Kerala High Court
Mar Athanasius College vs The Director Of Collegiate Education on 11 February, 2008
Bench: K.Balakrishnan Nair, P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 55 of 2008()
1. MAR ATHANASIUS COLLEGE, KOTHAMANGALAM,
... Petitioner
2. THE MAR ATHANASIUS COLLEGE ASSOCIATION,
Vs
1. THE DIRECTOR OF COLLEGIATE EDUCATION,
... Respondent
2. SRI. CIJU JOHN,
3. V.E. DEEPU, AGED 29 YEARS,
For Petitioner :SRI.GEORGE JACOB (JOSE)
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :11/02/2008
O R D E R
K.BALAKRISHNAN NAIR &
P.N.RAVINDRAN, JJ.
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W.A. NOS. 55 & 62 OF 2008
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Dated 11th February, 2008.
JUDGMENT
Balakrishnan Nair, J.
These two Writ Appeals arise out of the judgment in W.P.(C) No.36375/2003 dated 29.11.2007. The correctness of the promotion granted to a Lower Division Clerk to the post of Upper Division Clerk, superseding a senior L.D. Clerk by the Manager of an aided private College, is the point that arises for decision in these cases. We are also called upon to decide whether the said Manager is amenable to the writ jurisdiction of the Court.
W.A.No.55/2008:
2. This Writ Appeal is treated as the main case for the purpose of this judgment. The 3rd respondent herein was the writ petitioner. The appellants were respondents 2 and 3 in the writ petition. The writ petitioner approached this Court, challenging the proposal to promote the 2nd respondent to the post of U.D.Clerk, overlooking his claim. During the WA.NOS.55 & 62/08 2 pendency of the writ petition, the said respondent was promoted as U.D.C., ignoring his claim. So, the writ petition was amended, challenging the said promotion and other consequential orders.
3. The brief facts of the case are the following: The writ petitioner was working as Library Assistant in the Mar Athanasius College, Kothamangalam. There are three posts each of L.D.Clerk and U.D. Clerk in his College. He was promoted as L.D. Clerk by Ext.P1 order dated 1.2.2000. By Ext.P2 order dated 14.5.2002, his probation was declared with effect from 1.2.2001. He cleared the Account Test (Lower) held by the Public Service Commission in January 2002, the results of which were published in June, 2002. The 2nd respondent herein Mr.Ciju John was working as Lab/Library Assistant. He was promoted as L.D.Clerk by downgrading a vacant post of U.D.Clerk with effect from 7.8.2000 up to 15.3.2001. This was in the leave vacancy of Mr.M.A.Lazer, U.D. Clerk.
Again the 2nd respondent was accommodated in the leave vacancy of Mr.E.K.Krishnan, U.D. Clerk from 16.3.2001 to 15.6.2001. Later, in the retirement vacancy of Mr.M.A.Lazer, U.D. Clerk, which arose on 1.5.2001, he was promoted as L.D.Clerk, downgrading the post of U.D.C with effect from 1.5.2001. All these promotions appear to have been made by Ext.P4 proceedings of the management, issued some time before 25.3.2003, which WA.NOS.55 & 62/08 3 is the date of the covering letter of Ext.P4.
4. The writ petitioner filed Ext.P5 representation dated 14.7.2003, praying for promoting him as U.D.Clerk, being the seniormost qualified L.D.Clerk. The management called for a report on his representation, from the Senior Superintendent of the College. The said officer by Ext.P6, reported that the writ petitioner is eligible for promotion to the post of U.D. Clerk. As per Ext.P6, it was reported that the last day of the Account Test Examination taken by the writ petitioner was 5.1.2002 and therefore, he is eligible for promotion with effect from 5.1.2002. In Ext.P6 it was also stated that Mr.Ciju John, the 2nd respondent herein cannot be considered for promotion to the post of U.D.Clerk. Exts.P7 and P8 are the seniority lists of non-teaching staff of the petitioner's College, as on 1.11.2002 and 1.5.2003 respectively. In both the lists, the writ petitioner is shown as senior to the 2nd respondent. The said respondent passed the Account Test (Lower) in 1999. On coming to know about the proposal to promote the said respondent as U.D.C., the writ petitioner submitted Ext.P9 representation dated 13.10.2003 before the management, claiming promotion as U.D.Clerk. He also submitted Ext.P10 representation through proper channel on 10.11.2003 before the Director of Collegiate Education. But, ignoring his claim, Mr.Ciju John was promoted as U.D.Clerk, by Ext.P11 order dated WA.NOS.55 & 62/08 4 11.12.2003 with retrospective effect from 18.8.2001. In the meantime, the 2nd respondent's probation was already declared in the cadre of L.D. Clerk by Ext.P12 order dated 2.6.2003 with retrospective effect from 19.8.2001. In view of the writ petition filed by the petitioner, the appointment of Mr.Ciju John as U.D.Clerk was not approved by the Director of Collegiate Education, as evident from Ext.P12(a) communication dated 8.3.2004. Even though the promotion of the 2nd respondent as U.D. Clerk was not approved, he was further promoted as Head Clerk on 31.12.2004 and as Junior Superintendent on 30.9.2006. Those orders are produced and marked as Exts.P14 and P15. Initially, the writ petition was filed in 2003, claiming promotion as U.D. Clerk and also praying for a direction not to approve the promotion of the 2nd respondent as U.D. Clerk. Later, the writ petition was amended, producing Exts.P11 to P15 and also seeking to quash Exts.P11, P12, P14 and P15.
