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2021 DIGILAW 876 (KER)

State Of Kerala v. S. Devaki Antharjanam

2021-09-27

A.BADHARUDEEN, ALEXANDER THOMAS

body2021
JUDGMENT : ALEXANDER THOMAS, J. Aggrieved by the non-promotion of R-1 herein, to the post of Principal of Government colleges as well as the promotion of her admitted juniors in the feeder category post of Lecturer (Selection Grade), R-1 had filed Writ Petition, as W.P.(C).No.30813/2007 before this Court on 11.10.2007. After the establishment of the Kerala Administrative Tribunal in accordance with the provisions contained in the Administrative Tribunals Act, 1985, the said writ proceedings were transferred to the Tribunal, which has been numbered as Transferred Application, TA No.6735/2012. 2. The prayers in Annexure-1 Transferred Application, T.A No.6735/2012 [WP(C) No.30813/2011], are as follows [see page No.26 of the paper book of the O.P] : “i) issue a writ of certiorari of (sic) any other appropriate writ, order or direction calling for the records leading to Exts.P5, P6, P7 and P9 and quash them to the extent they supersede the petitioner in the matter of promotion to the post of Principal by promoting the petitioner's juniors, respondents 5 to 7 before she is promoted to the said post. ii) Declare that the petitioner is entitled to promotion as Principal with retrospective effect from the dates on which the respondents 5 and 6 have been promoted to that post as per Ext.P6. iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 4 to promote the petitioner as Principal with retrospective effect from the dates on which the respondents 5 and 6 have been promoted to that post as per Ext.P6. iv) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 4 to revise Ext.P5 select list by including the petitioner therein above respondents 5 to 7 and grant all consequential benefits. and v) grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case including the cost of this Writ Petition.” 3. and v) grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case including the cost of this Writ Petition.” 3. The Tribunal after hearing both sides, has rendered the impugned Annexure-VII final order dated 20.08.2019 in T.A No. 6735/2012, with the clear finding that the non-promotion of the applicant and the consequential promotion given in favour of the contesting respondents to the post of Principal, is illegal & ultra vires and that, since the applicant and the contesting respondents in the T.A have all retired from service, there is no necessity to interfere with the promotion orders given in favour of the contesting respondents in the T.A and that, the impugned Ext.P-9 order dated 30.08.2007 issued by the Director of Collegiate Education, rejecting the plea of the petitioner in the T.A. for promotion as Principal, considering her seniority in the feeder category post of Lecturer (Selection Grade)/ Reader, has been quashed and R2 & R3 in the T.A (competent authority of the Government in the Higher Education Department & the Director of Collegiate Education), have been directed to grant notional promotion to the applicant, in accordance with Rule 28 (b)(i)(14) of KS&SSR Part-II with effect from the date on which contesting respondent No.5 in the T.A has been promoted to the post of Principal and orders in that regard have been directed to be passed within three months and that, on receipt of such order, the applicant will be entitled for re-fixation of pay and consequential revision of pensionary benefits shall be disbursed to her immediately thereafter, etc. 4. It is aggrieved by the abovesaid final verdict of the Tribunal at Annexure-VII rendered on 20.08.2019, that the petitioners herein (State of Kerala, the Director of Collegiate Education, etc.) have preferred the present O.P before this Court under Articles 226 & 227 of the Constitution of India, with the following prayers [see page No.10 of the paper book of the O.P] : “.......... to set aside Annexure -VII order in T.A.No.6735/12 on the files of the Kerala Administrative Tribunal, Additional Bench, Ernakulam by allowing this original Petition.” 5. to set aside Annexure -VII order in T.A.No.6735/12 on the files of the Kerala Administrative Tribunal, Additional Bench, Ernakulam by allowing this original Petition.” 5. Heard Sri.B.Unnikrishna Kaimal, learned Senior Government Pleader appearing for the petitioners in the O.P/R1 to R4 in the T.A and Sri.Pirappancode V.A Sudheer, learned counsel appearing for R1 herein/applicant in the T.A. Though notices in the O.P to contesting respondents R2 to R4/respondent Nos.5 to 7 in the T.A, had been duly served on them through special messenger, the said parties have not entered appearance. 