Asaletha.R vs Cochin University Of Science And ...
2021 Latest Caselaw 3434 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE MR. JUSTICE AMIT RAWAL

     MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

                       WP(C).No.35984 OF 2018(W)


PETITIONER/S:

                ASALETHA.R
                AGED 51 YEARS
                W/O LATE SRI.B.B. GIREESH, ASSOCIATE PROFESSOR,
                DIVISION OF APPLIED SCIENCES, COCHIN UNIVERSITY
                COLLEGE OF ENGINEERING, KUTTANAD, RESIDING AT
                THONIPPURAKKAL, CHINGAVANAM PO, KOTTAYAM- 686 531

                BY ADVS.
                SRI.M.R.HARIRAJ
                SRI.K.RAJAGOPAL
                SMT.L.LAKSHMI OMANAKUTTAN

RESPONDENT/S:

      1         COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY
                REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY P.O.
                KALAMASSERY- 682 022

      2         VICE CHANCELLOR,
                COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN
                UNIVERSITY P.O, KALAMASSERY-682022.

      3         STATE OF KERALA,
                REPRESENTED BY THE SECRETARY TO GOVERNMENT OF
                KEARALA,DEPARTMENT OF HIGHER EDUCATION ,SECRETARIAT,
                THIRUVANATHAURAM-695001.

                R1-2 BY SRI.VIPIN D.G., SC, COCHIN UNIVERSITY OF
                SCIENCE AND TECHNOLOGY

OTHER PRESENT:

                GP SRI B HARISH KUMAR

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD             ON
01.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.35984 OF 2018(W)

                                     2



                            JUDGMENT

Dated this the 1st day of February 2021

This is the 2nd round of litigation on behalf of the

petitioner seeking vindication.

2. The petitioner was appointed as Guest Lecturer in

Cochin University of Science and Technology (CUSAT) on

11.7.2003 and was subsequently appointed as Part Time

Lecturer by order dated 1.1.2004. Had been working as

Lecturer in Polymer Chemistry on contract basis in School of

Technology and Applied Sciences under Mahatma Gandhi

University with effect from 21.5.1996 to 11.1.2004. Against

the grievance of not treating the period of contract rendered

by her for the purpose of promotion preferred a writ petition

W.P.(C) No. 23918 of 2016. Respondents herein and therein

contested that contract appointments were not made after

systematic and impartial selection procedure as in regular

appointments and therefore the service contract could not be

reckoned. Considering the rival contention, this Court vide

judgment dated 23.1.2018 allowed the writ petition and

directed the respondents to reckon the entire period of WP(C).No.35984 OF 2018(W)

contract service rendered by the petitioner, Ext.P13.

3. Respondent University, in purported compliance of

the directions, passed an order dated 9.4.2018, Ext.P14 and

granted the benefit in the following manner:

"After examining the matter in detail, sanction is accorded by the Vice Chancellor as follows, subject to reporting to the Academic Council and to the syndicate:

1. For advancing the date of placement or Dr Asaletha R. as Lecturer (Senior Scale) to 12.01.2004 (Date of joining) from 12.01.2005, in compliance with the judgment read as (1) above,

2. For advancing the date of placement of the teacher as Assistant Professor with AGP of Rs.8000 to 12.01.2009 from 12.01.2010.

3. For advancing the date of placement of the teacher as Associate Professor to 12.01.2012 from 12.01.2013."

4. It has been challenged on the premise that

respondents have not taken the period rendered by the

petitioner with effect from 1996 to 11.1.2004, University has

been adopting pick and choose policy as evidenced from

orders Exts.P17 and P18, whereby the similarly situated

persons rendered contract service in a college affiliated with

other the University had given the benefit of advancement on

completion of nine(9) years in view of the order dated

6.12.2006, Ext.P15. Clause 6.1.10, is an order of WP(C).No.35984 OF 2018(W)

Government of Kerala dealing with revision of scale of pay of

teachers covered under AICTE scheme in Engineering

Colleges/Universities. Had the aforementioned period been

considered, reckoning of qualification for promotion would

have been from the date and entitled to appointment as

Lecturer Senior Scale on 12.1.2004 and on completion of

requisite service of 9 years and Ph.D degree ie., on

21.5.2005, entitled to promotion as Reader/Lecturer

(Selection Grade). A reader is to be re-designated as

Assistant Professor in the pay band of 36400-67000 with

AGP of 8000 with effect from 1.1.2006. On completion of

three years as Assistant Professor in AGP 8000, the

petitioner ought to have been appointed as Associate

Professor with effect from 21.5.2008 ie., completion of three

years, as per para 6.1.12 of the order dated 7.12.2010.

5. An Associate Professor is placed in AGP 9000, and

a person with three years of experience as Associate

Professor in that level shall be re-designated as Professor.