5. The appellants herein filed a counter affidavit, resisting the prayers in the writ petition. In the said counter affidavit it was submitted that the 2nd respondent, though junior in the cadre of L.D. Clerk, became test qualified in 1999. Since his probation in the cadre of L.D. Clerk was declared with effect from 18.8.2001, he was promoted as U.D. Clerk with effect from 18.8.2001, by order dated 11.12.2003. Since Account Test was an WA.NOS.55 & 62/08 5 obligatory qualification for promotion, the writ petitioner was entitled to be promoted only in June, 2002, when the results of the Account Test held by the P.S.C were declared. The 2nd respondent was rightly promoted to the post of U.D. Clerk and further promoted to higher posts in accordance with law. The 2nd respondent herein, who was the 4th respondent in the writ petition also filed a counter affidavit, supporting his promotion. The management has filed an additional counter affidavit and along with that Ext.R3(a) communication issued by the Director of Collegiate Education dated 25.7.2002 was produced. As per that communication, the post of U.D. Clerk remaining vacant was permitted to be downgraded as L.D.C post. Such downgraded post was to be restored as U.D.C post when a qualified hand is available for promotion. The management also produced Ext.R3(b) proceedings of the Deputy Director of Collegiate Education, showing the approval of the promotion of the 2nd respondent as L.D. Clerk with effect from 7.8.2000. The learned single Judge who heard the writ petition, allowed the same. It was held that the power given under Ext.R3
(a) communication for downgrading the post of U.D. Clerk has been arbitrarily used in this case. The learned Judge also condemned the retrospective upgradation of the post of L.D. Clerk, to accommodate the 2nd respondent herein. Since the post of L.D. Clerk was upgraded only on WA.NOS.55 & 62/08 6 11.12.2003, the learned Judge held that the vacancy of U.D. Clerk arose only on that date and therefore, going by the rival claims, the writ petitioner is entitled to be promoted, as he became test qualified before that date. So, the learned Judge quashed Ext.P11 order. It was also declared that other consequential promotions granted to the 2nd respondent also fell to ground. This Writ Appeal is filed, challenging the above decision of the learned single Judge, by the management.
6. We heard learned senior counsel Sri.K.Ramakumar and also learned counsel Sri.George Jacob (Jose) for the appellants. We also heard Mr.M.V.Bose, learned counsel for the appellant in the connected Writ Appeal. We also had the benefit of hearing Mr.Mohan Jacob George, learned counsel for the writ petitioner.
7. The learned senior counsel for the appellants mainly raised the following three points. The first point is that no writ will lie against the Manager of an aided College to correct his actions in the matter of appointment of staff. Secondly, it was submitted that the writ petitioner has got an effective alternative remedy of moving the University Appellate Tribunal. Therefore, the learned single Judge should not have entertained the writ petition. Thirdly, it was contended that the learned single Judge found fault with Ext.R3(a), though that communication was not under WA.NOS.55 & 62/08 7 challenge in the writ petition.
