Jagathy Raj V.P. vs Rajitha Kumar. S on 7 February, 2022


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Supreme Court of India

Jagathy Raj V.P. vs Rajitha Kumar. S on 7 February, 2022

Author: Ajay Rastogi

Bench: Ajay Rastogi, Abhay S. Oka

                                                                 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)



                                                  JUDGMENT

Rastogi, J.

1. Leave granted.

2. The instant appeal has been preferred assailing the judgment

dated 8th April 2021 passed by the Division Bench of the High Court

of Kerala at Ernakulam setting aside the judgment of the learned

Single Judge dated 1st 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

no. 1 on 1st 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

nominated by order dated 15th July, 2015 as HOD/Director of the

School of Management Studies. He was relieved from the post of

Director on attaining the age of superannuation with effect from 6 th

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 th 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

Director/HOD by an Order dated 23 rd November 2017 for a period

of three years with effect from 7th 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

the same to the Registrar of the University vide letter dated 26 th

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.

6. The Syndicate of the University in its meeting held on 20 th

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

its meeting held on 20th November, 2020, the appellant was

nominated as HOD for a period of three years by Order dated 27 th

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 th

December, 2020 of the High Court, the University was directed to

revisit their rival claims that were placed before the Syndicate in its

meeting held on 21st 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

advanced by respondent no.1 under order dated 1 st 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.

10. The judgment of the learned Single Judge dated 1 st 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

nominating the appellant as HOD by Order dated 27 th 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

Director/HOD, by communication dated 18th July 2017 and taking

note of his unwillingness, the Professor in queue, Dr. Mavoothu D.

was nominated as Director/HOD with effect from 7 th 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

School of Management Studies by his communication dated 26 th

June, 2020.

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19. Statute 18 which is relevant for the purpose is reproduced as

under:­

“18. Head of the Department­ The Syndicate shall nominate a
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

21st December, 2020 pursuant to interim order of the High Court

dated 12th 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

15
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

Division Bench of the High Court impugned dated 8 th 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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