6. Reference to the factual details in this case is necessary. The applicant had entered service as Junior Lecturer (Sanskrit-Vedanta) in Government colleges under the department of Collegiate Education on 23.03.1983 pursuant to the advice memo dated 8.03.1983 issued by the Kerala Public Service Commission and appointment order dated 18.03.1983 was issued by the appointing authority. Thereafter, she was promoted as Lecturer (Senior Scale) w.e.f 25.07.1989 and she had also acquired Ph.D degree. Thereupon, she has been promoted as Lecturer (Selection Grade) w.e.f 25.07.1995 as per Ext.P-3 order. There is no dispute that the placement as Lecturer (Selection Grade) was pursuant to the convening of the screening/selection Committee, as envisaged in the University Grants Commission Scheme and the special rules governing the field. The regular placement of the applicant as Lecturer (Selection Grade) was re-designated as “Reader” by Ext.P-3 order dated 15.12.2001 and the regular placement as Reader was with effect from 25.07.1998. 7. As per Ext.P-4 special rules published in the Gazette dated 08.08.1994, Category No.4 post of Lecturer (Senior Scale) is to be filled up by placement from amongst Lecturers, who have completed 8 years' service after regular appointment, provided that one year/ three years' reduction shall be allowable to those who possess M.Phil or Ph.D degree respectively, etc. Category No.3 post of Lecturer (Selection Grade) is to be filled up from among those incumbents, who have completed eight years' service as Lecturers (Senior Scale), provided that the requirement of three years of service shall not be insisted if the total teaching service as Lecturer is not less than 16 years and provided further that, in the case of Lecturer (Senior Scale), who acquires M.Phil or Ph.D degree, will be allowed relaxation of one year and three years respectively for placement as Lecturer (Selection Grade), etc. Note 8(5) [given on page 41 of the paper book of the O.P] clearly mandates that appointment of the category of Principal shall be made from a common seniority list of Readers and Lecturers (Selection Grade). Annexure-VIII special rules published in the Gazette dated 21.03.1994 [produced along with affidavit dated 16.07.2021 filed by the 3rd petitioner in the O.P] also contains broadly similar provisions. 8. Class IV thereof deals with Sanskrit colleges and category No.1 thereunder is the post of Principal, wherein it is clearly mandated that the said post of Principal is to be filled up by appointment from the category of Reader and Lecturer (Selection Grade) [see internal page 3 of Annexure-VIII]. Note (4) appended under the four category of posts mentioned in Class IV Sanskrit Colleges [see internal page No.21 of Annexure-VIII] clearly stipulates that promotion/ placement to the post of Reader/Lecturer (Selection Grade) under Class I, Clause II, Clause III & Class IV shall be made through a process of selection by a screening/Selection Committee constituted by the Government, in accordance with the guidelines laid down by the UGC from time to time. Rule 9(5) of Annexure-VIII [see internal page 23 thereof] mandates that appointment to the category of Principal shall be made from a common seniority list of Readers and Lecturers (Selection Grade). 9. It is common ground that the contesting respondents were granted appointments and advice memos for selection and appointment to the entry level post of Junior Lecturer much before that in the case of the applicant. However, since the applicant had secured Ph.D degree, she could get promotion/placement as Lecturer (Selection Grade) by getting three years' relaxation and it is on this account, that he has secured promotion/placement as Lecturer (Selection Grade)/Reader before such promotion to those posts in the case of the contesting respondents. There is no dispute that though the applicant was junior to the contesting respondents in the feeder category post of Junior Lecturer/Lecturer, she was promoted/placed as Lecturer (Selection Grade)/ Reader much before such placement/ promotion was given in favour of the contesting respondents. 