Whether relinquishment of right to promotion once made exists perpetually or is it for specific term? Supreme Court answers

Supreme Court: While addressing the question of law with regard to lifespan of relinquishment of claim for consideration for promotion in educational institutions, the Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed,

“…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 be available to him to serve when the next rotation becomes due…”

The instant appeal had been preferred to assail the judgment of the Kerala High Court whereby it had set aside the judgment of the Single Judge and directed the Cochin University of Science and Technology to nominate respondent 1 as Head of the Department (HOD) of School of Management Studies of Cochin University.

Background

Notably, both the appellant and respondent 1 were members of the teaching faculty and the appellant was senior to respondent 1. In terms of Section 39(1) of the University Act, the Government of Kerala framed its Statute 18 envisaging the appointment of a Director/HOD. The crux of the issue was that the appellant being the next senior most Professor in queue was eligible to be nominated by rotation as HOD in the year 2017, however, because of his preoccupation in teaching and research he had expressed his unwillingness to be considered for the post. Accordingly, the next eligible Professor Dr. Mavoothu D. was nominated as Director/HOD for a period of three years.

It was the case of the appellant that before the term of Dr. Mavoothu D was going to expire; he had showed his willingness at that stage for appointment as Director/HOD. At the same time, respondent 1 who was next to the appellant in seniority equally protested the claim of the appellant.

Statute 18

The Syndicate of the University observed that the relinquishment made by the appellant was specific to the nomination in the year 2017 and that was the reason Dr. Mavoothu D. was nominated. Taking note of Statute 18; that the rotation begins according to seniority and not at the point at which earlier nomination was made, the University held that the appellant had to be considered first.  The reasoning given by the University was that it 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.

Relinquishment of promotion; whether transitory or perpetual?

Challenging the order of the University, the respondent 1 had approached the High Court, the Single Judge had observed that the senior most person had to be considered for appointment as HOD/Director of the Department on rotational basis for a period of three years and the appellant who had relinquished his claim on rotation of three years in the year 2017 had expressed his unwillingness only for the period when his name came for consideration in 2017 but the time when a fresh consideration had taken place, the appellant could not be denied his right of fair consideration as the relinquishment could not be for an infinite period.

However, by the impugned judgment, the findings of the Single Judge was overturned by the Division Bench 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 had foregone his right of consideration for all times to come and respondent 1, who was the next in queue, was to be considered for nomination.

Analysis and Findings

Noticeably, what is being envisaged from Statute 18 is that teachers who are eligible for being considered for HOD according to seniority 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. However, it was 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.

Relying on in N. Suresh Nathan v. Union of India, 1992 Supp.(1) SCC 584., wherein it had been 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”, the Bench opined, although there was no prohibition under Statute 18, still if two views are possible and the University had 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, the same could not be called inappropriate and unjust.

Since, the appellant had relinquished his claim in the year 2017 because of undergoing research work at that time, the Bench opined that 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 be available to him to serve when the next rotation becomes due and that was 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.

Conclusion

In the light of above, the Bench concluded that the interference made by the Division Bench in interpreting Statute 18 of the University wa not sustainable in law and deserved to be set aside. Consequently, the appeal was allowed and the impugned judgment was quashed and set aside.

Jagathy Raj V.P. v. Rajitha Kumar S., 2022 SCC OnLine SC 152, decided on 07-02-2022]


*Judgment by: Justice Ajay Rastogi


Appearance by:

For the Appellant: P.S. Patwalia, Senior Advocate

For Respondent 1: Bina Madhavan, Advocate


Kamini Sharma, Editorial Assistant has put this report together 


 

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