
EXHIBIT P24	TRUE COPY OF THE CERTIFICATE ISSUED BY THE DIRECTORATE OF AYURVEDA MEDICAL EDUCATION, GOVERNMENT OF KERALA.
EXHIBIT P25	TRUE COPY OF THE CERTIFICATE ISSUED BY THE GOVERNMENT AYURVEDA COLLEGE, THIRUVANANTHAPURAM.

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RESPONDENTS EXHIBTTS

¶161

EXT.R6(a)	TRUE PHOTOCOPY OF THE APPOINTMENT ORDER NO.E1-3026/90/AVC DATED
	06.08.1997 OF THE 6TH RESPONDENT
EXT.R6(b)	TRUE PHOTOCOPY OF THE ORDER DATED 03.11.1994 ISSUED BY THE GOVERNMENT
	APPOINTING THE 6TH RESPONDENT AS TUTOR IN OLLUR AYURVEDA COLLEGE BY MUTUAL TRANSFER
EXT.R6(c)	TRUE PHOTOCOPY OF THE PROMOTION ORDER NO.A1/1273/9./VAC DATED 26.02.1999
EXT.R6(d)	TRUE PHOTOCOPY OF THE DEGREE CERTIFICATE EVIDENCING ACQUISITION OF M.D IN SALYATANTHRA DATED 23.08.2003.
EXT.R6(e)	TRUE PHOTOCOPY OF THEAMENDED NOTIFICATION ISSUED BY THE CALICUT
	UNIVERSITY PUBLISHED IN THE GAZETTE DATED 26.06.1999.
EXT.R6(f)	TRUE PHOTOCOPY OF THE OFFICE NOTE

¶162

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¶163

¶164

	DATED 22.04.2000 ISSUED BY THE PRINCIPAL OF THE COLLEGE
EXT.R9(g)	TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THE ORDER G.O. MS. NO. 148/96/H&fwd DATED 19.03.1996 ALONG WITH ANNEXURE
EXT.R6(h)	TRUE PHOTOCOPY OF THE RELEVANT PAGES OF THEREGULATIONS ISSUED BY THE CENTRAL COUNCIL FOR INDIAN MEDICINE
EXT.R6(i)	TRUE PHOTOCOPY OF THE OPETION FORM DATED 15.05.2000 SUBMITTED BY THE 6TH RESPONDENT
EXT.R6(j)	TRUE PHOTOCOPY OF THE RELEVANT PAGE OF TEH ORDER DATED 30.05.2000 ISSUED BY THE RESPONDENTS 1 AND 2
EXT.R6(k)	TRUE PHOTOCOPY OF THE ORDER NO.GAII/A1/2265/98 DATED 15.02.20008 ISSUED BY THE UNIVERSITY OF CALICUT
EXT.R6(l)	TRUE PHOTOCOPY OF THE ORDER NO.GAII/A1/2751/2007 DATED 15.02.2008 ISSUED BY THE UNIVERSITY OF CALICUT
EXT.R6(m)	TRUE PHOTOCOPY OF THE JUDGMENT DATED 10.08.2009 IN W.P.(C) NO.7529/2008
EXT.R6(n)	TRUE PHOTOCOPY OF THE APPOINTMENT JUDGMENT DATED 22.12.2009 IN W.A.NO.2385/2009
EXT.R(o)	TRUE PHOTOCOPY OF THE ORDER NO.GA II/A1/174/2010 DATED 02.05.2011 OF THE UNIVERSITY OF CALICUT
EXT.R6(p)	TRUE PHOTOCOPY OF THE COMMON JUDGMENT DATED 07.03.2017 IN W.P.(C) NO.13960/2011
EXT.R6 (q)	TRUE PHOTOCOPY OF THE ORDER NO.A1/1318/2012/VAC DATED 24.06.2014 ISSUED BY THE 1ST RESPONDENT
EXT.R6(r)	TRUE PHOTOCOPY OF THE ORDER NO.E4/1596/2017/D A M DATED 27.06.2017 OF THE DIRECTOR OF AYURVEDA MEDICAL EDUCATION APPROVING THE APPOINTMENT OF THE 6TH RESPONDENT
EXT.R6(s)	TRUE PHOTOCOPY OF THE ORDER U.O.NO.11340/2017/ADMN. DATED 13.09.2017 ISSUED BY THE CALICUT UNIVERSITY
EXT.R6(t)	TRUE PHOTOCOPY OF THE ORDER