8. In support of his first contention, the learned senior counsel for the appellants relied on the following decisions: (1) Joseph Mundassery v. Manager, St.Thomas College, Trichur [1953 K.L.T. 773], (2) Papali v. The University of Travancore [1956 K.L.T 563], (3) Parameswaran v. Principal, T.D. Medical College, Alleppy [1966 K.L.T. 825], (4) Vaish Degree College v. Lakshmi Narain [AIR 1976 SC 888] and (5) A.Yesuratnam v. Church of South India [1983 K.L.T. S.N. 46, Case No.73]. The learned senior counsel also relied on the decision of the Divisional Court in Cameron v. Network Rail [(2007)3 All ER 241] and the decision of the House of Lords in YL v. Birmingham City Council [(2007)3 All ER 957]. The learned counsel for the writ petitioner, on the other hand, relied on the decisions of the Apex Court in Manmohan Singh v. Commr., U.T., Chandigarh [AIR 1985 SC 364] and Vidya Dhar Pande v. Vidyut Grih Siksha Samiti [(1988)4 SCC 734].
9. The English decisions relied on by the learned senior counsel for the appellants have no direct application to the facts of this case. They deal with the amenability of private persons, who are discharging public functions, to the writ jurisdiction. The other decisions of our High Court WA.NOS.55 & 62/08 8 relied on by the learned senior counsel for the appellants are directly in point. If those decisions are not deemed to be overruled by subsequent decisions of the Apex Court, they will squarely cover the contention of the learned senior counsel that no writ will lie against a private aided College. The decision in Vaish Degree College v. Lakshmi Narain (AIR 1976 SC
888) was one arising under the Specific Relief Act, concerning the enforcement of a contract of personal service. The finding of the Apex Court in that case was that Vaish Degree College is not a statutory body and therefore, its employees cannot get a declaration that they are continuing in service, if they are dismissed in violation of the breach of contract by the said College. Therefore, that decision cannot be pressed into service to non- suit the writ petitioner in this case. But, the decision relied on by the writ petitioner in Manmohan Singh v. Commr., U.T., Chandigarh (AIR 1985 SC 364) will squarely cover the present case. In para 8, the Apex Court held as follows:
"The matter can be viewed from a slightly different angle as well. After the decision of the Constitution Bench of this Court in Ajay Hasia v. Khalid Mujib Sehravardi [(1981)2 SCR 79 : AIR 1981 SC 487] the aided school receiving 95% of expenses by way of grant from the public exchequer and whose employees have received the statutory protection under the 1969 Act and who is subject to the regulations made by the Education Department of the Union Territory of Chandigarh as WA.NOS.55 & 62/08 9 also the appointment of Headmaster to be valid must be approved by the Director of Public Instruction, would certainly be amenable to the writ jurisdiction of the High Court. The High Court unfortunately, did not even refer to the decision of the Constitution Bench in Ajay Hasia's case rendered on November 13, 1980 while disposing of the writ petition in 1983. In Ajay Hasia's case, Bhagwati, J., speaking for the Constitution Bench inter alia observed that 'the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character.' Add to this 'the existence of deep and pervasive State control which may afford an indication that the Corporation is a State agency or instrumentality.' Substituting the words 'public trust' in place of the 'corporation' the reasons will mutatis mutandis apply to the school. Therefore, also the High Court was in error in holding that the third respondent school was not amenable to the writ jurisdiction of the High Court." (Emphasis supplied) In Vidya Dhar Pande v. Vidyut Grih Siksha Samiti [(1988)4 SCC 734], the Apex Court held as follows:
"16. On a conspectus of these decisions the irresistible conclusion follows that the impugned order of termination of the appellant from the post of Principal of the Higher Secondary School in breach of the Regulation 79 framed under the said Act is illegal and as such the same is liable to be quashed as the Regulations have got statutory force. The appellant is liable to be reinstated in the service as Principal of the said College. We also hold that the Higher Secondary School in question though run by a private trust received 100 per cent grant from the government as is evident from the affidavit sworn on behalf of the appellant and as such it is amenable to the writ jurisdiction for violation of the provisions of the said regulations in passing the impugned order of termination of service of the appellant. We therefore, set aside the order passed by the High Court which, in our opinion, is unsustainable and direct the respondents to reinstate the appellant in the service of the said College. Considering the WA.NOS.55 & 62/08 10 facts and circumstances of the case we are of the opinion that the ends of justice would be met by directing the respondents to pay to the appellant a sum equal to 50 per cent of the salaries and allowances from the date of termination till his reinstatement in service as it appears that the appellant was not in employment during this period." (Emphasis supplied)
10. We also notice the subsequent decision of the Apex Court, holding that a writ will lie against private educational institutions receiving aid from the State, in Andi Mukta S.M.V.S.S.J.M.S., Trust v. V.R.Rudani [(1989)2 SCC 691]. In the said decision, it was held as follows:
"15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie.
