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2021 DIGILAW 63 (KER)

State of Kerala v. Jomy John W/o Eldos

2021-01-20

ALEXANDER THOMAS, T.R.RAVI

body2021
JUDGMENT : ALEXANDER THOMAS, J. 1. The prayers in the aforecaptioned Original Petition (KAT) filed under Articles 226 and 227 of the Constitution of India are as follows (See Page Nos. 12 and 13 of the paper book of this OP): “1. To set aside Exhibit P4 Order dated 19.08.2019 of the Kerala Administrative Tribunal in O.A. No. 691/2017. 2. Any other order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.” 2. Heard Sri. B. Vinod, learned Senior Government Pleader appearing for the petitioners (State of Kerala and the Director of Collegiate Education/respondents in the O.A. before the Tribunal) and Sri. Brijesh Mohan, learned counsel appearing for the sole respondent in the OP/sole applicant in the O.A. before the Tribunal (hereinafter referred for convenience as the original applicant/applicant). 3. The sole respondent herein/original applicant has filed Ext.P1 O.A. No. 691/2017 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench, with the following main reliefs/prayers (See Page No. 26 of the paper book of this OP): “(i) Call for the records leading to Annexures-A3, A5 and A8 and set aside the same. (ii) Declare that the service rendered by the applicant as Lecturer in the School of Technology and Applied Sciences under the M.G. University from 13.3.1998 to 5.12.2006 is liable to be counted for the purpose of placement in Government service as per Annexures-A2 and A9 orders. (iii) Direct the respondents to grant placement to the applicant counting her service in the M.G. University from 13.3.1998 to 5.12.2006. (iv) Issue such other orders as this Hon'ble Tribunal may deem fit and proper.” 4. (iii) Direct the respondents to grant placement to the applicant counting her service in the M.G. University from 13.3.1998 to 5.12.2006. (iv) Issue such other orders as this Hon'ble Tribunal may deem fit and proper.” 4. The Tribunal as per the impugned Ext.P4 final order dated 19.08.2019 in O.A. No. 691/2017 has held that the prior service of the applicant is eligible to be counted for further placement in her subsequent appointment in Government collegiate service and that the impugned orders at Annexures-A3, A5 and A8 are set aside and quashed and that the 1st respondent therein/1st petitioner herein (State Government in the Higher Education Department) has been directed to pass orders to reckon the prior service of the original applicant for the period from 13.03.1998 to 05.12.2006 as Lecturer in the School of Technology and Applied Science, Mahatma Gandhi University, for the purpose of placement and conferment as senior scale of the Assistant Professor, which is the present post held by her in the collegiate education department of the State Government, within two months, etc. It is this final order in Ext.P8 rendered by the Tribunal in the above O.A. that is under challenge in this original petition filed by the State authorities concerned under Articles 226 and 227 of the Constitution of India. 5. The specific case of the original applicant/respondent herein is as follows: That she had already acquired and possessed all the prescribed qualifications for holding the post of Lecturer/Assistant Professor, as to the provisions contained in the University Grants Commission (UGC) Regulations and Norms as well as the provisions contained in the University statutes and the norms issued by the Government in the special rules governing the Collegiate Education Department service, in the discipline concerned. Further that, the Mahatma Gandhi University had issued Annexure-A10 selection notification 21.03.1997 inviting applications from qualified hands for the post of Lecturer in Computer Application in the School of Technology and Applied Sciences of the said University. It has been made clear in Annexure-A10 notification that the appointment is for the period of three years on temporary basis on UGC/AICTE scales of pay, but is likely to be continued. Further, it is stipulated in Annexure-A10 that the qualification for the above post will be, as prescribed by the UGC/AICTE and the Communal reservation prescribed in the University statutes will be observed in filling up of the posts, etc. Further, it is stipulated in Annexure-A10 that the qualification for the above post will be, as prescribed by the UGC/AICTE and the Communal reservation prescribed in the University statutes will be observed in filling up of the posts, etc. The petitioner would further state that she, being fully qualified for the post of Lecturer in Computer Applications, she had responded to Annexure-A10 selection notification and she was subjected to the selections process, which was conducted by the Mahatma Gandhi University strictly in accordance with the norms fixed by the UGC, etc. That thereafter, the applicant was appointed as Lecturer in Computer Applications in the school of Technology and Applied Sciences of the said University, as per Annexure-A11 order dated 09.03.1998 issued by the Registrar of the Mahatma Gandhi University (See Page Nos. 67 and 67A of this paper book). The scale of pay of the post to which the petitioner has been selected and appointed is