¶165

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¶166

¶167

NO.A1/992/2010/VAC DATED 11.04.2018 ISSUED BY THE VAIDYARATNAM AYURVEDA COLLEGE, OLLUR, THALIKKATTUSSERY EXT.R6 (u) TRUE PHOTOCOPY OF THE INTERIM ORDER DATED 10.07.2014 IN W.P. (c).NO.8629/2014 EXT.R6 (v) TRUE PHOTOCOPY OF THE ENDORSEMENT ISSUED BY THE 6TH RESPONDENT DATED 28.01.2019 EXT.R7(a) A TRUE COPY OF THE PROCEEDINGS NO.A1/295/94/VAC DATED 08.11.1994 APPOINTING THE 6TH RESPONDENT EXT.R7(b) A TRUE COPY OF THE COMMUNICATIONNO.F NO.4-54/2010 – AY DATED 21.07.2010 ISSUED BY THE CCIM TO THE PRINCIPAL, KOTTAKKAL AYURVEDA COLLEGE

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PETITIONER EXHIBITS

EXHIBIT P1	TRUE COPY OF APPOINTMENT ORDER DATED
	6.8.91 ISSUED VAIDYARATNAM P.S.VARRIER AYURVEDA COLLEGE, KOTTAKKAL TO THE PETITIONER.
EXHIBIT P2	TRUE COPY OF THE ORDER DATED 3.11.1994 ISSUED BY THE GOVERNMENT
EXHIBIT P3	TRUE COPY OF THE ORDER NO.A1/1273/93/VAC DATED 26.02.1999 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT P4	TRUE COPY OF THE CERTIFICATE EVIDENCING M.D. IN SALYATHANTRA OF THE PETITIONER ISSUED BY THE UNIVERSITY OF KERALA.
EXHIBIT P5	TRUE COPY OF THE NOTIFICATION PUBLISHED IN THE GAZETTE DATED 29.6.1999.
EXHIBIT P6	TRUE COPY OF THE OFFICE NOTE ISSUED BY THE PRINCIPAL OF 4TH RESPONDENT COLLEGE.
EXHIBIT P7	TRUE COPY OF THE RELEVANT PAGES OF G.O(MS)NO.143/96/H&FWD DATED 19.3.96 ALONG WITH ANNEXURE ISSUED BY THE GOVERNMENT.
EXHIBIT P8	TRUE COPY OF RELEVANT PAGE OF REGULATIONS ISSUED BY THE GOVERNMENT OF INDIA.
EXHIBIT P9	TRUE COPY OF OPTION FORM DATED 15.05.2000 SUBMITTED BY THE PETITIONER.
EXHIBIT P10	TRUE COPY OF THE RELEVANT PAGE OF ORDER NO.A1/1627/2000 DATED 30.5.2000 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P11	TRUE COPY OF ORDER NO.GAII/A1/2565/98 DATED 14.2.05 ALONG WITH APPENDIX ISSUED BY THE UNIVERSITY OF CALICUT.
EXHIBIT P12	TRUE COPY OF ORDER NO.GAII/A1/2751/2007 DATED 15.2.2008 ISSUED BY THE UNIVERSITY OF CALICUT.
EXHIBIT P13	TRUE COPY OF JUDGMENT DATED 10.08.2009 IN WPC NO.7529/2008 OF THIS HON'BLE COURT.
EXHIBIT P14	TRUE COPY OF JUDGMENT DATED WA NO.2385/2009 OF THIS HON'BLE COURT

¶173

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¶174

¶175

EXHIBIT	P15 TRUE COPY OF ORDER NO.GAII/A1/174/2010 DATED 2.5.2011 ISSUED BY THE UNIVERSITY OF CALICUT.
EXHIBIT	P16 TRUE COPY OF JUDGMENT DATED 7.3.2017 IN WPC NO.13960/2011 OF THIS HON'BLE COURT.
EXHIBIT	P17 TRUE COPY OF THE ORDER NO.A1/1318/2012/VAC DATED 24.6.2014 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT	P18 TRUE COPY OF ORDER NO.E4/1596/2017/DAME DATED 27.6.2017 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT	P19 TRUE COPY OF ORDER NO.11340/2017/ADMN. DATED 13.9.2017 ISSUED BY THE CALICUT UNIVERSITY.
EXHIBIT	P20 TRUE COPY OF ORDER DATED 4.10.2017 IN WPC NO.31548/2017 OF THIS HON'BLE COURT.
EXHIBIT	P21 TRUE COPY OF ORDER NO.A1/992/2010/VAC DATED 11.4.18 ISSUED BY THE 4TH RESPONDENT.
EXHIBIT	P22 TRUE COPY OF ORDER DATED 10.7.2014 IN WPC NO.8629/2014 OF THIS HON'BLE COURT.
EXHIBIT	P23 TRUE COPY OF THE REPRESENTATION DATED 5.6.2018 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT	P24 TRUE PHOTOCOPY OF ORDER NO.GA.II/A1/245299 DT. 29.9.2001 ISSUED BY THE CALICUT UNIVERSITY.

