Kerala High Court
Dr.K.Prabhakaran Nair vs The Principal Secretary To The ... on 10 February, 2021
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942
WP(C).No.1401 OF 2021(A)
PETITIONER/S:
DR.K.PRABHAKARAN NAIR
AGED 67 YEARS
S/O.G.KUMARAPILLAI, PRINCIPAL, KSRTC SREE CHITRA
THIRUNAL COLLEGE OF ENGINEERING, PAPPANAMCODE P.O.,
THIRUVANANTHAPURAM 695 018, NOW RESIDING AT FLAT
NO.9B, CORDIAL PRABHA APARTMENTS, MARAPPALAM ROAD,
PATTOM, THIRUVANANTHAPURAM 695 004
BY ADVS.
SRI.P.B.SAHASRANAMAN
SRI.T.S.HARIKUMAR
SMT.G.N.DEEPA
RESPONDENT/S:
1 THE PRINCIPAL SECRETARY TO THE GOVERNMENT
DEPARTMENT OF TRANSPORT, SECRETARIAT,
THIRUVANANTHAPURAM 695 001
2 THE BOARD OF GOVERNORS OF KSRTC SREE CHITRA THIRUNAL
COLLEGE OF ENGINEERING
PAPPANAMCODE C.O., THIRUVANANTHAPURAM 695 018
REP.BY ITS CHAIRMAN
3 NEMOM SASIDHARAN
AGE AND FATHER'S NAME, JANAKEEYA AZHIMATHI VIRUDHA
SAMITHY, NEMOM BRANCH, NEMOM P.O., THIRUVANANTHAPURAM
695 020
4 DR. JAYASUDHA
AGED 47 YEARS
W/O.C.P.JESUTHAN DEAN (ACADEMIC) PROFESSOR, COMPUTER
SCIENCE AND ENGINEERING, KSRTC SREE CHITRA THIRUNAL
COLLEGE OF ENGINEERING, PAPPANKCODE P.O.,
THIRUVANANTHAPURAM 695 018
OTHER PRESENT:
GP SRI B HARISH KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-02-
2021, THE COURT ON 10-02-2021 DELIVERED THE FOLLOWING:
WP(C).No.1401 OF 2021(A)
2
JUDGMENT
Dated this the 10th day of February 2021 Order dated 16.1.2021, Ext.P9 is under challenge, whereby, the petitioner was directed to hand over the charge of the Principal of Sree Chitra Thirunal College of Engineering, Thiruvananthapuram. The grievance of the petitioner as revealed from the pleadings is that the afore-mentioned College, originally aided, managed and controlled by the Kerala State Road Transport Corporation (KSRTC) was handed over to the Society by the name KSRTC Sree Chitra Thirunal College of Engineering (Thiruvananthapuram) Society, registered under the Tranvancore-Cochin Leterary, Scientific and Charitable Societies Act, 1955. The petitioner is a Ph.D holder in Hydrodynamic bearings from Indian Institute of Technology, Roorkee and was a Professor in the Department of Mechanical Engineering, National Institute of Technology, Calicut. He was awarded with Gold medal for outstanding research work from American Biographical Institute, USA and also received Kholsla Research Award for the best technical paper published in the year 1990. Served as the officiating Director of NITC and WP(C).No.1401 OF 2021(A) 3 guided seventeen (17) students for their Ph.D, has 83 publications in his credit, member of (1) Fellow of Institution of Engineers (2) Computer Society of India and Life membership in Indian Society for Technical Education.
2. On 2.2.2018, the Principal in charge of the aforementioned college issued a notification by inviting retired principals/professors for appointment to the post of Principal on 'Contract Basis' with consolidated monthly salary of Rs.75,000/- fixing the qualification and age as per AICTE norms. In pursuance to the aforementioned notification an application was submitted vide Ext.P4. Vide communication dated 22.5.2018, Ext.P5 interview for the aforementioned post was intimated to be held on 25.5.2018. Vide order dated 4.6.2018, Ext.P6 appointment order on 'Contract Basis' was issued in favour of the petitioner.
3. Sri. T.S.Harikumar, learned Counsel appearing on behalf of the petitioner submitted that as per the AICTE norms, the normal retirement age of the Principal is 65 years, which can be extended up to 70 years. Board of Governors of the society, in the year 2017, who administer the College formulated their own service rules by regulating the service conditions of WP(C).No.1401 OF 2021(A) 4 teaching, technical and non-teaching staff. The method of appointment of the Principal of the College was by way of open selection by 'Contract Basis' from retired hands/deputation basis for Three Years(3) as reflected from the service rules dated 24.3.2017, therefore, the appointment of the petitioner even if not reflected in Ext.P6 appointment order, was for a period of three years.
4. To the utter surprise, an order dated 16.1.2021 was served on the petitioner whereby he was relieved from the post of Principal of the College.
5. The aforementioned order is in violation of AICTE norms, service rules of the college much less against the principles of natural justice. The reasoning stated in the impugned order that the rules are not statutory is absolutely absurd and incorrect. The appointment order did not contain any condition entering into an agreement of contract. As per the impugned order Ext.P9, the petitioner was directed to hand over charge of the Principal to Dr.Jayasudha J.S.Professor, Computer Science and Engineering Department, Dean (Academic) of the College. This Court vide order dated 19.1.2021, while admitting the matter, ordered for stay of the WP(C).No.1401 OF 2021(A) 5 termination. The petitioner came to know that the aforementioned action was initiated on the basis of complaint Ext.P7, and had submitted Ext.P8 explanation before issuance of Ext.P9 impugned order without affording an opportunity of hearing.
