(2012) 258 KLR 985 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 20TH DAY OF JUNE 2012/30TH JYAISHTA 1934 WP(C).No. 9494 of 2012 (J) -------------------------- PETITIONER: ---------- DR.JYOTHI MARIAM JOHN, AGED 54 YEARS ASSOCIATE POROFESSOR AND HEAD OF DEPARTMENT DEPARTMENT OF CHEMINISTRY, UNION CHRISTIAN COLLEGE ALUVA-2 BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): -------------- 1. UNION CHRISTIAN COLLEGE, REP. BY ITS MANAGER, ALUVA 683 102. 2. THE PRINCIPAL, THE UNION CHRISTIAN COLLEGE, ALUVA 683102. 3. THE MAHATHMA GANDHI UNIVERSITY, ATHIRAMPUZHA, KOTTAYAM REPRESENTED BY ITS REGISTRAR 686 001. 4. DR. MARY KURIEN, ASSOCIATE PROFESSOR, UNION CHRISTIAN COLLEGE, ALUVA 682 102. ADDL.RESPONDENTS 5, 6 & 7 IMPLEADED ----------------------------------- ADDL.R5. DR.SHEELA KUMARI ISSC, ASSOCIATE PROFESSOR, DEPARTMENT OF CHEMISTRY, UNION CHRISTIAN COLLEGE, ALUVA 2. ADDL.R6. DR.BENNY CHERIAN A., ASSOCIATE PROFESSOR, DEPARTMENT OF CHEMISTRY, UNION CHRISTIAN COLLEGE, ALUVA-2. ADDL.R7. DR.PV.SREENIVASAN, ASSOCIATE PROFESSOR, DEPARTMENT OF CHEMISTRY, UNION CHRISTIAN COLLEGE, ALUVA-2. ADDL.R5,6 & 7 ARE IMPLEADED AS PER ORDER DATED 20.6.2012 IN IA.7608/2012 VK WP(C).No. 9494 of 2012 (J) -------------------------- R1 & 2 BY ADV.SRI.MILLU DANDAPANI R3 BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY R4 BY ADVS SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO ADDL.R5. 6 & 7 BY ADVS.SMT.K.MEERA SRI.BOBY MATHEW THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 9494 of 2012 (J) -------------------------- APPENDIX -------- PETITIONER'S EXHIBITS ---------------------
RESPONDENT'S EXHIBITS ----------------------
/ TRUE COPY / P.A. TO JUDGE VK "CR" C.N. RAMACHANDRAN NAIR, J. & C.K. ABDUL REHIM, J. ------------------------------------------------- W.P (c) No. 9494 OF 2012 ------------------------------------------------- DATED THIS THE 20th DAY OF JUNE, 2012 Head Note:- Mahatma Gandhi University Statutes, 1997 - 81 (b) (1) - Whether the senior-most person in the Department is entitled to be appointed as Head of the Department as a matter of right and even if appointed whether the Management has a right to change the person by another person junior to such person? Held:- The selection of Head of the Department by seniority is done as matter of course. But at the same time the Principal continuously monitors the performance of the Department Head and at any time if the Principal is satisfied that the Head of the Department is not capable of running Department efficiently on account of disharmony and non-cooperation for want of proper leadership of the Head of the Department and the infight among the teaching staff affects quality of performance of the Department it is for the Principal to enquire into the matter and suggest change of Head of the Department if that is the solution to the Governing body. It is for the Governing body to consider whether the reasons put forwarded by the Principal to change the Head of the Department are correct and if so, to forthwith implement the recommendation of the Principal for the benefit of the institution. So much so what we feel is that the tenure appointment only means that the seniormost person appointed should function as Head of the Department to the satisfaction of the Principal which means that the duties are performed strictly in terms of the provisions contained in Statute 81 (b) (1) stated above. Essentially the Head of the Department should provide leadership and support to the entire Department of teaching staff and others and there is nothing wrong in the Principal taking views of all members of the teaching staff while selecting the Head of the Department from among the seniormost eligible Associate Professors. The more the acceptability of the Head of the Department to all the members of the teaching staff the better will be the co- ordination and efficiency of the Department. J U D G M E N T Ramachandran Nair, J: Writ petition is filed challenging Ext.P4 order whereunder petitioner is removed from the post of Head of the Chemistry Department with immediate effect and by same order 4th respondent is given charge as the Head of the Department. We have heard counsel appearing for the petitioner, Management, Principal and the contesting parties including 3 Associate Professors who got impleaded as additional respondents and also the standing counsel for Mahatma Gandhi University to which the 1st respondent college is affiliated. 2. On retirement of the Head of the Department on 31-03-2011 the petitioner was appointed as Head of the Department of the Chemistry Department vide Ext.P1 order of appointment dated 30-03-2011. It is seen from Ext.P1 that the petitioner's appointment was for 3 years from 01-04-2011 or till her retirement whichever happens earlier. However, on being dissatisfied with the performance of the petitioner as Head of the Department in the course of nearly a year the Governing body of the 1st respondent college decided to substitute her with the 4th respondent, which is the decision communicated to the petitioner vide Ext.P4 dated 29-03-2012. Even though the petitioner had handed over charge to the 4th respondent on being replaced by her, without noticing the same this court granted an interim stay which is later vacated by the single Judge, against which writ appeal filed by the petitioner was closed by us today through separate judgment. 