These are two exceptions to mandamus. But once these are
absent and when the party has no other equally convenient
remedy, mandamus cannot be denied. It has to be
appreciated that the appellants -trust was managing the
affiliated college to which public money is paid as government aid. Public money paid as government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super-added protection b y University decisions creating a legal right-duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to WA.NOS.55 & 62/08 11 the aggrieved party. (Emphasis supplied) Xxxxx xxxxx xxxxx xxxxx
22. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor de Smith states: 'To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract'. We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into watertight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available 'to reach injustice wherever it is found'. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition."
11. In view of the above decisions of the Apex Court, the Kerala decisions relied on by the learned senior counsel for the appellants do not lay down the correct legal position. The 1st appellant College is an aided College receiving aid from the State. The entire salary of the teaching and non-teaching staff is paid by the State Government. The service conditions of the non-teaching staff of the College are governed by the provisions of the M.G.University Act and the statutes framed thereunder. It is not in dispute that the right of a qualified L.D.C to be promoted as U.D.C., according to seniority, is a statutory right flowing from Section 59 read with WA.NOS.55 & 62/08 12 Section 67 of the M.G. University Act and Statute 69 of Chapter 45 of the M.G. University Statutes, 1997. The appointments of the teachers and non-teaching staff and their promotions require the approval of the Director of Collegiate Education. So, if the Manager of a private college makes a promotion in violation of the statutes governing the same and in that process infringes the rights of an existing employee, a writ petition is maintainable against the Manager at the instance of the said aggrieved employee. Therefore, the contentions raised by the learned senior counsel regarding the maintainability of the writ petition is overruled.
12. The existence of an alternative remedy is not a bar in exercising the writ jurisdiction of this Court. It is only a rule of prudence to be followed by the High Court. If the writ petition had come up for admission before us, we may have turned away the writ petitioner to invoke the alternative remedy available to him. But, this is a case where the learned single Judge has already exercised his discretion to entertain the writ petition. In such cases, unless the exercise of the discretion is shown to be perverse, the appellate court is not justified in interfering with the same. The writ petition was filed as early as in 2003. It was finally heard on merits and disposed of after four years. Therefore, the contention raised now at the appellate stage, to turn away the writ petitioner to invoke the statutory WA.NOS.55 & 62/08 13 remedy, cannot be accepted. We are not inclined to hold that the exercise of the discretion by the learned single Judge to hear the writ petition on merits is perverse. Accordingly, the second contention of the learned senior counsel for the appellants is also repelled. The third contention raised based on certain observations concerning the validity of Ext.R3(a) is also of no consequence. Even assuming Ext.R3(a) is held to be valid, the same will not affect the final outcome of the case.
13. Now, we will deal with the merits of the case. In this case, going by the facts of the case, it is not in dispute that the writ petitioner was senior in the cadre of L.D.Clerk. He was promoted to that post on 1.2.2000 and he is an approved probationer in that post from 1.2.2001. The last day of the Account Test Examination taken by the writ petitioner was 5.1.2002. The results of the same were declared in June, 2002. So, he was entitled to be promoted as U.D. Clerk with effect from June, 2002. If the principle behind Rule 28(bbb) of Part II, K.S. & S.S.R is made applicable to the case, the writ petitioner is entitled to be promoted with effect from 6.1.2002. The 2nd respondent herein became test qualified in 1999, while he was a Lab Assistant. As evident from Ext.P4 dated 25.3.2003, he was promoted as L.D.Clerk in the leave vacancy of Mr.M.A.Lazer, U.D.C from 7.8.2000 to 15.3.2001. Again, in the leave vacancy of Mr.E.K.Krishnan, U.D.C., he WA.NOS.55 & 62/08 14 was notionally promoted as L.D.Clerk with effect from 16.3.2001 to 15.6.2001. While so, the retirement vacancy of Mr.M.A.Lazer arose from 1.5.2001 and in that vacancy he was accommodated as L.D.C. The two leave vacancies and the third regular vacancy were vacancies in the post of U.D.Clerk, to which a Lab Assistant could not be promoted. Ext.R3(a) communication dated 25.7.2002, issued by the Director of Collegiate Education is relied on by the appellants to support their action. A translation of Ext.R3(a) reads as follows:
"No.F.2/8585/2001/DCE. Thiruvananthapuram,
25-7-2002.
