DR. JAGATHY RAJ V.P. vs DR. RAJITHA KUMAR

                                              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
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
as Head of the Department (in short “HOD”)/Director of School of
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 6th
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 18th  July 2017, the
appellant   expressed   his   unwillingness   because   of   his   preoccupation 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 23rd 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 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.  
6. The Syndicate of the University in its meeting held on 20th
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 27th
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 18th
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 1st  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 1st  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 27th  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 7th  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 26th
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
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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
Division Bench of the High Court impugned dated 8th 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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