Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). 1072 OF 2022
(Arising out of SLP(Civil) No(s). 6392 of 2021)
DR. JAGATHY RAJ V.P. ….APPELLANT(S)
VERSUS
DR. RAJITHA KUMAR S. & ORS. ….RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. Leave granted.
2. The instant appeal has been preferred assailing the judgment
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dated 8 April 2021 passed by the Division Bench of the High Court
of Kerala at Ernakulam setting aside the judgment of the learned
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Single Judge dated 1 March, 2021 and directing the Cochin
University of Science and Technology to nominate respondent no. 1
Signature Not Verified
as Head of the Department (in short “HOD”)/Director of School of
Digitally signed by
Anita Malhotra
Date: 2022.02.07
17:45:18 IST
Reason:
Management Studies of Cochin University.
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3. The relevant facts in brief culled out from the record are that
both the appellant and respondent no. 1 are members of the
teaching faculty and the appellant is senior to respondent no. 1 as
the appellant became Professor in April 2009, whereas respondent
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no. 1 on 1 October, 2013. Even otherwise, the seniority of the
appellant qua respondent no. 1 is not in dispute.
4. In terms of Section 39(1) of the University Act, the Government
of Kerala framed its Statute. That Statute 18 envisages the
appointment of a Director/HOD. For appointment of the
Director/HOD, the Syndicate shall nominate a teacher not below
the rank of an Associate Professor with Ph.D or an equivalent post,
as prescribed by UGC Regulations or Regulations based on seniority
on a rotational basis for a period of three years. One Dr. Moli P.
Koshy, the senior Professor in the School of Management was
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nominated by order dated 15 July, 2015 as HOD/Director of the
School of Management Studies. He was relieved from the post of
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Director on attaining the age of superannuation with effect from 6
December, 2017. The appellant, who was the next senior most
Professor in queue, was eligible to be nominated by rotation as
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HOD. However, vide communication dated 18 July 2017, the
appellant expressed his unwillingness because of his pre
occupation in teaching and research. Taking into consideration the
unwillingness expressed by the appellant at the given point of time,
the next eligible Professor Dr. Mavoothu D. was nominated as
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Director/HOD by an Order dated 23 November 2017 for a period
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of three years with effect from 7 December, 2017.
5. Before the term of Dr. Mavoothu D. of three years was going
to expire, the appellant showed his willingness at that stage to
consider him for appointment as Director/HOD and communicated
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the same to the Registrar of the University vide letter dated 26
June, 2020. At the same time, respondent no. 1 who was next to
the appellant in seniority equally protested the claim of the
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appellant by a letter dated 3 November, 2020.
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6. The Syndicate of the University in its meeting held on 20
November, 2020, after taking note of Statute 18 (Agenda Item No.
681.18) observed that the relinquishment made by the appellant
was specific to the nomination after the term of Dr. Moly P. Koshy
and that was the reason Dr. Mavoothu D. was nominated for the
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post of HOD/Director. Taking note of Statute 18, the rotation
begins according to seniority and not at the point at which earlier
nomination was made. Hence, it is the appellant who has to be
considered first and also noticed the number of precedents in the
University where seniority was given preference and senior
professors were nominated as HOD after they relinquished their
actual chance. The reason behind is that the University gives
paramount importance to academic and research work and doesn’t
want to disrupt the academic and research work of a senior
Professor when his turn arises but intend to nominate the teacher
after those activities are over, and accordingly recommended the
name of the appellant to be appointed as HOD.
7. Pursuant to the recommendations made by the Syndicate in
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its meeting held on 20 November, 2020, the appellant was
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nominated as HOD for a period of three years by Order dated 27
November, 2020 and that became the subject matter of challenge by
filing of a writ petition under Article 226 of the Constitution before
the learned Single Judge of the High Court at the instance of
respondent no. 1.
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8. It reveals from the record that by an interim order dated 18
December, 2020 of the High Court, the University was directed to
revisit their rival claims that were placed before the Syndicate in its
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meeting held on 21 December, 2020 (Agenda item no.682.20) and
the earlier recommendation was strongly reiterated.
9. The learned Single Judge thereafter taking note of the
submissions and Statute 18 in particular, repelled the contentions
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advanced by respondent no.1 under order dated 1 March, 2021
and observed that the senior most person has to be considered for
appointment as HOD/Director of the Department on rotational
basis for a period of three years and the appellant who was
admittedly senior has relinquished his claim on rotation of three
years in the year 2017 and his unwillingness was for the period
when the name of the appellant came for consideration in 2017 and
in his place Dr. Mavoothu D. was appointed. But the time when a
fresh consideration has taken place, the appellant could not be
denied his right of fair consideration as the relinquishment cannot
be for an infinite period and further observed that no error was
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committed by the Syndicate in nominating the appellant for the
post of Director/HOD.