Director of Collegiate Education
Principal,
M.A.College,
Kothamangalam.
Sir,
Sub: Private college - Establishment - N.T.S. - 15 non- teaching staff promotion - reg.
Ref: Your letter No.E.4/216/2001 dated 2.3.2001.
Your attention is invited to the above referred letter. You have submitted proposal for approving the promotion of Lab Attenders to the posts of U.D.Clerk, in the absence of qualified L.D.Clerks. By downgrading those posts, promotion as L.D.Clerk can be given. Orders may be issued in this manner for promoting T.E.Kuriakose in the post of Sri.K.I.Roy, who was appointed in the vacancy of K.M.Kuriakose, U.D.Clerk.
Orders can be issued like this in the vacancies of WA.NOS.55 & 62/08 15 M/s.P.P.David, M.A.Lazar and E.K.Krishnan and upgrading can be done when qualified hands are available. The proforma and order may be modified and submitted immediately.
Yours sincerely, Sd/ V.R.Ramachandran, Deputy Director.
For Director of Collegiate Education.
/With approval/ Superintendent." (Emphasis supplied) But, a close reading of Ext.R3(a) would show that the post filled up by downgrading the post of U.D.C and appointing a Lab Assistant, has to be filled up as soon as there is an eligible claimant for the same. In other words, such downgraded post cannot be upgraded to accommodate a Lab Assistant, who has been promoted without any vacancy of L.D.C., but by creating a vacancy by downgrading a U.D.C post. Only a person working in the regular post of L.D.C is eligible for promotion as U.D.C. It means, as soon as the existing L.D.C became qualified for promotion as U.D.C., the downgraded post should be upgraded and the said incumbent should be promoted. The Lab Assistant working as L.D.C in the U.D.C post has to be either reverted or regularly accommodated in the vacancy of L.D.C., which is vacated by the incumbent on getting promotion as U.D.C. The permissive sanction given for promotion of a WA.NOS.55 & 62/08 16 Lab Assistant as L.D.C., even in the absence of L.D.C vacancy as per Ext.R3(a), which is only an executive instruction, cannot override the statutory right of the writ petitioner to get promotion as U.D.C., which post would have remained vacant but for Ext.R3(a). The relevant statute governing promotion of non-teaching staff is Statute 69 of Chapter 45 of the M.G. University Statutes, 1997. It is extracted below for convenient reference:
"69. Filling up of vacancies: Subject to the rules in force in similar Government institutions regarding qualifications and method of appointment, the vacancies in the higher grade shall be filled up by promotion from the next lower categories, if qualified persons are available according to seniority in the case of non-selection posts, and according to merit and seniority in the case of selection posts, and if there are no candidates available for promotion to the higher grades, the posts shall be filled up by, direct recruitment by inviting applications and selection by the management in the manner laid down in this Chapter."
So, the post of U.D.C., which is a non-selection post, can be filled up only by an L.D.C or by direct recruitment and not by a Lab Assistant. So, the promotion granted to Mr.Ciju John by downgrading the post of U.D.C., on the strength of Ext.R3(a) can only be an ad hoc arrangement. Such a person cannot be further promoted as U.D.C. In this view of the matter, we hold WA.NOS.55 & 62/08 17 that there is nothing illegal with the directions issued by the learned single Judge in the judgment under appeal. The learned Judge has only directed to promote the writ petitioner with effect from 11.12.2003, the date on which the post was decided to be upgraded. So, on merits also, the appellants have no case.
14. Though, not specifically raised before the learned single Judge, during arguments it was pointed out that the principles applicable under Rule 28(bbb) of the general rules of K.S. & S.S.R are applicable to the promotion of non-teaching staff in private colleges. If the said principles are applicable, the writ petitioner is deemed to be qualified on the last day of the test he successfully cleared, as admittedly the posts of U.D.Clerk were remaining unfilled for want of qualified hands at that time. Since this point was not raised or considered by the learned single Judge, we are not expressing any final opinion on it.
Accordingly, the Writ Appeal is dismissed.
WA.NOS.55 & 62/08 18 W.A.No.62/2008:
15. In view of the dismissal of W.A.No.55/2008, this Writ Appeal is also dismissed.
K.BALAKRISHNAN NAIR, JUDGE.
P.N.RAVINDRAN, JUDGE.
Nm/