10. Since the promotion to the post of Principal is on the basis of common seniority list in the feeder source of Lecturer (Selection Grade)/Reader, the applicant was entitled to be placed as senior to the contesting respondents in such common seniority list. 10. Since the promotion to the post of Principal is on the basis of common seniority list in the feeder source of Lecturer (Selection Grade)/Reader, the applicant was entitled to be placed as senior to the contesting respondents in such common seniority list. The dates of initial PSC advice, date of initial appointment and date of placement as Lecturer (Selection Grade), etc. are given in Ext.P-7 [see page 47 of the OP as well as Ext. R-7(g)]. While so, the Department had considered the promotion of incumbents to the post of Principal and had issued Ext.P-7 notification as per G.O(P).No.55/2006/H.Edn. dated 4.4.2006, whereby contesting respondents 5 to 7 in the TA have been promoted to the post of Principal of Government Sanskrit Colleges for the select list year 2006 and promotion orders have been given in their favour and thus, the applicant was superseded for promotion to the post of Principal. The main ground to justify the non-promotion and supersession of the applicant and the consequential promotion given in favour of the contesting respondents, has been stated in Anx.II counter affidavit dated 22.2.2008 filed on behalf of R-3 in the T.A. (Director of Collegiate Education). The main contention taken therein is to the effect that the post of Lecturer (Selection Grade) and Reader is not a promotion post and it is only placement in a higher grade in the same category and that there is no change of duty consequent to placement and that the applicant being a Ph.D. holder, had secured 3 years' relaxation and that it is on this account, that she secured placement as Lecturer (Selection Grade) ahead of the contesting respondents. Further it is stated that as per Ext.P-4 Special Rules, only Selection Grade Lecturers and Readers are eligible to be included in the seniority list. But it is clearly admitted therein that the seniority list is based on the date of effective advice of the Kerala Public Service Commission as envisaged in Rule 27(c) KS&SSR Part II. Further it is stated that as per Ext.P-4 Special Rules, only Selection Grade Lecturers and Readers are eligible to be included in the seniority list. But it is clearly admitted therein that the seniority list is based on the date of effective advice of the Kerala Public Service Commission as envisaged in Rule 27(c) KS&SSR Part II. So it is candidly admitted by the respondents in the TA that though the promotion to the post of Principal is from amongst the feeder source of Lecturer (Selection Grade)/Reader as mandated in Ext.P-4 and Anx.VIII Special Rules, they had prepared a seniority list of the incumbents, who are placed as Lecturer (Selection Grade)/Reader, but seniority therein has been arranged not on the basis of the appointment to the feeder source of Lecturer (Selection Grade), but on the basis of the date of effective date of advice of the PSC issued to the incumbents concerned in the entry level post of Junior Lecturer/Lecturer. It is claimed that Ext.P-7 is the integrated seniority list of Lecturers (Selection Grade) in Sanskrit colleges for the period from 14.3.1990 to 1.1.2002 and therein contesting respondents, B.Satheenthran, K.P.Prasanna and P.Laila (who are the 3 beneficiaries of the impugned Ext.P-5 select list notification) are placed as serial Nos.3, 6a and 8 therein and applicant is placed as serial No.16 therein. A mere reading of Ext.P-7 integrated seniority list would make it clear that though it is styled as integrated seniority list in the seniority list of Lecturer (Selection Grade) of Sanskrit Government colleges, the seniority therein has been arranged only on the basis of the date of effective advice of PSC issued to the incumbents concerned to the entry level post of junior Lecturer/Lecturer. Ext.P-7 would make it clear that contesting respondents have been promoted/placed as Lecturer (Selection Grade) much after the applicant has been so appointed as Lecturer (Selection Grade). Ext.P-7 would further show that the applicant has been appointed as Lecturer (Selection Grade) w.e.f. 25.7.1995, whereas the contesting respondents have been placed as Lecturer (Selection Grade) only on 26.12.1995, 5.6.1997, etc. 11. Ext.P-7 would make it clear that contesting respondents have been promoted/placed as Lecturer (Selection Grade) much after the applicant has been so appointed as Lecturer (Selection Grade). Ext.P-7 would further show that the applicant has been appointed as Lecturer (Selection Grade) w.e.f. 25.7.1995, whereas the contesting respondents have been placed as Lecturer (Selection Grade) only on 26.12.1995, 5.6.1997, etc. 11. A Full Bench of this Court in the decision in Suresh v. Manager, SNM College [ 2003 (3) KLT 839 (FB)] has considered the question of appointment to the post of Principal and held categorically that a person could be appointed as Principal only if he had first class Master's degree or second class in Master's