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2003 DIGILAW 353 (KER)

David Loocose v. University of Kerala

2003-06-03

A.K.BASHEER

body2003
Judgment :- 1. Petitioners who are stated to be qualified Football coaches, have filed this Original Petition challenging Ext. P14 Notification issued by the University of Kerala to the extent it restricts appointment to the post of Football coach in the University only to a woman candidate. According to the petitioners, the University Act, Statutes or Ordinances do not provide for a woman football coach and therefore such a reservation given to female football coaches in the University is illegal and unsustainable. Petitioners therefore pray for a declaration that "the reservation given to the post of football coach (woman) is incorrect, illegal and unenforceable under law" and that as per the University law the post of football coach is a general category post. The petitioners also pray for a direction to the respondents "to re-advertise the post of football coach and make fresh selection proceedings". 2. It is true that serial No. 3 in Ext. P14 Notification issued by the University confines the post of football coach to a woman candidate. It is alleged by the petitioners that respondent No. 6, who is admittedly a qualified woman football coach, was appointed in the University at the behest of respondent No. 5 overlooking the claim of the petitioners to be appointed to the said post. It is contended by the petitioners that there are only two women football teams among the colleges under the University of Kerala and therefore a woman coach is totally unnecessary in the University. The other contention is that the Ordinance of the University does not contemplate or provide for appointment of a woman coach in the University and therefore in the absence of an amendment to the Ordinance, the post of football coach to which only male candidates have been appointed hitherto cannot be exclusively confined to the category of women coaches. It is further contended that respondents 1 to 5 were not justified in issuing Ext.P14 notification without issuing an Ordinance converting the post of coach into that of a woman coach or in the alternative a new post of woman coach ought to have been created by amending the existing Ordinance/ Regulation. 3. Respondents 1 to 5 have denied the allegation of the petitioners that Ext. P14 notification inviting applications for appointment to the post of woman football coach was made at the behest of respondent No. 5. 3. Respondents 1 to 5 have denied the allegation of the petitioners that Ext. P14 notification inviting applications for appointment to the post of woman football coach was made at the behest of respondent No. 5. It is stated in their counter affidavit that as per Art.15(3) of the Constitution of India, the University is justified in making special provision for improving the quality of women's football team and the decision to appoint a woman coach for the said purpose was taken in implementation of the above decision. It is also pointed out that there is already one male football coach in the Department of Physical Education. The decision to appoint a woman football coach was taken since the available male coach could not effectively contribute in improving the performance of women football team. It is also stated by respondents 1 to 5 that all the eight football coaches recruited by the University so far were male coaches and the Syndicate had decided to appoint a female coach taking into view the necessity to improve the standard of women's football in the University. It is further contended that the Syndicate of the University at its meeting held on 13.5.1999, had decided to appoint a woman football coach in the University and it was thereafter that Ext. P14 Notification was issued. 4. Respondent No. 6 in her counter affidavit has justified the decision of the University in inviting applications for appointment of a woman coach. It is pointed out by her that there are women football teams in six colleges under the University of Kerala. She has mentioned the names of those colleges also. She has stated her qualifications and credentials as a woman football coach and also the various assignments that she had undertaken in her capacity as a coach-cum-manager. It is stated that the University could not send women teams in the inter-university tournaments since there was no woman coach/manager to accompany women's team in those competitions which were held in various parts of India. It is further pointed out by respondent No. 6 that the university had presumably decided to appoint a woman coach for the women football team in the University to encourage women's football and also to facilitate the participation of women's team in various inter-university competitions and tournaments. Respondent No. 6 has termed the attitude of the petitioners as male chauvinism. 5. Respondent No. 6 has termed the attitude of the petitioners as male chauvinism. 5. It is contended by learned counsel for the respondents 1 to 5 that the decision to appoint a woman coach was taken since the members of the women's team always prefer a woman coach/manager to train them. The team members also prefer a woman coach to accompany the team if they have to go outside to participate in any event or tournament, especially so if the team had to go out of the State. Reasons are obvious and perfectly justifiable. A male coach/manager accompanying a women's team may be an embarrassment to many of the participants, to say the least, especially in our present social set up. To put it differently, a woman coach/manager may be a more welcome proposition to majority of the girl students who wish to participate in a tournament or event. Therefore, if the University felt that it would be advisable to appoint a woman football coach in the University, the said view cannot be termed as irrational or unrealistic. 6. The other contention of the petitioners is that respondents 1 and 2 were not justified or legally competent to appoint a woman football coach for the woman's team without issuing an Ordinance in this regard. It is submitted by the learned counsel that in view of the provisions contained in S.36 and 37 of the Kerala University Act, the appointment of a woman coach in the University without making an Ordinance in this regard is totally illegal and vitiated. S.36 deals with Ordinances and S.37 sets out the procedure for making Ordinances. S.36 of the Act reads as follows: "36. Ordinances.