also mentioned therein. It is also made clear therein that the appointment to the post is temporary for a period of three years in the first instance and that will be made permanent and the said appointment in the said University will be governed by the provisions of the Mahatma Gandhi University First Statutes. The details of the scale of pay in the abovesaid post in question are dealt with in Annexure-A4 representation dated 30.06.2014 (See Page Nos. 32 to 34 of this paper book). That thereafter, the petitioner has joined duty as Lecturer in Computer Applications in the said School/department of the Mahatma Gandhi University and the probation was duly declared by the University authorities, as can be seen from S. No. 2 of Annexure-12 proceedings dated 13.03.2000 issued by the Registrar of Mahatma Gandhi University (See Page No. 68 of this paper book). Thus, the applicant has duly served in the said post of Lecturer in the Mahatma Gandhi University for the period from 13.03.1998 to 05.12.2006. Thus, the applicant has duly served in the said post of Lecturer in the Mahatma Gandhi University for the period from 13.03.1998 to 05.12.2006. In the meanwhile, the petitioner had responded to the selection notification issued by the Kerala Public Service Commission for selection and appointment to the post of Lecturer in Computer Science in the Collegiate Education Department of the State Government and after regular selection process, she was duly included in the rank list and was later advised for appointment by the Public Service Commission and pursuant thereto, she was duly appointed as Lecturer/Assistant Professor in Computer Science in the Collegiate Education Department and had joined duly in the said post. 6. The claim of the original applicant is that he is entitled to count her service as Lecturer/Assistant Professor in the School of Engineering and Applied Science of the Mahatma Gandhi University for the period from 13.03.1998 to 05.12.2006 for the purpose of conferment and placement as Senior Scale Assistant Professor in the Collegiate Education Department. The norms for the abovesaid purpose of placement as Senior Scale Lecturer/Assistant Professor are contained in Annexure-A2 and Annexure-A9/Ext.R2(a). Annexure-A2 G.O. (MS) No. 125/99/H.Edn. dated 07.10.1999 issued by the competent authority of the State Government in the Higher Education Department, has stipulated the following conditions for the abovesaid purpose, in paragraph No. 2 of the said Government Order, which reads as follows: “2. The Commission in consultation with the Ministry of human Resources Development (Department of Education) reconsidered the matters and resolved revised guidelines as follows for counting of the previous service for purposes of senior scale/selection grade under the career advancement scheme for Lecturers and requested to bring the above decision to the notice of the college under the jurisdiction of the State: (1) Previous service without any break as Lecturer or equivalent in a University, College, National Laboratory or other scientific organisations (CSIR, ICAR, DRDO, UGC etc.) and as a University Grants Commission Research Scientist should be counted for placement of Lecturers in Senior scale/Selection Grade provided that: (a) the post was in an equivalent grade/scale of pay as the post of a lecturer. (b) the qualifications for the post were not lower than the qualifications prescribed by University Grants Commission for the post of Lecturer. (c) the Lecturers concerned possessed the minimum qualification prescribed by University Grants Commission for appointment as Lecturers. (b) the qualifications for the post were not lower than the qualifications prescribed by University Grants Commission for the post of Lecturer. (c) the Lecturers concerned possessed the minimum qualification prescribed by University Grants Commission for appointment as Lecturers. (d) the post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government. (e) the appointment was not ad-hoc or in a leave vacancy of less than one year duration. (2) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (Private/local body/Government, if the above criteria are satisfied.” 7. Annexure-A9/Ext.R2(a) G.O. (P) No. 171/99/H.Edn. dated 21.12.1999, which is compilation of government guidelines on the implementation of UGC scale, including revision of pay scales of teachers of Universities and colleges in Kerala and also deals with eligibility norms in that regard, as can be seen from clause 7.1 to 7.7 thereof. Clause 7.1 to clause 7.7 of Annexure-A9/Ext.R2(a) G.O. (Ms.) dated 21.12.1999, reads as follows: “7.1 COUNTING OF PAST SERVICE Previous service, without any break as a Lecturer of equivalent, in a University, college, national laboratory, or other scientific organisation, e.g. CSIR, ICAR, DRDO, UGC, ICSSR, ICHR and as UGC Research Scientist, should be counted for placement of lecturer in Senior Scale/Selection Grade provided that: 7.2 The post was in an equivalent grade/scale of Pay as the post of Lecturer. 7.3 The qualifications for the post were not lower than the qualifications prescribed by the UGC for the post of Lecturer. 7.4 The Candidates who apply for direct recruitment should apply through proper channel. 