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RESPONDENT EXHIBITS

¶177

EXHIBIT	R5 (a)	TRUE COPY OF THE	ORDER
		NO.GA.II/B3/1351/	94 DATED 08.12.1994
		ISSUED BY THE UNI	VERSITY OF CALICUT.
EXHIBIT	R5 (b)	TRUE COPY OF THE	ORDER NO.A1/1505/93/VAC
		DATED 07.03.1994	ISSUED BY THE MANAGER,
		VAIDYARATNAM AYUR	VEDA COLLEGE, OLLUR.
EXHIBIT	R5 (c)	TRUE COPY OF THE	COMMUNICATION
		NO.54181/D3/95/H	AND FWD DATED
		17.06.1996 OF THE ALONG WITH TYPED	GOVERNMENT OF KERALA, COPY.
EXHIBIT	R4(a)	TRUE COPY OF THE	ORDER
		NO.6252/ACI/GEN/A	3/KUHS/2013 DATED
		21/01/2019 ISSUED	BY THE 2ND RESPONDENT.

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¶179

¶180

EXHIBIT R4(b)	TRUE COPY OF	THE	ORDER
	NO.A1/652/201	7/VA	C DATED 28/01/2019
	ISSUED BY THE	4TH	RESPONDENT.
EXHIBIT R4(c)	TRUE COPY OF	THE	ORDER
	NO.A1/904/201	8/VA	C DATED 28/01/2019
	ISSUED BY THE	2ND	RESPONDENT.

¶181

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¶182

¶183

APPENDIX OF WP(C) 3827/2020

¶184

PETITIONER EXHIBITS

¶185

EXHIBIT P1	TRUE COPY OF THE ORDER DATED 23/02/2013 PROMOTING THE PETITIONER AS LECTURER/ASST. PROFESSOR.
EXHIBIT P2	TRUE COPY OF THE ORDER DATED 11/04/2018 PROMOTING THE PETITIONER AS ASSOCIATE PROFESSOR.
EXHIBIT P3	TRUE COPY OF THE OPTION FORM SUBMITTED BY THE 6TH RESPONDENT.
EXHIBIT P4	TRUE COPY OF THE PROCEEDINGS DATED 30/05/2000 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P5	TRUE COPY OF THE OPTION FORM SUBMITTED BY THE PETITIONER.
EXHIBIT P6	TRUE COPY OF THE ORDER DATED 12/06/2000 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P7	TRUE COPY OF THE ORDER DATED 17/06/1995 ISSUED BY THE GOVERNMENT.
EXHIBIT P8	TRUE COPY OF THE COMMUNICATION DATED 02/09/1995 ISSUED BY THE GOVERNMENT.
EXHIBIT P9	TRUE COPY OF THE ORDER DATED 19/12/1995 ISSUED BY THE CALICUT UNIVERSITY.
EXHIBIT P10	TRUE COPY OF THE JUDGMENT DATED 03/10/2007 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.29200/2007.
EXHIBIT P11	TRUE COPY OF THE JUDGMENT DATED 10/08/2009 PASSED BY THIS HON'BLE COURT IN W.P(C) NO.7529/2008.
EXHIBIT P12	TRUE COPY OF THE JUDGMENT DATED 22/12/2009 PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN W.A.NO.2395/2009.
EXHIBIT P13	TRUE COPY OF THE ORDER DATED 02/05/2011 ISSUED BY THE CALICUT UNIVERSITY.
EXHIBIT P14	TRUE COPY OF THE JUDGMENT DATED 07/03/2017 PASSED BY THIS HON'BLE COURT.
EXHIBIT P15	TRUE COPY OF THE ORDER DATED 13/09/2017 ISSUED BY THE CALICUT UNIVERSITY.
EXHIBIT P16	TRUE COPY OF THE JUDGMENT DATED
	25/07/2018 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.31548/2017.

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¶187

		35
EXHIBIT	P17 TRUE COPY ISSUED BY	OF THE	THE 3RD	ORDER DATED 21/01/2019 RESPONDENT.
EXHIBIT	P18 TRUE COPY RESPONDENT	OF DA	THE TED	ORDER ISSUED BY THE 1ST 28/01/2019.
EXHIBIT	P19 TRUE COPY RESPONDENT	OF DA	THE TED	ORDER ISSUED BY THE 2ND 28/01/2019.
EXHIBIT	P20 TRUE COPY ALONG WITH ENGLISH.	OF IT	THE S TR	ORDER DATED 10/12/2019 UE TRANSLATION IN
EXHIBIT	P21 TRUE COPY	OF	THE	ORDER DATED 16/12/2019.
EXHIBIT	P22 TRUE COPY DESHABHIMA	OF NI	THE DAIL	NOTIFICATION PUBLISHED Y DATED 17/01/2020.

Dr.Praveen.M.P. v. the Manager

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Dr.Praveen.M.P. v. the Manager

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