6. Per Contra, Sri.Harishkumar, learned Special Government Pleader supported the impugned order on the premise that the appointment of the earlier incumbent Sri.Anil Kumar S.H. was made on account of initiation of Department enquiry against Dr.Jayasudha J.S. and the appointment to the post of Principal was only till a regular hand was posted. The appointment is only contractual and cannot exceed for a period of one year. Ext.P1 has no force nor application, in fact Ext.P6 order reflecting the appointment refers to an order dated 12.4.2017, whereby in similar circumstances, Sri.Anil Kumar was appointed as Professor till the posting of regular hand. The aforementioned order has been handed over during the course of hearing. Order Ext.P6 reveals that Sri.Anil Kumar, Professor, Department of Mechanical Engineering was given full additional charge of Principal till a regular hand was posted. The petitioner was appointed as Principal on 'Contract Basis' WP(C).No.1401 OF 2021(A) 6 with the approval of the Board of Governors. The Board of Governors has not given approval as evident from the contents of the impugned order. No effort was made expressing any intention to enter into any contract, though petitioner rendering one year of service attaining the age of 68 years and the issue with regard to continuation after 68 years was never brought before the Board of Governors. The contract appointment can be extended one year each up to three years as per the Special Rules in view of the fact that the person is otherwise eligible to continue in the post.
7. I have heard learned Counsel for the parties and appraised the paper books.
8. Order dated 12.4.2017, reflected in Ext.P6 appointing the petitioner as Principal reads thus:
"As per the Government Order read above, Dr.Jayasudha J.S. Was put in full additional charge of the post of Principal, Sree Chitra Thirunal College of Engineering, Pappaamcode, Thiruvananthapuram, while she was serving as Professor, (Non-cadre), Department of Computer Science & Engineering in the College. Now as per the letter read above the Vigilance Department has suggested for Departmental inquiry against Dr.Jayasudha J.S.
2. In the circumstances Government hereby relieve Dr.Jayasudha J.S., Professor (Cadre) from the full WP(C).No.1401 OF 2021(A) 7 additional charge of the post of Principal, Sree Chitra Thirunal College of Engineering Pappanamcode and put Dr.Anilkkumar S.H., Professor (non cadre), Pappanamcode and put Dr.Anilkumar S.H., Professor (Non cadre) Mechanical Engineering Department, in full additional charge of Principal, Sree Chitra Thirunal College of Engineering, till a regular hand is posted."
9. Similarly notification Ext.P3, dated 24.2017 inviting application for appointment reveals that the appointment was on 'Contract Basis' on a monthly salary of Rs.75,000/-, which reads thus:
NOTIFICATION Applications are invited for the appointment to the post of Principal on contract basis from retired Principals/Professors from Government Engineering colleges for contract appointment with consolidated monthly salary of Rs.75,000/- (likely to be revised) Qualification and Age: As per AICTE norms Applications may be forwarded to the undersigned along with resume and copies of certificates on or before 21.2.2018, 4.00 pm.
10. On a cumulative reading of Ext.P3 and Ext.P6, it is evident that no such tenure was provided for appointment of Principal. Service on contractual basis cannot be equated with regular appointment whereby the selections/appointments are made by inviting applications on the request of concerned WP(C).No.1401 OF 2021(A) 8 colleges/institutions or Universities. Notifications envisaged appointment on 'Contract Basis' after retirement on a consolidated salary. The colleges cannot remain without Principal for an infinite period, till the regular incumbent is appointed. It is also settled law that the service of the contract employees cannot be terminated or replaced by another employee except by a regular employee. The impugned order indicates the handing over of the charge to Dr.Jayasudha, who was a person facing vigilance enquiry. There cannot be lien on such posts. Having had full knowledge of the appointment, the petitioner cannot complain of violation of natural justice as the situation was in knowledge and well reflected in Ext.P8 reply submitted to the 1st respondent. No interference is warranted under Article 226 of the Constitution of India. The writ petition is dismissed.
Sd/ AMIT RAWAL JUDGE Jm/ WP(C).No.1401 OF 2021(A) 9 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE SERVICE RULES OF SREE CHITRA THIRUNAL COLLEGE OF ENGINEERING NO.302/A2/2011/SCTCE, TVM, DATED 24TH MARCH, 2017.
EXHIBIT P2 THE LATEST NOTIFICATION ISSUED BY AICTE ON
1.3.2019
EXHIBIT P3 THE TRUE PHOTOSTAT COPY OF THE
NOTIFICATION ISSUED ON 2.2.2018
EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE APPLICATION
SUBMITTED BY THE PETITIONER ALONG WITH HIS BIO-DATA EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE INVITATION FOR INTERVIEW ISSUED ON 22.5.2018 EXHIBIT P6 TRUE PHOTOSTAT COPY OF THE ORDER OF APPOINTMENT ISSUED BY THE 1ST RESPONDENT DATED 4.6.2018 EXHIBIT P7 TRUE PHOTOSTAT COPY OF THE COMPLAINT OF THE 3RD RESPONDENT DATED 24.11.2020 EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO THE RESPONDENT DATED 4.1.2021 EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 12.1.2021