- Subject to the provisions of this Act and the statutes, the Syndicate shall have power to make ordinances providing for all or any of the following matters, namely:- (a) the levy of fees in colleges and other institutions, by the University; (b) the residence and discipline of students; (c) the work load and pattern of teaching staff in colleges; (d) the fixation of the scale of pay of various posts in the University and the terms and conditions of service of officers of the University; and (e) all other matters which by this Act or the Statutes are to be, or may be, provided for by the Ordinances". It may be noticed that the Syndicate has power to make Ordinances for the levy of fees in colleges and other institutions, the residence and discipline of students, the work load and pattern of teaching staff in colleges and the fixation of scales of pay of various posts in the University and the terms and conditions of service of officers of the University. In addition to the above, the Syndicate may make Ordinances for all other matters which by the Act or Statute are to be provided for. A reading of the above section, in my view, does not indicate that the University cannot appoint a woman coach for the women's team in the University without amending the existing ordinance or without making a fresh ordinance in that regard. Learned counsel for the petitioners contended that the post of a woman coach being a separate category of post, such a new post could not have been created by respondents 1 and 2 without making an ordinance. Learned counsel also invites my attention to S.37 of the Act which stipulates as to how an ordinance is to be made. There cannot be any difference of opinion as to how an Ordinance may be made for a purpose contemplated under the Act. 7. It is contended by learned counsel for the petitioners that the Schedule attached to the Kerala University First Ordinance,1978 does not provide for appointment of a footfall coach (woman). It is pointed out that the Schedule mentioned above gives the name of post, scale of pay, age, qualifications and method of appointment. Serial No. 106 is the particular item relating to the post of "coaches" in the Schedule mentioned above, which is extracted hereunder: "Department of Physical Education It is contended by the learned counsel that so long as there is no amendment to the Schedule attached to the First Ordinance, 1978, by incorporating the post of woman coach in the Schedule, respondents 1 and 2 are not entitled to appoint a woman coach in the University. I am not inclined to accept the above contention raised by the learned counsel for the petitioners, since in my view, the post of a coach will take in both male and female coaches. 8. In this context, it is also pertinent to note that the University had appointed only made football coaches hitherto. I am not inclined to accept the above contention raised by the learned counsel for the petitioners, since in my view, the post of a coach will take in both male and female coaches. 8. In this context, it is also pertinent to note that the University had appointed only made football coaches hitherto. It is stated in the counter affidavit of respondent Nos.1 to 5 that all the eight coaches recruited in the University so far were males and that the football coach now in service is also a male. The decision to appoint a woman coach for the women's football team was taken with a specific purpose of giving a new thrust and impetus to the efforts to improve the quality of women's football in the University. In my view, the decision of the Syndicate to appoint a woman football coach is perfectly legal and justifiable. 9. It is contended by learned counsel for respondent No. 6 that the provisions of S.13 of the General Clauses Act will clearly indicate that the word 'coach' used in the Schedule to the Kerala University First Ordinance, 1978 will take in both male and female coaches. S.13 of the General Clauses Act reads as follows: "13. Gender and number: In all Central Acts and Regulations unless there is anything repugnant in the subject or context - (i) word importing the masculine gender shall be taken to include females; and (ii) words in the singular shall include the plural and vice-versa." Though a contention can be taken that S.13 of the General Clauses Act is applicable to Central Acts and Regulations only, it can never be disputed that an interpretation which is not otherwise repugnant to the subject or context can always be adopted. It cannot be assumed that while making First Ordinance, 1978, the University had not contemplated appointment of a female coach in a particular discipline of sports or games. There is no rationale in importing a narrow gender differentiation while interpreting the word coach in order to restrict its meaning to only a male coach. The argument of the petitioners that such a strict interpretation has to be given to the word "coach" used in the Schedule to the First Ordinance, 1978 does not stand to reason at all. There is no rationale in importing a narrow gender differentiation while interpreting the word coach in order to restrict its meaning to only a male coach. The argument of the petitioners that such a strict interpretation has to be given to the word "coach" used in the Schedule to the First Ordinance, 1978 does not stand to reason at all. If such an interpretation is given to the word coach, the result will be not only farcial and puerile but also totally illogical. 10. Having regard to the entire facts and circumstances of the case, I am of the view that there is no merit in the contention of the petitioners that respondents 1 and 2 were not competent to appoint a woman football coach in the University of Kerala or that Ext. P14 Notification to the extent it confines or restricts the appointment of a football coach from among women coaches, is illegal or against the statutes or Ordinances of the University of Kerala. It is held that respondents 1 to 5 are competent or empowered to appoint women coaches also, if necessary, in different disciplines of sports and games as provided in the Schedule to the Kerala University First Ordinance, 1978. There is no merit in the Original Petition and it is accordingly dismissed.