7.5 The concerned Lecturers possessed the minimum qualifications prescribed by the UGC for appointment as Lecturers. 7.6 The post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government/Central Government/Institution's regulations. 7.7 The appointment was not ad-hoc or in a leave vacancy of less than one year duration. Ad-hoc service of more than one year duration can be counted provided.” 8. 7.6 The post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government/Central Government/Institution's regulations. 7.7 The appointment was not ad-hoc or in a leave vacancy of less than one year duration. Ad-hoc service of more than one year duration can be counted provided.” 8. Thus, it can be seen from a combined reading of Annexure A2 and Annexure A9/Ext.R2(a) government orders, that the previous service, without any break as a Lecturer or equivalent, in a University, college, national laboratory, or other scientific organization (CSIR, ICAR, DRDO, UGC, etc.) and as a UGC Research Scientist, should be counted for placement of lecturer in Senior Scale/Selection Grade, provided that the post was in an equivalent grade/scale of pay as the post of Lecturer and the qualifications for the post were not lower than the qualifications prescribed by the UGC for the post of Lecturer and the incumbent Lecturers concerned should have possess the minimum qualifications, as prescribed by the UGC for appointment as Lecturers and the post should have been filled with the prescribed selection procedure as laid down by the University/State Government and the appointment was not ad-hoc or in a leave vacancy of less than one year duration. 9. Further, by way of abundant caution the competent authority of the State Government in the Higher Education Department has made it clear like the day light, as per paragraph No. 2 (2) of Annexure-A2 Government Order that, no distinction should be made with reference to the nature of management or the institution where previous service was rendered (private/local body/Government) and if the abovesaid criteria are otherwise satisfied. The abovesaid eligibility conditions in paragraph No. 2(1) of Annexure-A2 G.O are more or less broadly reiterated in clauses 7.1 to 7.7 of Annexure A9/Ext.R2(a) G.O. 10. In the instant case, it is the specific case of the petitioner that she had acquired all the prescribed qualifications holding the post of Lecturer/Assistant Professor in the discipline concerned, as per the UGC norms and as per the University First Statutes concerned as well as the special rules issued by the State Government for governing the Collegiate Education Department service. The abovesaid documents produced by the original applicant in the O.A. would show that the scale of pay was the same, as that prescribed by the State Government, University and UGC, for the post of Lecturer. The abovesaid documents produced by the original applicant in the O.A. would show that the scale of pay was the same, as that prescribed by the State Government, University and UGC, for the post of Lecturer. A reading of Annexure-A10 selection notification would also broadly indicate that the qualifications for the post in question, to which the petitioner was selected and appointed in the Mahatma Gandhi University, was broadly the same as that of the UGC/AICTE, State University and State Governmental norms. Thus, the applicant has definite case that she had possessed all the minimum qualifications prescribed in the UGC, for appointment as Lecturer. The applicant has asserted (see Ground ‘D’ of the of the O.A.) that the selection was conducted by the Mahatma Gandhi University, in pursuance of Annexure-A10 selection notification, strictly in accordance with the norms and guidelines in the UGC and the University First Statutes concerned. The applicant has reiterated in paragraph No. 4 of the O.A. that she has thus acquired all the eligibility conditions stipulated in Annexure A2 and Annexure A9/Ext.R2(a) Governmental norms, for the purpose of placement as a Senior Scale Assistant Professor, consequent to her appointment in the government service. There does not appear to be any serious dispute that the School of Technology and Applied Sciences is a school/department of the Mahatma Gandhi University established in terms of the provisions of the Mahatma Gandhi University Act and the First Statutes and the norms framed thereunder. There is no dispute that the appointment of the petitioner referred to in Annexure-A10 selection notification and Annexure-A12 proceedings was not to a post in a private unaided college affiliated to the Mahatma Gandhi University. Indisputably, the selection and appointment of the petitioner in terms of Annexure-A10 and Annexure-A12, was to the post of Lecturer, as then designated, which was later re-designated as Assistant Professor, in a school/department of the Mahatma Gandhi University. Merely because, the School of Technology and Applied Sciences of the Mahatma Gandhi University happens to be functioning under the Mahatma Gandhi University as a self financing autonomous department/school, will not make the appointment of the petitioner as a Lecturer in a private aided college affiliated to the Mahatma Gandhi University or any other university. Merely because, the School of Technology