3. Petitioner's case is that she is victimised for no fault of hers by the Management with the help of few teachers in the Department who are enimical to her. However the case of the respondents is that the petitioner has never been able to co-ordinate the teaching staff of the Department and she has not been providing leadership to the Department leading to disharmony and consequent deterioration in the Department. Going through the counter affidavit it is seen that the matter was dragged by the petitioner to the Human Rights Commission and even to the Women's Commission which provoked the Management to change her. 4. Counsel for the petitioner contended that even though Head of the Department is not a promotion post and it does not carry any financial benefit, as as matter of practice, the senior most cadre Professor and in the absence of seniormost Associate professor gets appointed as Head of the Department and the petitioner being the senior most Associate Professor was rightly appointed for a tenure of 3 years vide Ext.P1. According to counsel there is no justifiable circumstance to replace the petitioner with 4th respondent which infact amounts to punishment. However, the case of the respondents is that the Management was compelled to replace the petitioner only because of her non- cooperative attitude and incapacity to co-ordinate staff members particularly teaching staff in the Department which has led to deterioration in the performance of the Chemistry Department. The legal question to be considered is whether the seniormost person in the Department is entitled to be appointed as Head of the Department as a matter of right and even if appointed whether the Management has a right to change the person by another person junior to such person. The Mahatma Gandhi University Statutes, 1997 which provides for appointment of Head of the Department are as follows: 81 (b) Duties and Responsibilities of I Grade Cadre Professor: (1) There shall be a Cadre Professor duly qualified as per regulations who shall be the head of the department Post-Graduate/undergraduate as the case may be. (2) He/She shall function as per the directives issued from time to time by the Principal consistent with the provisions of the Statutes/Ordinances/ Regulations. (3) It shall be his/her duty to ensure the efficient functioning of the department by assigning and supervising work for the teachers and non- teaching staff of the department. (4) It shall be the duty of the Head of the Department to send a daily report of the work adjustment done, giving suitable substitution to teachers who are on leave, to the Principal at the beginning of the morning session. (5) The Head of the Department shall maintain the work register and other relevant records concerning the department as per the assignment aforesaid and shall be accountable to the Principal. (6) It shall be the duty of the Head of the Department to recommend applications for leave submitted by the teaching and non-teaching staff of the department to the Principal forthwith. (7) It shall be the duty of the Head of the Department to ensure the conduct of terminal examinations, test papers/assignment as scheduled by the University/ Principal/Staff Council, and he shall be responsible for the maintenance of all relevant records. (8) There shall be an annual stock verification as per rules and it shall be conducted during the mid- summer vacation and appropriate instruction shall be issued by the Principal and necessary follow-up action shall be taken by the Head of the Department. (9) It shall be the duty of the Head of the Department to forward an objective assessment of the work and conduct of the staff of his department to the Principal by the last working day of the academic year. 5. We are told that there is no cadre Professor as of now in any private college and so much so, the provision contained in the Statute 81 (b) (1) should be taken as a seniormost Associate Professor of the Department concerned. Even though the Statute does not speak about the appointment of seniormost Professor of the Department as Head of the Department, what is obvious from the above provision is that there can only one cadre Professor and when he is made the Head of the Department, it goes without saying that the seniormost Professor in the Department should be the Head of the Department. Since cadre Professor is not available in a private college under the UGC scheme as of now necessarily the seniormost Associate Professor should be reckoned as cadre Professor in the place of Statute 81 (b) (1). The Management of the college in this case also has understood in that manner and that could be the reason why the petitioner the senior most was appointed as the Head of the Department vide Ext.P1. It is seen from Ext.P1 that the appointment is for a tenure of 3 years or until her retirement. Obviously during the period of 3 years if the Head of the Department does not retire, the Management necessarily will have to consider re- appointment on expiry of the tenure until retirement. In other words the University Statutes provides for appointment of seniormost Associate Professor as Head of the Department. Now the question to be considered is whether the Management is entitled to change the seniormost Associate Professor during the course of tenure for which she was appointed as Head of the Department. 