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10. The judgment of the learned Single Judge dated 1 March
2021 was challenged in writ appeal at the instance of respondent
no. 1 and the Division Bench of the High Court under the impugned
judgment overturned the finding returned by the learned Single
Judge on the premise that Statute 18 conspicuously takes note of
seniority on a rotational basis for a period of three years and once
the relinquishment was made by the appellant in terms of the
Statute 18, the appellant has foregone his right of consideration for
all times to come and respondent no. 1, who was the next in queue,
was to be considered for nomination as the HOD/Director of School
of Management Studies of Cochin University, taking note of the
admitted seniority and rotational turn, which is a subject matter of
challenge in appeal before us.
11. Mr. P.S. Patwalia, learned senior counsel for the appellant,
submits that the nominations were made in terms of Statute 18 by
the Syndicate according to seniority on rotational basis for a period
of three years and seniority has always to be given its due
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precedence and the teacher who is qualified and senior in the
teaching faculty is to be considered for nomination as HOD, but if
for any personal reasons, or for academic teaching and research
work which is undertaken by him/her for relinquishment, foregoes
claim at the given point of time, that cannot be considered to be the
relinquishment of right in perpetuity, the way it has been
interpreted by the Division Bench in the impugned judgment.
12. Learned counsel further submits that there are precedents
where the University has considered the claim based on seniority of
such of the teachers who had once relinquished their claim but
because of their seniority, due weightage was attached to them and
they were considered for nomination as HOD in the second rotation.
To be more specific, two incidents have been referred to of Dr. M.K.
Jayaraj and Mrs. Mariamma Chacko, who had first expressed
unwillingness to take over as HOD but later on, both were
nominated as HOD in the second rotational term. In the given
circumstances, no error has been committed by the Syndicate in
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nominating the appellant as HOD by Order dated 27 November.
2020.
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13. Learned counsel further submits that under Statute 18, there
is no express bar that teacher who has once shown his
unwillingness for being considered for appointment/nomination as
HOD, would be eliminated in perpetuity and, in the given
circumstances, constructive interpretation which has been made by
the Syndicate of Statute 18 in giving due weightage to seniority
keeping in view paramount importance to academic and research
work and not to disrupt the academic and research work of a senior
Professor when his/her turn arises and if the unwillingness is once
shown at the given point of time, that will not take away the right of
fair consideration in the next rotation and still if two interpretations
of Statute 18 are possible and University has interpreted Statute 18
in a way which subserve the purpose and has been followed in the
past, of which a reference has been made, there appears no reason
to deviate from the practice followed by the University for a number
of years and placed reliance on the judgment of this Court in
N.
Suresh Nathan and Another Vs. Union of India and Others
1992 Supp.(1) SCC 584.
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14. Per contra, Ms. Bina Madhavan, learned counsel for
respondent no. 1, submits that once the right has been
relinquished by the appellant in the year 2017 and teacher in
queue, Dr. Mavoothu D. was nominated as Director/HOD on
rotational basis for a period of three years, the appellant loses right
of consideration for becoming HOD for all times to come and the
next in queue is to be considered to avail the opportunity to become
HOD and this is what the Division Bench has observed under the
impugned judgment and is being envisaged by Statute 18 and
needs no further indulgence of this Court.
15. Learned counsel further submits that if the appellant would
have joined in the year 2017 when he was indisputedly eligible for
becoming the HOD, the next incumbent to whom the charge was
handed over for becoming the HOD Dr. Mavoothu D., by this time,
would have retired and respondent no. 1 would have been
considered eligible for nomination as HOD in the year 2020. But
because the appellant relinquished his claim at the given point of
time in 2017, it is respondent no. 1 whose right of fair consideration
has been jeopardized and since the retirement of the present
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appellant and respondent no. 1 are at the same point of time, she is
deprived from being considered for appointment as HOD for all
times to come and because of the unwillingness of the appellant at
one stage, no one has suffered a loss except respondent no. 1.
16. Learned counsel for the University has supported the
submissions made by the appellant and submits that Statute 18
has been considered in the right perspective keeping in view the
paramount importance to academic and research and the teachers
who are undergoing the academic and research work, the intention
is not to disrupt the same. At the same time, right of fair
consideration based on seniority in the next rotation whenever
comes during his/her term cannot be ignored and that being the
object of Statute 18 has been considered by the University and
precedents referred by the appellant have been consistently followed
and no deviation has ever been made. Statute 18 mandates for the
appointment to the post of Director as per seniority and the senior
most Professor has to be appointed for a period of three years and
claim of the appellant was considered after taking note of his
seniority and all other factors into consideration while nominating
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him as Director/HOD and further submits that the interference
made by the Division Bench in setting aside the recommendations
made by the University is not sustainable in law and deserves to be
interfered with by this Court.