As per 6.1.15, the person having Ph.D Degree in the cadre

of Assistant Professor is eligible to be reckoned as

experience at the level of Associate Professor. Since the WP(C).No.35984 OF 2018(W)

petitioner acquired Ph.D from 1997 onwards, his entire

service as Assistant Professor is liable to be reckoned as

experience at the level of Associate Professor and thus

entitled to be re-designated as Professor on 21.5.2008 itself.

6. Per contra, Sri.Vipin D.G, learned standing counsel

for the University opposed the aforementioned

prayer/countered the argument on the premise that on strict

compliance of direction of this Court, Ext.P14 order has

been observed which is self explanatory and in consonance

with AICTE scheme 2006 though the petitioner was liable to

be granted after rendering the period enumerated in clause

6.1.3, 6.1.7 and 6.1.10. There is no ambiguity in giving the

benefits as per the relevant clause. Order dated 6.12.2006,

Ext.P15 only pertains to advancement of promotion as reader

on completion of nine(9) years total service as Lecturer in

the University concerned ie., CUSAT and not other

University. Earlier regularization in view of the judgment,

Ext.P13 has been corrected vide order Ext.P14. No willful

defiance is evident.

7. I have heard the learned counsel for the parties

and appraised the paper book. In order to deal with the WP(C).No.35984 OF 2018(W)

rival contention of the parties, it would be expedient to

extract operative part of the order dated 23.1.2018, Ext.P13

as well as experience certificate Ext.P4.

Ext.P13, judgment:

"In the above view of the matter, the insistence by the University that only three years of contract service rendered by the petitioner is liable to be reckoned as qualifying service is completely unsustainable. In the result, the impugned orders are set aside. There will be a direction to the respondents to reckon the entire period of contract service rendered by the petitioner, as evidenced by Exhibit P4, as qualifying service for the purpose of promotion. Revised orders shall be rendered by the respondent University within a period of two months from the date of receipt of a copy of this judgment."

Ext.P4, Experience certificate

'This is to certify that Dr. Asaletha R was a Lecturer in Polymer Chemistry on contract basis in the School of Technology and Applied Sciences from 21.5.1996 to 11.1.2004.'

8. On perusal of the above, read with the benefits

accorded to the petitioner extracted above, enunciated from

Ext.P14 reveals that the period of initial appointment has

been treated as 12.1.2004 ie, from the date of joining. There

is specific averment in paragraph 20 and 21 of the writ

petition, whereby reference has been given of certain cases

of giving advance promotion as Lecturer Senior

Scale/Reader by applying the aforementioned order in WP(C).No.35984 OF 2018(W)

counting the service rendered by them in different

universities. The aforementioned assertions have not been

denied on perusal of the counter. Even the order Exts.P17,

18 have been attached; one of the orders for relevancy is

extracted herein below.

'Dr.A. Mujeeb, Reader, Division of Applied Science and Humanities, Cochin University College of Engineering Kuttanadu has requested vide paper read as (1) above to re- designate him as Associate Professor under the provisions of the G.O, read as paper (2) above. The teacher has joined University Service as Lecturer in Physics in the Division of Applied Science and Humanities, Cochin University College of Engineering Kuttanadu on 07.03.2003) on regular basis. Prior to his joining this service, Dr. A. Mujeeb was working as Lecturer in Department of Physics, MES College of Engineering, Kuttipuram from 28.11.1994 to 03.09.2002 and in Muslim Association College of Engineering, Thiruvananthapuram as Senior Lecturer from 04.09.2002 to 06.03.2003. Considering his prior service, he was promoted as Lecturer (Senior Scale) with effect from 07.03.2003 and as Reader with effect from 28.11.2004 (Ten years' service from 28.11.1994).

As per the Clause 6.1.10 GO(P) 389/10/H.Edn. dated, 07.12.2010 Incumbent Assistant Professors and Lecturers (Selection Grade) who had not completed three years in the Pay Scale of 12000-18300 on 01.01.2006 shall be placed at the appropriate stage in the Pay Band of 15600-39100 with AGP of 8000 till they complete 3 years of service in the grade of Assistant Professor/Lecturer (Selection Grade), thereafter shall be placed in the higher Pay Band of 37400- 67000 and accordingly designated as Associate Professor.

Accordingly Dr.A.Mujeeb can be re-designated as Associate Professor with effect from 28.11.2007 with Scale of Pay of 37400-67000 with AGP 9000.

Considering the above, the Pro-Vice-Chancellor in-charge of Vice-Chancellor has accorded sanction to re-designate Dr.AMujeeb, Reader, Division of Applied Science and Humanities, Cochin University College of Engineering WP(C).No.35984 OF 2018(W)

Kuttanadu as Associate Professor with effect from 28.11.2007 in the Pay Band of 37400-67000 with AGP of Rs.9000, subject to reporting to Academic Council and Syndicate.

The Finance Section will fix the pay of the teacher after observing necessary rules and formalities in this regard.'

