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2025 DIGILAW 382 (KER)

SAMUEL MATHEW v. STATE OF KERALA

2025-02-25

VIJU ABRAHAM

body2025
JUDGMENT : Since common issue is raised in both these writ petitions they are heard and disposed of together by a common judgment, in which WP(C) No.10699 of 2020 is treated as the leading case. 2. The breif facts necessary for disposal of the writ petition are as follows:- Petitioner joined service as lecturer in physics in UC College, Aluva in 1988. On 01.01.2009 the petitioner became eligible to be appointed and designated as professor according to paragraph 6.1.13 of Ext.P1 Government Order regarding the implementation of the UGC scheme. The relevant paragraph 6.1.13 reads as follows:- “Associate Professor completing three years of service in the A.G.P. of Rs.9,000/- and possessing a Ph.D. degree in the relevant discipline shall be eligible to be appointed and designated as Professor, subject to other conditions of academic performance as laid down by the U.G.C. and if any, by the University. No teacher other than those with a Ph.D. shall be promoted, appointed or designated as Professor. The pay band of the post of Professors shall be Rs.37,400-67,000 with AGP of Rs.10,000/-” Based on the same it is the contention of the petitioner that the petitioner satisfied the above condition in Ext.P1 on 01.01.2009 itself. Thereupon petitioner submitted a performa and details for promotion as Professor under UGC Career Advancement Scheme (CAS) as evident from Ext.P2. Ext.P3 curriculum vitae of the petitioner was also submitted. Even after a lapse of two and half years, the 4 th respondent Manager did not care to process the petitioner’s application. Thereupon Ext.P4 request was made before the Manager to which Ext.P5 reply was given by the 4 th respondent Manager stating that the 1 st respondent Government would not take the excess financial liabilities of promoting and designating eligible Associate Professor as Professor. It is for the said reason that the petitioner’s application is not processed and sent to the 2 nd respondent University for approval. 3. Petitioner submits that Ext.P3 reply is given on the basis of Exts.P6 and P7 Government orders. A perusal of Exts.P6 and P7 reveal that the 1 st respondent Government accepts the mandate of UGC regulation 2010 for promotion and designation of eligible Associate Professors as Professors, however the excuse put forward by the 1 st respondent is that they will have to incur a huge burden if the Associate Professors are designated as Professors in private aided colleges. Petitioner also relies on Ext.P8 UGC regulation which also makes it clear that an Associate Professor having three years of completed service shall be eligible to be designated as Professor. Petitioner would further submit that by Ext.P9 order the Government implemented UGC Regulation 2018 strictly in accordance with the standard norms and procedure set out by the UGC Regulation 2018, and pursuant to the said Government order produced as Ext.P9 petitioner applied for designation as Professor and she was desginated as Professor with effect from 18.07.2018 as per Ext.P10 order. 4. Petitioner relies on Ext.P13 judgment of the High Court of Delhi, wherein a direction was issued to promote the petitioners therein who were Associate Professors to the post of Professors with effect from the date of eligibility. Based on the same the case of the petitioner is that she is entitled for promotion as Professor from the date of her eligibility i.e. from 01.01.2009. Petitioner further submits that in the case of a similarly situated Associate Professor, this Court by Ext.P14 judgment in WP(C) No.2688 of 2022 directed the State to consider and take a decision on her claim for promotion under the UGC Regulation 2010 and in compliance of the said direction in Ext.P14 judgment, Ext.P15 order was issued granting promotion to the petitioner therein under UGC Regulation 2010. Petitioner also relies on Ext.P16 communication issued by the University Grants Commission which clarified in no uncertain terms that teachers who fulful the eligibility criterial on or before 31.12.2024 will have a choice for being considered for promotion under either 2010 or 2018 Regulation. Petitioner also relies on Ext.P17 judgment in WA No.1093 of 2021 . But as per the said judgment though relief was granted to the party therein, the Court has also made it clear that the said directions shall not be taken as a precedent in another case. It is also submitted that the petitioner has already retired from service. 5. In WP(C) No. 10799 of 2020 the petitioner joined service as Lecturer on 13.09.1994 in Marthomma College, Thiruvalla, and going by Ext.P1 UGC scheme of 2010 he became eligible for appointment and designated as Professor on 11.09.2010. It is also submitted that the petitioner has already retired from service. 5. In WP(C) No. 10799 of 2020 the petitioner joined service as Lecturer on 13.09.1994 in Marthomma College, Thiruvalla, and going by Ext.P1 UGC scheme of 2010 he became eligible for appointment and designated as Professor on 11.09.2010. Though Ext.P2 application in the prescribed performa and Ext.P3 representation was submitted, no decision has been taken for grant of promotion to the petitioner with effect from 11.09.2010 the date on which she became eligible for grant of promotion as Professor. However, petitioner was designated as Professor based on UGC Regulation 2018 as per Ext.P10 order issued by the 2 nd respondent. 6. The 1 st respondent Director of Collegiate Education has filed a detailed counter afÏdavit, wherein it is contended that the method of appointment to the post of Professor is by merit promotion going by 2010 UGC scheme and the post of Professor has not been created in Arts and Science Colleges, and therefore it is not possible to make retrospective promotion to the post of Professor. 