degree with not less than 55% marks and only senior incumbents in the post of Lecturers (Selection Grade) or Readers in the college are entitled to be considered for promotion to the post of Principal. Further a Division Bench of this Court in the decision in Janardhanan Pillai v. Travancore Devaswom Board [ 2005 (4) KLT 522 (DB)] has considered the similar issue and held in clear and unambiguous terms that promotion to the post of Principal has to be made from the category of Reader and Lecturer (Selection Grade) and that this is mandated from the provisions contained in the UGC scheme dated 16.10.1991, which was then in vogue. It was categorically held therein that when that feeder category for promotion to the post of Principal is Lecturer (Selection Grade), then the seniority in entry level post cannot be considered. It was held therein that earlier acquisition of additional qualification like PhD, which counts for relaxation and earlier promotion as Lecturer (Selection Grade) would count for further promotion as Principal as well. It is also common ground that the abovesaid provisions contained in the Special Rules are on the basis of the provisions contained in the University Grants Commission, which has been adopted by the State Government. It is also common ground that the abovesaid provisions contained in the Special Rules are on the basis of the provisions contained in the University Grants Commission, which has been adopted by the State Government. It has been held by a Full Bench of this Court in the decision in Radhakrishnan Pillai v. Travancore Devaswom Board [ 2016 (2) KLT 245 (FB)] that irrespective as to whether or not the State University Acts enacted with reference to the Legislative Entries contained in Entry 25 of List 3 of the VII Schedule of the Constitution of India or the Statutes framed under such enactments are amended in line with the UGC Regulations, in view of the adoption of the UGC Scheme by the State of Kerala, the State Universities and the affiliated colleges in the State of Kerala are bound to comply with the UGC Regulations, and that the principles earlier laid down by the Division Bench of this Court in S.N. College v. N. Raveendran [ 2001 (3) KLT 938 ] will stand overruled, etc. In the light of the above aspects, there cannot be any disputes that the applicant is senior to the contesting respondents in the feeder source of Lecturer (Selection Grade)/Reader and promotion to the post of Principal could have been made only on the basis of the seniority list in the category of Lecturer (Selection Grade)/Reader and not with reference to the seniority in the entry level post of Junior Lecturer/ Lecturer reckoned on the basis of the date of effective advice made by the Public Service Commission as per Rule 27(c) of KS & SSR Part-II. The Tribunal has rightly held that seniority only in the category of Lecturer (Selection Grade)/Reader scale should have been taken into account for effectuating consideration of promotion to the higher post of Principal of Government Colleges, going by the provisions contained in the Special Rules at Ext.P4 & Anx.VIII and also in view of the dictum laid down in the aforecited judgments of the Division Bench and Full Bench, etc. There is no dispute that though the applicant is junior to the contesting respondents in the entry level post in Junior Lecturer/Lecturer going by the date of effective advice of the PSC, in view of her acquisition of Ph.D Degree, she secured 3 years' relaxation and it is on this basis that the Selection Committee/Screening Committee has found that the applicant is entitled for appointment as Lecturer (Selection Grade) and as Reader, on a date which is much before the corresponding dates given in favour of the contesting respondents as mentioned above. The Tribunal could have made interference with even the promotion orders granted in favour of the contesting respondents. However, taking note of the fact that both applicant and contesting respondents have retired from service at the time of rendering of the final order in this case, the Tribunal has very carefully moulded the reliefs by ordering that the applicant shall be granted notional promotion to the post of Principal of Government Sanskrit Colleges, as envisaged in Rule 28(b)(i)(14) of KS & SSR Part-II, from on the date on which R5 in the T.A. has been promoted to the post of Principal and that the applicant is also entitled for re-fixation of pay and consequential revision of the pensionary benefits, etc. within the time line ordered therein. We are of the view that the Tribunal was fully right in arriving at the said conclusions and no interference is