9. This Court specifically confronted with the learned

standing counsel representing the University on adoption of

pick and choose policy and the reasoning for not granting the

benefits of 1996, contractual period rendered by the

petitioner in some other college, affiliated with different

universities. But no categoric answer or reasoning has been

assigned much less even the order of this Court Ext.P13,

specifically laid down to accord benefit of contract service in

Ext.P4 ie., from 21.5.1996 to 11.1.2004. But vide Ext.P14,

the aforementioned benefit has not been granted. The

authorities have adopted a disparaged behavior towards the

petitioner.

The grievance of the petitioner of not having accorded

the benefit is fully justified. Accordingly, the impugned

order Ext.P14 is modified. Writ petition is allowed.

Respondents are directed to give the benefit to the petitioner

treating his appointment from 21.5.1996 to 11.1.2004 and WP(C).No.35984 OF 2018(W)

giving advance promotion as Reader which was re-

designated as Assistant Professor in the pay scale of 36400-

67000 with AGP 8000 with effect from 1.1.2006 and on

completion of three years as Assistant Professor in AGP of

8000, as Associate Professor with effect from 21.5.2008 as

per para 6.1.12 of Government order dated 7.12.2010 and on

placement of Associate Professor in AGP of 9000, with three

years of experience, which was re-designated as Professor as

per 6.1.15 being a holder of Ph.D degree. Let this exercise

be undertaken within a period of one month from the date of

receipt of a copy of this judgment.

Sd/-

                                          AMIT RAWAL

   sab                                       JUDGE
 WP(C).No.35984 OF 2018(W)




                              APPENDIX
   PETITIONER'S/S EXHIBITS:

   EXHIBIT P1          TRUE COPY OF JUDGMENT DATED 5.3.2003 IN
                       OP 2488/2003.

   EXHIBIT P2          TRUE COPY OF ORDER AD.D3/2488/03/OP
                       DATED 11.7.2003.

   EXHIBIT P3          TRUE COPY OF ORDER DATED
                       AD.D3/2488/03/OP DATED 1.1.2004.

   EXHIBIT P4          TRUE COPY OF EXPERIENCE CERTIFICATE

ISSUED BY THE REGISTRAR , MG UNIVERSITY.

EXHIBIT P5 TRUE COPY OF ORDER NO.RC .AD.D3/2488/03 DATED 17.3.2005 ISSUED BY THE FIRST RESPONDENT.

EXHIBIT P6 TRUE COPY OF GO MAS 53/99/H.EDN DATED 5.6.1999 ISSUED BY THE THIRD RESPONDENT.

   EXHIBIT P7          TRUE COPY OF ORDER DATED
                       RC.AD.F1/2488/03 DATED 17.12.2008.

   EXHIBIT P8          TRUE COPY OF GO RT.1568/2013/H.EDN DATED
                       24.7.2013.

   EXHIBIT P9          TRUE COPY OF AD.F1/2488/2003 DATED
                       27.8.2014.

   EXHIBIT P10         TRUE COPY OF ORDER NO.AD.F1/2488/2003
                       DATED 22.1.2016 ISSUED FOR THE FIRST
                       RESPONDENT.

   EXHIBIT P11         TRUE COPY OF JUDGMENT DATED 7.9.2015 IN

WPC.NO. 25442/2009 ON THE FILES OF THIS HONOURABLE COURT.

EXHIBIT P12 TRUE COPY OF ORDER NO.AD.F2/7348/CAS CELL/2014-15 DATED 13.4.2016.

EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 23.1.2018 IN WPC.NO. 23918 /16 IN THE FILES OF THIS HONOURABLE COURT.

   EXHIBIT P14         TRUE COPY OF THE ORDER
                       NO.AD.F1/2488/2003 DATED 9.4.2018.
 WP(C).No.35984 OF 2018(W)



   EXHIBIT P15         TRUE COPY OF THE ORDER NO.AD.D2/31258/85
                       VI DATED 6.12.2006.

   EXHIBIT P16         TRUE COPY OF THE MINUTES OF THE

SYNDICATE SUBCOMMITTEE DATED 28.12.2013.

EXHIBIT P17 TRUE COPY OF THE ORDER NO.AD.F1/14591/2003 DATED 24.6.2014.

EXHIBIT P18 TRUE COPY OF THE ORDER NO.AD.F1/66/98/24 DATED 19.8.2015.

EXHIBIT P19 TRUE COPY OF ORDER NO.AD.F1/19920/2007 DATED 9.11.2015.

EXHIBIT P20 TRUE COPY OF ORDER NO.AD.F1/66/98(10) DATED 22.12.2015.

EXHIBIT P21 TRUE COPY OF FO(P) 389/10/H.EDN DATED 7.12.2010.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1 A TRUE COPY OF THE G.O.(MS.) NO-

72/11/H.EDN DATED 31.5.2011