17. We have heard learned counsel for the parties and with their
assistance perused the material available on record.
18. So far as the seniority of the appellant qua respondent no. 1 is
concerned, it is not in dispute. In the year 2017, the appellant was
a senior most Professor but because of undergoing research work at
that time, he had shown his unwillingness to become the
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Director/HOD, by communication dated 18 July 2017 and taking
note of his unwillingness, the Professor in queue, Dr. Mavoothu D.
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was nominated as Director/HOD with effect from 7 December,
2017 for a period of three years. Before the term of Dr. Mavoothu
D. was going to complete, the appellant has shown his willingness
at that time for being considered for appointment as a Director of
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School of Management Studies by his communication dated 26
June, 2020.
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19. Statute 18 which is relevant for the purpose is reproduced as
under:
" The Syndicate shall nominate a
18. Head of the Department
teacher not below the rank of an Associate Professor with Ph.D or
an equivalent post as prescribed by the UGC regulations or
regulations of any Apex Authority specified for the purpose as
Head of the Department according to seniority on a rotational basis
for a period of 3 years. It shall, however, be open to the teacher
who has been nominated as the Head of the Department to make a
request that he/ she shall be relieved of such a responsibility for
academic reason. In such a case the next eligible teacher will be
nominated as the Head of the Department. All the members of the
teaching staff shall work under the directions of the Head of the
Department. In the case of Departments which have no Professor
or Associate Professor or equivalent post prescribed by the UGC
Regulations or regulations issued by any other competent
authority, the Syndicate shall nominate an Assistant Professor or
equivalent post prescribed by the UGC Regulations or by the
regulations issued by any other competent authority specified for
the purpose according to seniority on a rotational basis as Head of
the Department in charge till another Professor assumes charge or
an Associate Professor is promoted under Career Advancement
Scheme of UGC/AICTE and the other teachers shall work under
the directions of the Head of the Department.”
20. The Syndicate of the University in its review meeting held on
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21 December, 2020 pursuant to interim order of the High Court
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dated 12 December, 2020 in Agenda Item 682.20 took the
following decision:
“It is true that Dr.Jagathy Raj V.P. was next in line to be
considered for the post of Director, School of Management Studies
after the tenure of Prof(Dr.) Moly P. Koshy. However, Dr.Jagathy
Raj, before the actual nomination was made as per letter dtd. 18.
7.2017 informed the University as follows:
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"It is learnt that I am next in line to be nominated as
the Director, School of Management Studies after the
tenure of present Director, Prof (Dr.) Moly P. Koshy.
Since I am interested in Teaching and Research only, I
request you not to consider me for the Directorship of
School of Management Studies".
Thus the relinquishment made by Dr.Jagathy Raj V.P. was
specific to the nomination after the term of Dr. Moly P. Koshy.
Hence Dr.Mavoothu D was nominated for the post of Director.
Before the term of Dr.Mavoothu expired both Dr.Rajitha Kumar S
as well as Dr.Jagathy Raj V.P. expressed willingness to be
nominated to the post of Director, SMS. While Dr.Jagathy Raj V.P.
was senior to Dr.Mavoothu, Dr.Rajitha Kumar is junior to both of
them. Going by the provisions of Statute 18, the rotation begins
according to seniority and not at the point at which earlier
nomination was made. Hence it is Dr.Jagathy Raj who has to be
considered first. Thus the claim of Dr.Rajitha Kumar that all
eligible candidates below the present incumbent has to be
exhausted before considering the senior doesn't merit any
consideration. There have been a number of precedents in the
University where seniority was given preference and senior
professors were nominated as the Head of the Department after
they relinquished their actual chance. This is because the
University gives paramount importance to academic and research
work and doesn't want to disrupt the academic and research work
of a senior Professor when his tum arises but want to nominate
him after those activities are over, that such a provision has been
introduced.
Moreover, any nomination to be made is the discretion of the
nominating authority and therefore there is nothing wrong in
nominating any senior as the Head of the Department. Also the
rights of Dr.Rajitha Kumar are not affected as he can function as
the Head of the Department after the tenure of Dr.Jagathy Raj.
Nothwithstanding the letter dtd. 18.7.2017 of Dr.Jagathy
Raj, the Syndicate can nominate him though it may not be perhaps
open to Dr.Jagathy Raj to enforce a claim for nomination as Head
of the Department against the University.
Considering all the aspects and reconsidering the matter as
directed by the Honourable High Court, the Syndicate
unanimously resolved to nominate Dr.Jagathy Raj as Director,
School of Management Studies.”