called for. 12. Sri.B. Unnikrishna Kaimal, learned Senior Government Pleader appearing for the petitioners would point out that Ext.P7 is the integrated seniority list of Lecturer (Selection Grade) in Sanskrit for the period from 14.03.1990 to 01.10.2002 and that therein the contesting respondents are placed as seniors to the applicant, who is assigned only Sl.No.16 thereof. That, Ext.P7 has been duly published and circulated and the applicant had never challenged the same in the manner known to law and that Rule 27(c) of KS&SSR Part-II mandates that challenge to seniority list will have to be made within 6 months, etc. and that therefore, the applicant is estopped from challenging Ext.P7 seniority list, which is in the category of Lecturer (Selection Grade) and hence interference is called for with the verdict of the Tribunal. 13. We have heard both sides on this aspect. and that therefore, the applicant is estopped from challenging Ext.P7 seniority list, which is in the category of Lecturer (Selection Grade) and hence interference is called for with the verdict of the Tribunal. 13. We have heard both sides on this aspect. A mere perusal of Ext.P7 integrated seniority list would show that though the same is styled as a seniority list of Lecturer (Selection Grade), the seniority is ordered therein not on the basis of the date of appointment in the post of Lecturer (Selection Grade)/Reader, but only on the basis of the initial appointment in the entry level post of Junior Lecturer/ Lecturer, reckoning the date of effective advice made by the Public Service Commission as per Rule 27(c) of KS & SSR Part-II. What is mandated in terms of Ext.P4 Special Rules and Anx.VIII Special Rules is that promotion to the post of Principal of Government College is to be made on the basis of a common seniority list of Lecturer (Selection Grade). Merely because Ext.P7/Anx.R7(g) is styled as an integrated seniority list of Lecturer (Selection Grade), will not necessarily make it a seniority list in the category of Lecturer (Selection Grade). The respondents in the T.A. have clearly admitted in their aforementioned counter affidavit at Anx.II that they have prepared Ext.P7 by considering all the incumbents, who have been appointed to the post of Lecturer (Selection Grade) and then seniority has been assigned on the basis of the date of effective advice of the PSC made to the entry level post of Junior Lecturer/Lecturer. The justification offered for the same is that appointment to the post of Lecturer (Selection Grade)/Reader is only a placement and cannot be seen as a promotion and therefore, seniority list in the post of Lecturer (Selection Grade) will have to be arranged only on the basis of seniority in the entry level post of Junior Lecturer/Lecturer based on the effective advice of the PSC, etc. We are unable to agree with the said submissions of the petitioners in the O.P. for reasons more than one. The matter in issue has already been settled in favour of the applicant, going by the rulings of this Court as in Janardhana Pillai's case supra [ 2005 (4) KLT 522 (DB)] and Suresh's case (supra) [ 2003 (3) KLT 839 (FB)]. The matter in issue has already been settled in favour of the applicant, going by the rulings of this Court as in Janardhana Pillai's case supra [ 2005 (4) KLT 522 (DB)] and Suresh's case (supra) [ 2003 (3) KLT 839 (FB)]. The Division Bench has clearly held in Janardhana Pillai's case supra that the seniority in the entry level post of Lecturer/Junior Lecturer cannot be considered for promotion to the post of Principal and what is to be reckoned is the seniority based on the length of service in the feeder source of Lecturer (Selection Grade), etc. It was also held therein that earlier acquisition of additional qualification like Ph.D by a junior hand will also count for relaxation and earlier promotion as Lecturer (Selection Grade) which would also in turn count for further promotion as Principal, etc. Hence, it is only to be held that Ext.P7/Anx.R7(g) is only a seniority list arranged in the order of seniority in the entry level post of Lecturer/Junior Lecturer and in pith and substance it is not a seniority list in the category of Lecturer (Selection Grade)/ Reader counted from the date of appointment as Lecturer (Selection Grade), etc. Since the seniority position in Ext.P7 in the entry level post of Lecturer/Junior Lecturer has been correctly assigned, there is no necessity for the applicant to challenge Ext.P7 at that point of time. The respondents in the T.A. were under the legal obligation to prepare a separate list of Lecturer (Selection Grade) showing their relative inter se seniority on