6. We have to consider the above question with reference to the duties and responsibilities of the Head of the Department covered by the above provisions of the Statute. All the above provisions make the Head of the Department subordinate and accountable to the Principal of the college. In the first place the Head of the Department has to abide by the directions issued by the Principal consistent with the provisions of University Statutes, Ordinances and Regulations. The main duty of the Head of the Department as revealed by Clause 3 is to run the Department in an efficient manner with the co-operation and co-ordination among the teaching and non-teaching staff of the Department, which is supervised by the Head of the Department. In fact daily report of the assignment of work is required to be sent by the Head of the Department to the Principal. On the whole without the co-ordination and co-operation of the teaching and non-teaching staff the Head of the Department will not be able to run the Department efficiently. The ultimate objective of every Department is to impart best coaching and support to the students and their team work will be reflected in the performance of the students. We are convinced that inorder to be a competent Head of the Department he or she has to necessarily enjoy the support and co-operation from every member of the teaching and non-teaching staff. 7. The selection of Head of the Department by seniority is done as matter of course. But at the same time the Principal continuously monitors the performance of the Department Head and at any time if the Principal is satisfied that the Head of the Department is not capable of running Department efficiently on account of disharmony and non-cooperation for want of proper leadership of the Head of the Department and the infight among the teaching staff affects quality of performance of the Department it is for the Principal to enquire into the matter and suggest change of Head of the Department if that is the solution to the Governing body. It is for the Governing body to consider whether the reasons put forwarded by the Principal to change the Head of the Department are correct and if so, to forthwith implement the recommendation of the Principal for the benefit of the institution. So much so what we feel is that the tenure appointment only means that the seniormost person appointed should function as Head of the Department to the satisfaction of the Principal which means that the duties are performed strictly in terms of the provisions contained in Statute 81 (b) (1) stated above. Essentially the Head of the Department should provide leadership and support to the entire Department of teaching staff and others and there is nothing wrong in the Principal taking views of all members of the teaching staff while selecting the Head of the Department from among the seniormost eligible Associate Professors. The more the acceptability of the Head of the Department to all the members of the teaching staff the better will be the co- ordination and efficiency of the Department. In this case there is nothing on record to indicate that the Principal has considered whether the continuation of petitioner is undesirable and not conducive for maintaining high efficiency in the Department and placed his report to the Governing body for replacement of the Head of the Department. As already stated the Principal for justifiable reasons can recommend to the Governing body about the need to change the Head of the Department and if his recommendation is found genuine, bonfide and reasonable it is perfectly within the powers of the Governing body to change the incumbent which does not amount to punishment. We accordingly dispose of the writ petition with direction to the Principal to call the petitioner for a hearing on all the allegations raised in Ext.P4 and consider petitioner's objection and give his recommendations to the Governing body. If the recommendation of the Principal is to change the petitioner then the Governing body should also hear the petitioner and take a decision in the matter. Until a decision is taken by the Governing body, the 4th respondent will continue to hold the post of Head of the Department and thereafter based on decision taken by the Governing body. The Principal is directed to make his recommendations within 3 weeks from receipt of this judgment and the Governing body to take a decision within the following six weeks after receipt of report. 8. Exhibit P4 will stand confirmed, modified or substituted by fresh order to be issued by the Governing body. Writ petition is disposed of as above. Sd/- C.N. RAMACHANDRAN NAIR, JUDGE. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge |
