Kerala High Court
Narayanan vs Manager, S.D. College on 12 September, 2001
Author: M.R. Hariharan Nair
Bench: M.R. Hariharan Nair
JUDGMENT M.R. Hariharan Nair, J.
1. The main question that arises for consideration in these Original Petitions is whether on repatriation to the private aided college from another University where a teacher was working on deputation, he would be entitled to retain his original seniority, albeit Rule 8 Part II of the Kerala State and Subordinate Services Rules, 1958 is inapplicable to teachers working in private colleges under the Universities.
2. The case projected in O.P. No. 11591/2001 is as follows: While working as Selection Grade Lecturer in History in the Sanatana Dharma College, Alappuzha (for short 'the College'), the petitioner herein was sent on deputation to the Sree Sankaracharya University of Sanskrit, Kalady (for short 'the University') as Lecturer vide Ext. P1 order dated 24.7.95. As per Ext. R1(b) order dated 31.7.95, he was relieved of his duties in the S.D. College. In due course, the deputation post was redesignated as 'Reader'. Pursuant to the Full Bench decision in Sree Sankaracharya University of Sanskrit v. State (1996 (2) KLT 378), the appointment of the petitioner in the University was terminated. As per Ext. R1(f) letter, the principal of the S.D. College, Alappuzha, clarified that the petitioner had no lien in the college, though he had not submitted any resignation letter for getting relieved for joining the University in 1995. It was also mentioned in the said letter that a substitute had since been appointed in the vacancy caused by relief of the petitioner. The Principal had also given Ext. P4 No objection Certificate for absorption of the petitioner in the services of the University; but that was before the Full Bench of this Court declared that the appointments made in the University were irregular and that the services of the staff and teachers irregularly appointed should be terminated. The petitioner was relieved of his duties in the University with effect from 8.9.1997 as per Ext. R1(i) order. On the very next day, namely, on 9.9.1997, the petitioner made a request to the College for re-appointment. The College responded swiftly. On the very next day, the petitioner got Ext. R1(h) reply stating that his request was rejected obviously for the reason that another person had already taken his place.
3. The Government considered the grievances of persons like the petitioners and issued Ext. P6 order on 4.2.1998 sanctioning creation of supernumerary posts to provide re-appointment of teachers repatriated from the University. One of the posts so created was for absorption of the petitioner as Senior Scale Lecturer in History in the S.D. College, Alappuzha. As per Ext. P17 order issued on 20.2.1998, the petitioner was appointed in the said post. Teachers like the petitioner approached the Government once again with their grievances. In Ext. P7 order dated 17.5.1999 the Government clarified that the period of service of person thrown out from the University would be treated as on deputation. The Government also issued Ext. P8 order on 10.3.2000 clarifying that the period spend by the teachers without appointment ie., between the date of relief from the University and the date of re-joining in the parent institutions would be treated as 'duty' for all purpose except for pay and allowances.
4. The impact of the said order was that the period during which the petitioner was out of service after relief from the University and until re-appointment in the College ie., form 9.9.1997 to 20.2.1998 would be period of duty though without entitlement for pay and allowances. The petitioner then put in Ext. P9 representation to the Director of Collegiate Education, Thiruvananthapuram, requesting that in view of Ext. P3 order the said period from 9.9.1997 to 19.2.1998 might also be regularised as service in the college. In Ext. P10 letter, the college also clarified to the University that the period of service of the petitioner in the University is treated as on deputation and the petitioner is to be given his due increments for the period of service in the University as well. It was also mentioned in the statement accompanying Ext. P10 that the appointment of the petitioner as Selection Grade Lecturer in the college was on substantive basis.
5. When a vacancy arose in the post of Head of Department in the History Department, the respondent 5 to 8 who were originally juniors to the petitioner objected to the appointment of the petitioner in the post vide Ext. P11. Taking into account the said objection also, the management of the college gave charge of the post of Head of Department to the 5th respondent - Hemalatha, who, going by the petitioner's original date of commencement of service in the College, was his junior.
6. The petitioner has approached this Court with the prayer that all service benefits including seniority and monetary benefits be given to the petitioner and also for a direction to the respondents 1 and 2 to treat the petitioner as seniormost in the Department of History in the college by virtue of the Government Order treating the petitioners as on deputation during the period of his absence for service in the University and to post him as Head of the Department of History in the S.D. College, Alappuzha, when he found that Ext. P13 representation made by him staking his claim for the post of Head of Department did not yield any result.
7. The contention of the respondents 5 to 8 is that by getting relief from the college for joining University service, the petitioner must be deemed to have relinquished all his claims in the college and that his re-appointment made in the college as per Ext. P17 order based on creation of supernumerary posts by the Governments as a compassionate measure will not in any way entitle him to retain his original seniority especially when he had spent the period from 9.9.97 to 19.2.98 without working in the University or in the College and purely awaiting compassionate orders, if any, from the Government. It is also argued that in the absence of any provision like Rule 8 of the KS & SSR the petitioner cannot raise any valid claim for retention of his original seniority.
8. The question for consideration is whether the period of absence from the college from 1.8.95 to 20.2.98 can be treated as on duty with all service benefits including seniority in view of the deputation to the University and re-appointment given based on Government Orders.
9. None of the documents produced in this case will show that it was based on any application made by the petitioner to the University that he was appointed as Lecturer there. There is also nothing to show that the petitioner joined the University after resigning his post in the college. On the other hand, Ext. P1 specifically states that he was 'relieved' to take up the new appointment on deputation basis. In fact, in Exts. P7 and P8 the Government has specified beyond any ambiguity that the entire period of service until rejoining the college would be treated as on deputation and on duty. It is also made clear in Ext. P10 that the petitioner was holding a substantive appointment in the college even at the time when the left on deputation to the University.
10. Statute 39 of the Kerala University First Statutes provides as follows:
"39. Application of the Kerala Service Rules to the teachers.-
1) Subject to the provisions of the Kerala University Act, 1974 and the Statutes issued thereunder, the rules contained in Parts I and II of the Kerala Service Rules for the time being in force, except those mentioned below, shall, so far as may be, apply to the teachers of private colleges.
2) All orders, Government decisions, rulings and notifications issued by the Government with reference to any provision in Parts I and II of the Kerala Service Rules which are applicable to the teachers of private colleges, shall also so far as may be, apply to them, subject to such modification as the context may require.
XXX XXX XXX XXX"
11. Under Rule 12(18) Part 1 of the Kerala Service Rules a lien is the title of an officer to hold substantively either immediately or on termination of a period or periods of absence, a permanent post to which he has been appointed substantively. The petitioner was holding a substantive appointment in the College. He was only relieved to join the University. It follows that it was retaining his lien that the petitioner left for the University on deputation. The further question therefore, is only whether in view of the said lien, he can claim his original seniority in the college when re-appointed. Rule 8 Part II of the KS & SSR provides as follows:
"8. Members absent from duty.-
The absence of a member of a service from duty in such service, whether on leave, other than leave without allowances of taking up other employment on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit, render him ineligible in his turn-
(a) for re-appointment to a substantive or officiating vacancy in the class, category, grade or post in which he may be a probationer or an approved probationer;
(b) for promotion from a lower to a higher category in such service; and
(c) for appointment to any substantive or officiating vacancy in another service for which he may be an approved candidate; as the case may be, in the same manner as if he has not been absent. He shall be entitled to all the privileges in respect of appointment, seniority, probation and appointment as full member which he would have enjoyed but for his absence:
Provided that subject to the provisions of Rule 18 he shall satisfactorily complete the period of probation on his return.
Provided further that a member of a service who is appointed to another service and is a probationer or an approved probationer in the latter service, shall not be appointed under Clause (c) to any other service for which he may be an approved candidate unless he relinquishes his membership in the latter service in which he is a probationer or an approved probationer:
Provided further that this rule shall not have retrospective effect so as to disturb the decisions taken by the Travancore-Cochin Government in respect of the Travancore-Cochin personnel:
Provided also that this rule shall not apply in the case of a member of a service whose absence from duty in such service is by reason of his appointment to another service not being Military service, solely on his own application, unless such appointment is made in the exigencies of public service.
Note 1:- An appointment made in pursuance of applications invited, sponsored or recommended by Government or other competent authority shall be deemed to be an appointment made in the exigencies of Public Service for the purpose of this rule.
Note 2:- The benefit of this rule shall not be available to a person holding a post in any class or category in a service if his appointment to that post was from a post in another class or category in the same service".
12. There cannot by any doubt that if the said Rule 8 is applicable to the petitioner, he would, by virtue of his lien in the college, be entitled to retain his original seniority on repatriation after the termination of the deputation; but then the Statute 39 of the Kerala University First Statutes or of that matter any other provision therein does not specify that the K.S. & S.S.R. would be applicable to the teachers working under the Universities.
13. During hearing, the learned counsel for the petitioner placed reliance on the decision in Balakrishnan Nair v. State and Ors. (1998 (2) KLJ 99) where it was provided that a member of a service who was absent from duties in such service on return back to the service would be eligible for appointment to a substantive or officiating vacancy in the class, category, grade or post and that the rule contemplates a situation when the member is absent from duty on leave, on foreign service, on or deputation and that if a member of a service is appointed in the exigencies of public service, he would be entitled to get the benefit of the main section. When an officer is appointed substantively to a permanent post, he acquires a lien on that post and ceases to hold the lien which he acquired previously on any other post. The lien of an officer cannot be suspended or terminated without his consent. Note 1 of Rule 8 KS & SSR clearly states that when a member of a service gets an appointment in another Department on the invitation of the Government or on being sponsored or recommended by the Government, such appointment would be deemed to be under exigencies of service. It was therefore held that the lien of a member of a service to a post in the parent Department is not lost automatically when he joins another Department. By mere completion of probation it cannot be said that a person has been substantively appointed to a permanent post and such being the position, unless a person is confirmed under Rule 24 of K.S. & S.S.R. in the deputation post, it cannot be said that he has lost his lien in the parent department.