7. The University has also filed a detailed statement, wherein it is submitted that though the Government have issued order dated 13.10.2017 in compliance of the direction to the judgment dated 18.01.2017 in WP(C) No.22083 of 2011 filed by a similarly situated teacher, later the said Government order was cancelled as per Ext.P7 order dated 15.02.2018. Since Government is the ultimate authority and the pay master the University being bound to adhere to direction from the Government in case of financial liability. In view of the above none of the reliefs could be granted to the petitioner. 8. I have considered the rival contentions of both sides. 9. Going by Ext.P1 Government order petitioner is eligible for being appointed and designated as Professor on completion of three years of service and the petitioner in WP(C) No.10699 of 2020 became eligible to become Professor on 01.01.2019, and the petitioner in WP(C) No.10799 of 2020 became eligible for appointment and desginated as Professor on 11.09.2010. In fact the petitioner in WP(C) No.10699 of 2020 was promoted as Professor as per Ext.P10 on 30.05.2022 based on 2018 UGC Regulation and the petitioner in WP(C) No.10799 of 2020 was promoted as per Ext.P8 on 30.12.2021. In fact the petitioner in WP(C) No.10699 of 2020 was promoted as Professor as per Ext.P10 on 30.05.2022 based on 2018 UGC Regulation and the petitioner in WP(C) No.10799 of 2020 was promoted as per Ext.P8 on 30.12.2021. The request of the petitioner in WP(C) No.10699 of 2020 was rejected by Ext.P5 based on Exts.P6 and P7 Government orders. Ext.P6 Government order only says that nearly 1500 to 2000 posts of Professors had to be created if the prayer of the petitioner is to be granted and the same would create huge financial burden to the Government. The High Court of Delhi as per Ext.P13 judgment set aside the order of promotion granted to the petitioners therein to the post of Professor which was made prospectively from 25 th June, 2019 and held that the said promotion shall relate back to the date of eligibility. So going by Ext.P13 judgment the petitioners are entitled for promotion from the date of their eligibility i.e. on 01.01.2019 and 11.01.2010 respectively. 10. Yet another aspect to be considered is that though the Government has taken a stand in Ext.P6 that the relief sought for by the petitioner cannot be granted as it will create serious financial burden to the Government, based on the direction issued by this Court in Ext.P14 judgment to consider the claim of the petitioner therein, Government itself has passed Ext.P15 order dated 14.03.2024 granting the benefit to a similarly situated teacher based on the 2010 UGC Regulation from the date on which the petitioner therein became eligible for promotion. The UGC has also clarified this position as per Ext.P16. Though the stand taken by the Government in Ext.P6 order as well as the counter afÏdavit is that the Professor post is only a placement given to the teacher who qualifies for that post and creation of post of Professor is not necessary for that placement, and if the post of Professor is created it will cause huge financial burden to the Government, but in the case of a similarly situated teacher Government by Ext.P15 order granted the benefit of promotion as per 2010 UGC Regulation from the date on which the said teacher became eligible for promotion as Professor with certain conditions and riders. 11. 11. In view of the stand taken by the Government in Ext.P15 in case of a similarly situated teacher, I am of the opinion that the claim of the petitioners is liable to be reconsidered. If in fact in a similar circumstance, the Government has considered the claim of a similarly situated teacher as per Ext.P15 and if relief has been granted to the said teacher, I am of the view that the Government is bound to take a similar view in the case of the petitioners also. But I am of the opinion that the Government being the ultimate authority and the pay master has to examine as to whether the petitioners are also similarly situated as the petitioner in Ext.P15 Government order, and if the Government finds that they are similarly situated, I find no reason for the Government to take a different view in the case of the petitioners alone. In view of the above, I am of the opinion that the matter requires serious consideration by the Government as the Government is the ultimate authority in such matter and the pay master. 12. Therefore, the above writ petition is disposed of with the following directions:- Both the petitioners shall submit a detailed request in this regard before the 1 st respondent Principal Secretary to Government, Higher Education Department staking a claim for promotion to the post of Professor from the date on which they become eligibile to be appointed and designated as Professor within a period of three weeks from the date of receipt of a copy this judgment. If such request is submitted by the petitioners the 1 st respondent shall consider the same in accordance with law taking into consideration Ext.P13 judgment of the High Court of Delhi, and Ext.P15 order granting relief to a similarly situated teacher. Petitioner shall produce copies of these judgments and any other relevant documents in support of their contentions along with the representation to be filed before the 1st respondent. The 1st respondent shall take appropriate decision in the matter taking into consideration the documents produced by the petitioners after affording an opportunity of being heard to the petitioners, University and any other affected parties. With the above said direction, these writ petitions are disposed of.