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2007 DIGILAW 613 (KER)

Payyannur Educational Society, Represented by Its President, Kannur Dist v. V. V. Sathimani, Kannur Dist

2007-09-17

K.S.RADHAKRISHNAN, V.K.MOHANAN

body2007
Judgment :- Radhakrishnan, J. We are in this case concerned with the interpretation of Section 65(2) (b) of the Kannur University Act which gives preference in the matter of future appointments in private colleges under the management of the educational agency to teachers who have been relieved due to cessation of vacancy or for any other reason. 2. Right to get preference for future appointment to a teacher discharged from private college was the subject matter of a Division Bench decision of this court in Mother Anasthasia v. University Appellate Tribunal (1980 K.L.T. 666) wherein this court examined the scope of the unamended Section 57 (6) of the Calicut University Act, 1975 which is extracted hereunder for easy reference. “Notwithstanding anything contained in sub-section (1) and (4) a teacher discharged from a private college on or after the 14th day of March, 1974, due to abolition of a course of study in that college or for any other reason except disciplinary action against him shall be given preference in the matter of future appointments in the private college or, as the case may be, or any of the private colleges under the management of the educational agency within the University area.” The Division Bench laid considerable emphasis on the word ‘discharge’ used in the above Section and stated as follows: “We have to first consider the word ‘discharge’ occurring in the Section. The respondents’ counsel submits that the word ‘discharge’ would take within its ambit any termination, while the petitioner’s counsel submits that the word discharge has a definite meaning and a distinct connotation. According to him, the word discharge needs volition on the part of one to have its impact on another, whereas the word termination need not necessarily take in a subject and an object. We have given our anxious consideration to this aspect of the case, and we feel constrained despite our sympathies with the fourth respondent’s predicament to agree with the petitioner’s interpretation. The word ‘termination’ is used both in the transitive and intransitive form. Not so the word ‘discharge’ in the law of master and servant. We have given our anxious consideration to this aspect of the case, and we feel constrained despite our sympathies with the fourth respondent’s predicament to agree with the petitioner’s interpretation. The word ‘termination’ is used both in the transitive and intransitive form. Not so the word ‘discharge’ in the law of master and servant. When a teacher works in a temporary leave vacancy, he or she has to go out of service on the expiry of the term for which he or she was appointed and there is nothing further that has to be done by the appointing authority for termination of this appointment. No order of discharge or relief is necessary in such cases. A person appointed in a temporary vacancy shows that her term will run out on a particular day and it is with this knowledge that he or she enters service. In other words, in all cases of temporary service for a particular period, what is to happen on the expiry of that period is known. Abolition of a course of study cannot be anticipated. There may be many other cases not anticipated not in the knowledge of any one, which may result in the discharge of a teacher. When such reasons occur, the teacher goes out not voluntarily but on her being discharged from service by an act of the appointing authority.” The court however opined that the unamended Section 57 (6) might cause great hardship and suffering to deserving teachers denying them a right to be appointed when future vacancies arise. The court also opined that it might also give a handle to the management to misuse the right of appointment and it was for the Legislature to consider that aspect of the case and ameliorate the service conditions of teachers in distress. The above decision was taken up in appeal before the apex court by the State of Kerala in C.A.No.6768-69 of 1983. The above decision was taken up in appeal before the apex court by the State of Kerala in C.A.No.6768-69 of 1983. The apex court in State of Kerala v. Mother Anasthasia (1997 (1) KLT 621 (SC), after referring to Section 57 (6), held as follows: “A reading thereof would indicate that notwithstanding anything contained in sub-section (i) and S.4 of S.57, a teacher discharged from a private college on or after March 14, 1974 due to abolition of the course of study in that college or for any other reason except on disciplinary action against him, shall be given preference in further appointments in a private college or any of; the private colleges under the Management of the educational agency within the University area. Admittedly, the third respondent was appointed in a leave vacancy for a short period of three months. The intendment of sub-s.6 appears to be only that when permanent teacher or teacher appointed on a regular basis is discharged from service due to abolition of the course of study in that college or for any other reason, obviously, other analogous causes other than disciplinary action, such a teacher who held the post was given preferential treatment for future appointment. A temporary teacher in a leave vacancy cannot be considered as discharged nor claimed the status as discharged employee. Discharge would connote for any other reason ujus dem generis due to abolition of the post or course of study or such similar circumstances except for discharge due to misconduct. Such a teacher only will be eligible to set up preferential claim for appointment but not a teacher who fortuitously came to be appointed in a leave vacancy much less for a limited period.” The Legislature taking note of the various observations and findings rendered by this court as well as the apex court brought in substantial changes to the above mentioned Section by University Laws (Amendment) Ordinance, 1989 which later became an Act. Section 65 (2)(b) of the Kannur University Act which is pari materia with Section 57 (6) of the Calicut University Act reads as follows: 65. Section 65 (2)(b) of the Kannur University Act which is pari materia with Section 57 (6) of the Calicut University Act reads as follows: 65. Conditions of service of teachers of private colleges.