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21. It is not in dispute that earlier on two different occasions, the
Professors who had shown their unwillingness at one point of time
were considered by the University when the second rotational term
became due because of his/her seniority and eligibility to be
nominated for the post of Director/HOD and this fact has been
admitted by the University in its counter affidavit filed before the
High Court, the extract of which is reproduced hereunder:
6. The appellant herein in the writ petition has claimed that the
present appointment of Dr. Jagathy Raj is against all the rules and
practices in the University, as nobody can reclaim a position which
he himself has declined earlier is wrong and contrary to the
present practice and precedents in the University. There are many
precedents in the university which points out that the persons who
had declined the post of Directorship for a particular tenure were
later nominated to the post when the next tenure arose. One Mr.
Dr. M.K Jayaraj had expressed his inability to take over as the
head of the Department of Physics in the year 2016, consequently
Dr. M. Junaid Bushiri was nominated in his place and later when
the tenure of Dr. Junaid Bushiri was expiring on 31.10.2019, Dr.
MK Jayaraj had expressed his willingness to be nominated as Head
of the Physics Department 02.11.2019. True copies of the order
nominating Dr. Junaid Bushiri and Dr. MK Jayaraj dated
01.11.2016 and 31.10.2019 respectively. True copies of the order
dated 01.11.2016 and 31.10.2019 are produced herewith and
marked as Annexure R3(c )
.
7. One Mrs. Mariamma Chacko had expressed her unwillingness to
take over as the head of the Department of Ship Technology in the
year 2016, consequently Dr. C.G Nandakumar was nominated in
his place and later when the tenure of Dr.C.G Nandakumar came
to an end by the virtue of voluntary retirement on 30.04.2017, Dr.
Mariamma Chacko, next senior most eligible teacher for headship
expressed her willingness to take up the headship and thereby she
was nominated for a period of three years vide order dated
31.03.2017. True copies of the order nominating Dr. C.G
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Nandakumar and Dr. Mariamma Chacko dated 10.02.2016 and
31.03.2017 respectively are produced herewith and marked as
Annexure R3(d).
22. Statute 18 of the University authorizes the Syndicate to
nominate the teacher not below the rank of an Associate Professor
with Ph.D or an equivalent post as prescribed by the UGC
regulations for the purpose, as HOD according to seniority on a
rotational basis for a period of three years. However, it would be
open for the teacher who has been nominated as HOD to make a
request that he/she shall be relieved of such a responsibility for
academic reasons. What is being envisaged from Statute 18 is that
teachers who are eligible according to seniority are being considered
for HOD on a rotational basis for a period of three years, if shows
unwillingness or makes a request to be relieved from such a
responsibility for academic reason, can certainly be relieved for that
rotation but there is no prohibition which deprives the teacher from
being considered for appointment as HOD when the second
rotational term becomes due. That being the reason, the University
in two earlier precedents considered such teachers again who, at
the first instance, had shown their unwillingness to join and later
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became HOD, keeping in view the paramount consideration not to
disrupt the academic and research work of a senior Professor when
his turn arises and if he has shown unwillingness, his seniority has
to be given its predominance and opportunity is available to him to
serve when the next rotation becomes due and that is the reason
the appellant was also considered and recommended by the
Syndicate to be nominated as HOD/Director School of Management
Studies keeping in view the mandate of the Statute.
23. Although there is no prohibition under Statute 18, still if two
views are possible and the University has interpreted in the way
which serves the purpose keeping in view the paramount
consideration to the academic and research work and the seniority
of the teachers while considering for appointment as HOD/Director,
School of Management Studies which was judicially examined and
upheld by learned Single Judge of the High Court.
24. This Court in N. Suresh Nathan and Another(supra) has
held that past practice which is being followed for long time if not
contrary to law, be given its true precedence and ordinarily not to
be interfered by the Courts in exercise of power of judicial review
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under Article 226 of the Constitution of India. The extract of para 4
is reproduced as under:
“…………….. The real question, therefore, is whether the
construction made of this provision in the rules on which the past
practice extending over a long period is based is untenable to
require upsetting it. If the past practice is based on one of the
possible constructions which can be made of the rules then
upsetting the same now would not be appropriate. It is in this
perspective that the question raised has to be determined.”
25. In our considered view, the interference made by the Division
Bench of the High Court in interpreting Statute 18 of the University
is not sustainable in law and deserves to be set aside.
26. Consequently, the appeal is allowed. The judgment of the
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Division Bench of the High Court impugned dated 8 April, 2021 is
quashed and set aside. No order as to costs.
27. Pending application(s), if any, stand disposed of.
……………………….J.
(AJAY RASTOGI)
……………………….J.
(ABHAY S. OKA)
NEW DELHI
FEBRUARY 07, 2022
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