Kerala High Court
WP(C)/31250/2010 of DR.ANITHA S.NAIR Vs STATE OF KERALA on 31 December 2012
COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934 WP(C).No. 31250 of 2010 (E) --------------------------- PETITIONER(S): ---------------------------- DR.ANITHA.S.NAIR, W/O.DR.S.RAJAGOPALAN NAIR, AGED 51 YEARS,
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934WP(C).No. 31250 of 2010 (E) --------------------------- PETITIONER(S):
----------------------------
DR.ANITHA.S.NAIR, W/O.DR.S.RAJAGOPALAN NAIR, AGED 51 YEARS, PROFESSOR,DEPARTMENT OF PHARMACY, ATHURASHRAMAM NSS HOMEO COLLEGE, KOTTAYAM, RESIDING AT INDEEVARAM, S.PURAM P.O., KOTTAYAM,PIN-686 532.
BY SRI.M.R.RAJENDRAN NAIR, SENIOR ADVOCATE
ADVS. SRI.SURAJ.S
SRI.P.A.KUMARAN
SMT.VINEETHA B. SRI.NIRMAL V NAIR SRI.M.R.HARIRAJ
RESPONDENT(S):
-----------------------------
1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-695 001. SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 001. REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686 001.
3. ATHURASRAMAM NSS HOMOEO COLLEGE, KOTTAYAM, REPRESENTED BY ITS MANAGER, ADMINISTRATIVE OFFICE, NSS HEAD OFFICE, PERNUNNAI P.O., CHANGANASSERY-686 101. KOTTAYAM, REPRESENTED BY ITS MANAGER, ADMINISTRATIVE OFFICE, NSS HEAD OFFICE, PERNUNNAI P.O., CHANGANASSERY-686 101.
4. PRINCIPAL AND CONTROLLING OFFICER, GOVERNMENT HOMOEOPATIC MEDICAL COLLEGE, THIRUVANANTHAPURAM-695 001. GOVERNMENT HOMOEOPATIC MEDICAL COLLEGE, THIRUVANANTHAPURAM-695 001.
R1 & R4 BY GOVERNMENT PLEADER SRI.T.R.RAJESH R2 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G. UNIVERSITY SRI.VIVEK VARGHESE P.J., SC, M.G. UNIVERSITY SRI. T.A. SHAJI, SC, M.G.UNIVERSITY R3 BY ADV. SRI.P.GOPAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
WP(C)NO.31250/2010
APPENDIX
PETITIONER'S EXHIBITS:
P1COPY OF THE JUDGMENT DATED 23/7/2007 IN W.A.NO.1110/2004
P2COPY OF THE JUDGMENT DATED 8/2/2010 IN SLP (C)15013/2008 OF THE HONOURABLE COURTHONOURABLE COURT
P3COPY OF THE GO(MS)366/2010/H&FWD DATED 18/6/2010 ISSUED BY THE FIRST RESPONDENTRESPONDENT
P4COPY OF THE ORDER NO.E/3539/10 DATED 6/7/2010
P5COPY OF THE UO NO.4406/BUII/2010/ACAD DATED 4/9/2010
P6COPY OF THE G.O.(RT)NO.1466/2010/H&FWD DATED 5/4/2010 ISSUEDFOR THE 1ST RESPONDENT.1ST RESPONDENT.
P7COPY OF THE REPRESENTATION DATED 7/02/2011 MADE BY THE PETITIONER.
P8COPY OF THE ORDER E/856/2011 DATED 11/2/2011
P9COPY OF THE LETTER NO.HC/370/10-11 DATED 17/2/2011
P10COPY OF THE ORDER NO.1832/C1/2011/GHMCT DATED 9/3/2011
P11COPY OF THE ORDER NO.1832/CI/11/CIHMCT DATED 4/4/2011 ALONG WITH THE FORM TR 51 WITH RESPECT TO THE PETITIONER.FORM TR 51 WITH RESPECT TO THE PETITIONER.
RESPONDENT'S EXHIBITS:
R3(A)COPY OF THE ORDER OF THE GOVERNMENT DATED 01/03/2011
R4(A)COPY OF THE SPECIAL RULE FOR GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE SERVICE RULES, 2001COLLEGE SERVICE RULES, 2001
/TRUE COPY/
P.S.TO.JUDGE
A.M.SHAFFIQUE, J.