- (1) Notwithstanding anything contained in any law or in any contract or other document, the conditions of service of teachers of private colleges, whether appointed before or after the commencement of this Act, including conditions relating to pay, pension, provident fund, gratuity, insurance and age of retirement, shall be such as may be prescribed by the Statutes. (2) Notwithstanding anything contained in this Act or the Statues, Ordinances and Regulations made thereunder, - a) xx xxx xxx “b) a teacher relieved from a private college on or after the 14th day of March 1974 due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed or for any other reason except disciplinary action against him, shall be given preference in the matter of future appointments in the private college or, as the case may be, any of the private colleges under the management of the educational agency within the University Area.” (emphasis added) The word ‘discharged’ which was interpreted by this court as well as by the apex court was replaced by the word ‘relieved’. After the amendment, the Section specifically provides that a teacher who was relieved from a private college due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed shall be given preference for future appointment. The expression “for any other reason” also gives a wider meaning to that provision. 3. Counsel for the appellant tried to build up a contention based on the decision of the apex court that thrust has to be given on the nature of appointment, that is, as to whether the appointment was regular or temporary. Counsel submitted that only when a person is appointed on a regular or permanent basis and when that person is relieved due to abolition of a course of study or on cessation of the period for which he was appointed regularly he could claim the benefit of reappointment. Counsel submitted that only when a person is appointed on a regular or permanent basis and when that person is relieved due to abolition of a course of study or on cessation of the period for which he was appointed regularly he could claim the benefit of reappointment. Counsel also contended that the appellant was appointed in a vacancy caused when the incumbent was sent on deputation and was appointed in a vacancy cased when the incumbent was sent on deputation and was relieved not due to abolition of a course of study or on cessation of period of appointment. Counsel also submitted that the amendment is inconsequential and the principle laid down by the apex court still holds good. 4. We find it difficult to accept the contention of the counsel for the appellant, which has lost its substratum when the provision was amended by the University (Amendment) Act. The word ‘discharge’ was substituted by the word ‘relieved’ by the University Laws (Amendment) Act with a purpose. The fact whether a teacher was occupying a leave vacancy or deputation vacancy is of no consequence when we apply Sec.65 (2)(b) of the Act but the question is whether such a teacher is relieved from a private college on or after 14th day of March 1974 due to abolition of course of study in that private college or cessation of period for which he was appointed or for any other reason. A teacher may be appointed in a vacancy occurred due to various reasons when an incumbent goes on leave, deputation etc. Statute gives preference for future appointment to those teachers who occupy such vacancies whether it is leave vacancy or otherwise. The University Laws (Amendment) Act clearly confers a statutory right for future appointment to those teachers who are relieved on or after 14th day of March 1974 due to abolition of a course of study or cessation of the periods for which they were appointed or for any other reason for future appointments. The expression “for any other reason” means the reason other than what is enumerated in the earlier part of the Section. The word ‘any’ excludes limitation or qualification, it connotes wide generality. To hold that the expression “any other reason” has to be restricted applying the principle of ujus dem generis would be stretching the interpretation too far. The expression “for any other reason” means the reason other than what is enumerated in the earlier part of the Section. The word ‘any’ excludes limitation or qualification, it connotes wide generality. To hold that the expression “any other reason” has to be restricted applying the principle of ujus dem generis would be stretching the interpretation too far. The expression “any other reason” therefore calls for a wider interpretation and deputation vacancy also would fall under that expression. 5. The above mentioned principles when applied to Section 65(2)(b) of the Act it is clear that teachers who are discharged from private colleges under the management of the educational agency would get preference for future appointment provided other conditions are satisfied. First respondent in this case is fully entitled to get preference on the basis of the above mentioned statutory provision. She was appointed in a vacancy of lecturer as per Ext P1 order on 26.09.1987 and was relieved on 15.06.1988. She was then reappointed as per Ext.P2 order dated 31.8.1988 and she had worked from 1.9.1988 till 29.5.1989. Amendment came into force only on 6.5.1989 and the Kannur University Act was enacted in the year 1996. Going by Section 65(2)(b) of the Kannur University Act, it is clear that the first respondent stood relieved after 14.03.1974, vide Ext P2 on 29.05.1989 that is after the date of substitution of Section 57(6) of the Calicut University Act. The first respondent stood relieved after the date mentioned in the provision, i.e. 14.03.1974 not due to disciplinary action, but due to cessation of the vacancy or was relieved for the reason that the previous incumbent had resumed duty after the period of deputation and hence she is entitled to the benefit of Section 65 (2)(b) of the Act providing for preference for future appointment. In such circumstances, we fully endorse the view of the learned single judge. Appeal therefore lacks merits and the same is dismissed.