the basis of their appointment in the category of Lecturer (Selection Grade)/Reader, as the case may be. The same has not been done and therefore, the contention that the applicant has not challenged Ext.P7 seniority list within 6 months as stipulated in Rule 27B of KS&SSR Part-II, is not relevant and germane in the instant case and the said argument will stand repelled. The same has not been done and therefore, the contention that the applicant has not challenged Ext.P7 seniority list within 6 months as stipulated in Rule 27B of KS&SSR Part-II, is not relevant and germane in the instant case and the said argument will stand repelled. Rule 27B of Part II of KS&SSR reads as follows: “Rule 27 B. In case of disputes regarding seniority and matters connected with it by reason of any order of Government or any order of an authority subordinate to Government, representations for reconsideration of such order shall be submitted to Government by the aggrieved person within a period of six months from the date of receipt of the order, or the date of publication of the order in the Kerala Gazette, whichever is later.” 14. Yet another contention raised by the petitioners is that the dictum laid down by the Division Bench of this Court in Janardhana Pillai's case supra [ 2005 (4) KLT 522 (DB)] is not applicable in this case, inasmuch as the said case was dealing with promotion to the post of Principals in private aided colleges affiliated to University. We are not in a position to appreciate the said argument of the petitioners. A mere perusal of the relevant provisions in Ext.P4 Special Rules as well as in Anx.VIII Special Rules would make it clear like the day light that promotion to the post of Principal of Government Sanskrit Colleges, etc., will have to be made on the basis of a common seniority list in the feeder source of Lecturer (Selection Grade)/Reader. 15. Therefore, the dictum laid down by the Division Bench of this Court in Janardhana Pillai's case supra [ 2005 (4) KLT 522 (DB)] will apply with equal vigour in this case. Even if it is assumed that the provisions in Ext.P4/Anx.VIII Special Rules had not been made, still there would not have been any difference, inasmuch as the Full Bench has subsequently held in Radhakrishna Pillai's case (supra) [ 2016 (2) KLT 245 (FB) that even if statutory provisions are not amended by the State in tune with the UGS scheme, still provisions in the UGC Regulations will have to be adhered to by the authorities concerned while making to the post of Principals of Colleges, which are covered by the UGC Scheme. There is no dispute that the UGC scheme covers not only private aided colleges, but also Government colleges. Hence the said argument of the petitioners also will stand overruled. In the light of the above aspects, no interference is called for with the well considered verdict of the Tribunal at Ext.P4. 16. Before parting with this case, it is stated that from a reading of the counter affidavit filed by the Director of Collegiate Education, before the Tribunal, it appears that the stand taken by the State Government and the Director of Collegiate Education is that promotion to the post of Principal is to be considered on the basis of seniority of incumbents counted on the basis of their date of effective advice in the entry level post of Lecturer/Junior lecturer, etc. The said stand is not tenable and sustainable in view of the abovesaid aspects. Hence, the competent authority of the State Government in the Higher Education department and the Director of Collegiate Education will ensure that the abovesaid provisions contained in the Special Rules, are strictly followed so that promotion to the post of Principal, as above is effectuated on the basis of a common seniority list in the feeder source of Lecturer (Selection Grade) etc. and not on the basis of the seniority in the entry level post of Lecturer/Junior Lecturer, reckoned on the basis of date of effective advice made by the PSC as per Rule 27(c) of KS & SSR Part-II, in case the aforesaid provisions as in Ext.P-4 Special Rules and Anx.VIII Special Rules are still in vogue. 17. Further, taking note of the long pendency of this case it is ordered that the petitioners in the O.P. will comply with the directions and orders of the Tribunal at Ext.P4, within 2 months from the date of receipt of a copy of this judgment. The learned counsel for the 1st respondent herein may forward copies of this judgment to petitioners 2 to 4 herein by speed post with acknowledgment due for necessary information and immediate further action. With these observations and directions, the above original petition will stand dismissed.