and Applied Sciences of the Mahatma Gandhi University happens to be functioning under the Mahatma Gandhi University as a self financing autonomous department/school, will not make the appointment of the petitioner as a Lecturer in a private aided college affiliated to the Mahatma Gandhi University or any other university. This we say so, as it is a matter of common knowledge that though the post of Lecturer/Assistant Professor in private unaided colleges affiliated to the Universities in the State of Kerala, may not be having the same scale of pay as that of the post of Lecturer/Assistant Professor in the University Departments, private aided colleges and Government colleges. Moreover, many a time, the selection to teaching post in recognized private unaided colleges affiliated to the University, may not be made in accordance with the provisions contained in the University First Statutes and the UGC norms. Therefore, we fully understand the concern of the State Government authorities to make a fine distinction between service of Lecturer in recognized private unaided colleges or private unaided institutions affiliated to Universities in the State, from the post of Lecturer/Assistant Professor in Government Colleges, private aided colleges and University Teaching Departments. It appears that the State Government authorities concerned were under the misconception that the post of Lecturer in Computer Applications in the School of Technology and Applied Sciences of the Mahatma Gandhi University, cannot be treated as a teaching post, which comes within the eligibility zone of Annexure A2 and Annexure A9/Ext.R2(a), on the ground that the abovesaid school/department in the University was running as a self-financing institution and not as an institution which is fully funded directly from the funds of the University/State. So long as, the four eligibility conditions stipulated in paragraph No. 2 (1) of Annexure-A2 and clauses 7.1 to 7.7 of Annexure A9/Ext.R2(a) Government Order are fulfilled, then the incumbent concerned should be considered for conferment of placement as Senior Scale Assistant Professor, in accordance with those norms. Therefore, the consideration made by the State Government authorities, under the mistaken notion as if, the post of Lecturer in the School of Technology and Applied Sciences in the Mahatma Gandhi University is only a teaching post in an unaided college, was on the basis of irrelevant considerations and not taking into account the core of the relevant aspects, as taken hereinabove. Further, it appears that paragraph No. 2 (2) of Annexure-A2 Government Order dated 07.10.1999 is not replicated and reiterated in clause 7.1 to 7.7 of Annexure A9/Ext.R2(a) Government Order issued subsequently. Even if, paragraph No. 2 (2) of Annexure-A2 Government Order were not included therein, still what is required is that the eligibility conditions stipulated in paragraph No. 2(1) of Annexure-A2 G.O is satisfied by the incumbent concerned for getting the claim considered for placement as Senior Scale Assistant Professor. Therefore, the matter in relation to paragraph No. 2(2) of Annexure-A2 G.O is not very relevant and germane in the facts and circumstances of the case, for the simple reason that the post to which the petitioner was selected and appointed in the School of Technology and Applied Sciences of Mahatma Gandhi University, would certainly fulfil the abovesaid norms in paragraph No. 2(2) of Annexure-A2 Government Order and clauses 7.1 to 7.7 of Annexure A9/Ext.R2(a) Government Order. In this view of the matter, the Tribunal cannot be faulted in any manner for having arrived at the conclusion therein and in having issuing the impugned directions and orders therein. In other words, the contentions of the petitioners are not tenable or sustainable. 11. Sri. B. Vinod, learned Senior Government Pleader appearing for the petitioners (State authorities) would submit that the impugned Ext.P4 final order rendered by the Tribunal in O.A. No. 691/2017 on 19.08.2019 and the time limit for compliance thereof, has expired quite some time back and that the present Original Petition has been filed before this Court on 13.01.2021 and that this Court may extent the time limit for compliance of the directions in Ext.P4 order. There does not appear to be any serious objection on the part of the original applicant to the said submission made by the learned Senior Government Pleader. 12. Taking into account the various aspects of the matter, it is ordered that the time limit for compliance of the impugned directions issued by the Tribunal in Ext.P4 final order dated 19.08.2019 in O.A. No. 691/2017, will stand extended by a further period of two months from the date of receipt of a certified copy of this judgment. The learned counsel for the original applicant will ensure that a certified copy of this judgment is forwarded to both the petitioners in this O.P. by registered speed post with acknowledgment due. 13. The learned counsel for the original applicant will ensure that a certified copy of this judgment is forwarded to both the petitioners in this O.P. by registered speed post with acknowledgment due. 13. With these observations and directions, the above Original Petition will stand dismissed.