9 Feb 2022 1:47 PM GMT
The Supreme Court has observed that under Statute 18 framed by the Kerala Government which envisages the appointment of Director/HOD of Cochin University a teacher who was being considered for HOD on a rational basis would not be prohibited from being considered for appointment when second rotational term becomes due if he/she during the first term makes a request of being relieved from...
The Supreme Court has observed that under Statute 18 framed by the Kerala Government which envisages the appointment of Director/HOD of Cochin University a teacher who was being considered for HOD on a rational basis would not be prohibited from being considered for appointment when second rotational term becomes due if he/she during the first term makes a request of being relieved from the responsibility for academic reason.
The bench of Justices Ajay Rastogi and AS Oka was considering a SLP assailing Kerala High Court's order dated April 8, 2021 by which the High Court had set aside Single Judge's judgment and directed the Cochin University of Science and Technology to nominate Dr. Rajitha Kumar S ("Respondent no. 1") as Head of the Department ("HOD")/Director of School of Management Studies of Cochin University.
While allowing the appeal in Dr. Jagathy Raj V.P. v. Dr. Rajitha Kumar S. & Ors. the bench said,
"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 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."
Dr. Jagathy Raj V.P ("appellant") who became Professor in April 2009 and Dr. Rajitha Kumar S who became Professor on 1st October, 2013 were members of the teaching faculty. The appellant on July 18, 2017 expressed his unwillingness to be nominated by rotation as HOD because of his preoccupation in teaching and research and thus the next eligible Professor Dr. Mavoothu D. was nominated as Director/HOD by an Order dated 23rd November 2017 for a period of three years with effect from 7th December, 2017.
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 the same to the Registrar of the University vide letter dated 26th June, 2020. At the same time, respondent no. 1 who was next to the appellant in seniority equally protested the claim of the appellant by a letter dated 3rd November, 2020.
The University's Syndicate after taking note of Statute 18 in its meeting held on November 20, 2020 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 HOD. Thus the University while noticing the number of precedents where seniority was given preference and senior professors were nominated as HOD after they relinquishing their actual chance opined that it was the appellant who had to be considered.
Aggrieved, the respondent challenged appellant's appointment by approaching the High Court under Article 226 of the Constitution of India. The Single Judge on March 1, 2021 directed the Cochin University of Science and Technology to nominate Dr. Jagathy Raj ("Respondent no. 1") as Head of the Department ("HOD")/Director of School of Management Studies of Cochin University.
The Division Bench however 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.
Aggrieved, the appellant approached the Top Court.
Submission Of Counsels
Appearing for the appellant, Senior Advocate PS Patwalia submitted that 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 had always to be given its due precedence. It was also his contention that the teacher who was qualified and senior in the teaching faculty was to be considered for nomination as HOD, but if for any personal reasons, or for academic teaching and research work which was 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. Reliance was placed by Senior Counsel on N. Suresh Nathan and Another Vs. Union of India and Others 1992 Supp.(1) SCC 584.
Appearing for the respondent, Advocate Bina Madhavan submitted that once the right had 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 had lost 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.
Supreme Court's Analysis
The bench in the judgment authored by Justice Ajay Rastogi while allowing the appeal and setting aside the High Court order said,
"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."
The bench to set aside the impugned order also relied on N. Suresh Nathan and Another Vs. Union of India and Others 1992 Supp.(1) SCC 584 wherein it was 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 under Article 226 of the Constitution of India.
Case Title: Dr. Jagathy Raj V.P. v. Dr. Rajitha Kumar S. & Ors.| SLP(Civil) No(s). 6392 of 2021
Coram: Justices Ajay Rastogi and AS Oka
Citation : 2022 LiveLaw (SC) 145
Click here to read/download the judgment