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--------------------------------------------------- Dated this the 31[st] day of December, 2012
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J U D G M E N T
The petitioner commenced her service as a Tutor in the3[rd] respondent college on 1.9.1983 and she was promoted asLecturer on 01.9.1986. Since the post of Reader which is thenext promotion post was not sanctioned, original petition wasfiled as O.P. No. 21615/2001 which was allowed by the judgmentdated 03.3.2004 directing sanction of the post of Readerfrom 1995 and to consider sanctioning the post of Professorand further to grant promotion to the petitioner.
2. The matter was taken in appeal by the Government asWrit Appeal No. 1110/2004. Ext.P1 is the judgment in which itwas decided that the State Government shall consider thedirections issued by the Court in O.P. No. 21615/2001 asexpeditiously as possible and within four months from the dateof receipt of a copy of the judgment and that any order made bythe Government shall be effective from 23.7.2007.
3. Though Special Leave Petition was filed against the saidjudgment, the same came to be dismissed and by Ext.P3 order, the Government sanctioned one post of Reader and one post ofProfessor in the Department of Pharmacy in the 3[rd] respondentCollege with effect from 23.7.2007 in terms of Ext. P1judgment.
4. Later by Ext.P4 dated 06.7.2010, the petitioner waspromoted as Professor in the Department of Pharmacy in the 3[rd]respondent College, subject to the provisions of MahatmaGandhi University Act, 1985 and the Statute, Ordinances andRegulations made thereunder and the University approvedthe appointment of the petitioner as Professor as per Ext.P5order dated 04.9.2010.
5. The complaint of the petitioner is that despite theapproval granted by the University, the appointment of thepetitioner has not been approved by the Government and thesalary of the petitioner is not being disbursed.
6. The 3[rd] respondent had filed a counter affidavit, interalia contending that the appointment of the petitioner asProfessor was in accordance with the provisions of the MahatmaGandhi University Act, Statutes, Regulations and Ordinancesframed thereunder. According to the 3[rd] respondent in exercise of power under S.100 of the Mahatma Gandhi University Act,the Government has framed Mahatma Gandhi UniversityStatutes, 1997 and as per Statute 69, the vacancies in thehigher grade shall be filled up by promotion from the nextlower category, if qualified persons are available, according toseniority in the case of selection posts and subject to the rulesframed in similar Government institutions regardingqualifications and method of appointment.
7. The 4[h] respondent has filed a counter affidavit statingthat as per the Special Rules produced as Ext.R4(a) promotionto the post of Professor and Reader are only to be given fromthe feeder categories such as Readers and Lecturersrespectively. According to them, Ext.P4 promotion orderclearly shows that the petitioner was promoted as Professorfrom the post of Lecturer and therefore since the same is inviolation of the Special Rules, Ext.P4 order amounts to ananomaly which requires to be rectified by the 3[rd] respondent.
8. Heard learned counsel appearing for the petitioner, thelearned Government Pleader and learned counsel appearingfor the 3[rd] respondent.
9. It is not in dispute that the appointment of thepetitioner to the post of Professor has been approved by theUniversity. Ext.P5 is the said order passed by the University.Once University approves the appointment, the Government isunder obligation to pay or disburse the salary in terms withthe prescribed procedure, since the 3[rd] respondent is an aidedcollege. This obligation of the Government is not compliedwith, as matters stand now, on the technical reason that asper the Special Rules governing the promotion to the post ofProfessor, the feeder category is Reader and that since thepetitioner was selected from the post of Lecturer directly asProfessor, there is anomaly in the appointment. This, I do notthink is the correct approach to be made in the matter. First ofall, the University had framed the Rules in relation to allaided colleges coming under the purview of the University andhad already approved the appointment of the petitioner asProfessor. Secondly, even as per the Rules, especiallyStatute 69, vacancy in the higher grade shall be filled up bypromotion from the next lower categories which will alsoinclude Lecturer as well. There is no dispute about the qualification of the petitioner even as per the Special Rules.
Under these circumstances, I do not find any reason for theGovernment not to approve the appointment of the petitioner asProfessor in the 3[rd] respondent College.
10. In that view of the matter, the writ petition is only to be allowed. There shall be a direction to respondents 1 and 4 toapprove the promotion of the petitioner as Professor in the 3[rd]respondent college with effect from 23.7.2007 and disburse thesalary due after deducting the amount already paid with effectfrom the said date.
The writ petition is allowed as above.
A.M.SHAFFIQUE, JUDGE.
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