14. Since Rule 8 of the K.S. & S.S.R. is not specifically applicable to the petitioner, the said decision cannot have any binding force with regard to the question of seniority raised by him. At the same time, in the absence of anything to show that the petitioner was given any substantive appointment in the University and sine his service, even according to the admissions of the management, was on deputation, there is no reason to deny the petitioner the benefit of seniority once he is re-absorbed. Even if Rule 8, as such, is inapplicable to the case in hand, in order to give true meaning, purport and effect to the lien to which the petitioner is entitled under the provisions of the K.S.R. the principles in Rule 8 of the KS & SSR requires to be imported. The application of the principles of equity, justice and good conscience also require that the petitioner, who was thrown out of appointment from the University for no fault of his and who had not actually requested for that deputation; but was sent on exigencies of service, should be repatriated with all attendant benefits including seniority.
15. During hearing, it was stated that the 5th respondent, who is now holding charge as Head of the Department is actually a student of the petitioner. It will be really humiliating for him to work under his former student. It is true that the petitioner was not doing any work as teacher between 9.9.97 and 19.2.1998 when he awaiting re-appointment in the college following repatriation; but that aspect has little significance since the Government has regularised that period also as duty vide Ext. P8 order and the management of the college has also accepted the position vide Ext. P8(b)(o) and P8(b)(ii). In the circumstances, I am of the view that the petitioner's claim for seniority over respondents 5 to 8 is perfectly justified.
16. What remains to be considered is the challenge with regard to the Government Orders raised in O.P. No. 31780/2000 which is filed by the 5th respondent in O.P. No. 11591/2000. The prayer in the Original Petition is to quash Exts. P3 to P6 orders of the Government on the ground that they are violative of Articles 13, 14 and 16 of the Constitution of India. Out of these, Ext. P3 is the Government Order dated 17.3.1997 which was marked as Ext. P5 in the other Original Petition. Likewise, Exts. P4 to P6 are the Government Orders which were marked as Exts. P6 to P8 in O.P. No. 11591/2000. The details of these orders have already been discussed in earlier paras of this judgment.
17. On hearing the petitioner in O.P. No. 31780/2000, I am not satisfied that there exists any justification for striking off the said Government Orders as unconstitutional. It was pursuant to the orders of this Court vide judgment in Sree Sankaracharya University of Sanskrit v. state (1996 (2) KLT 378) that the teachers had to be repatriated. It was for the Government to ameliorate their difficulties and redress their grievances especially when it was not pursuant to any resignation that the teachers left their parent institutions and joined the University. The persons for whose benefit the said Government Orders were passed form a class by themselves. There is no arbitrary discrimination shown to them. it is to be remembered here that the present petitioner is a person who joined the college much later than the date of joining of the 2nd respondent. At the time, when the petitioner joined duty in the College on 26.11.1979 she had no expectation at all that she could steal a march over the 2nd respondent, who is said to be her former teacher. No equity is hence available in favour of the petitioner. The Government Orders were issued to perpetrate justice and in the absence of any arbitrariness. I am not satisfied that there exists justification for striking down the said Government Orders. It is also to be mentioned here that treating of the period of deputation spent by the 2nd respondent in the University as period of duty in the college was not merely based on Exts. P3 to P6; but taking into consideration of various other Government Orders like Ext. P20 marked in the other Original Petition. When there is no prayer for setting aside those Government Orders, the petitioner cannot be granted the relief merely by striking down Exts. P3 to P6.
18. The contention that the Government has absolutely no right to intervene in administrative matters of private colleges has also no merit because under the subsisting system evidenced by Ext. P16 Government Order, the Government has the responsibility to pay for these teachers and as such Government has control over the sanction of posts in the matter of prescribing a method of appointment of teachers and in the matter of promotions. Such general powers will certainly include the power to intervene to administer justice to the persons who were on deputation to the University when the deputation has ceased to be effective.
19. In the circumstances, O.P. No. 31780/2000 is found to be without merit and it is dismissed.
20. In O.P. No. 11591/2000, there will be a direction to the respondents 1 to 4 to implement the Government Orders treating the petitioner as on deputation for the period from 1.8.1995 to 20.2.1998 and to grant to the petitioner all service benefits including seniority and monetary benefits but subject to the limitations in Exts. P8 and P14. There will also be a direction to the respondents 1 and 2 to treat the petitioner as the seniormost in the Department of History in the S.D. College, Alappuzha and to provide posting to the petitioner as Head of the Department of History in the S.D. College, Alappuzha, and to hand over charge to him from the 5th respondent, who is holding charge of the post.
20. O.P. No. 111591/2000 is disposed of as above.