Kerala High Court
K.G.Thankachan vs State Of Kerala on 14 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
OP(KAT) NO. 368 OF 2020
AGAINST THE ORDER IN OA (EKM) 827/2016 DATED 21-05-2020 OF
THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
PETITIONERS/APPLICANTS NOS.1,3 TO 5 :
1 K.G.THANKACHAN, AGED 55 YEARS,
S/O. GOVINDAN, KARUKAYIL, VILLOONNI P.O,
ARPOOKKARA, KOTTAYAM,PIN-686 008, NOW WORKING AS
ENGINEERING INSTRUCTOR, GOVERNMENT TECHNICAL HIGH
SCHOOL, PALA, KOTTAYAM DISTRICT.
2 K.S. CHANDRAN, AGED 52 YEARS,
S/O. SANKARAN NAIR, ATHIRA NIVAS,
KURUPPANKULANGARA P.O, CHERTHALA, ALAPPUZHA,
PIN-688 539, NOW WORKING AS ENGINEERING
INSTRUCTOR, GOVERNMENT TECHNICAL HIGH SCHOOL,
KAVALAM, ALAPPUZHA DISTRICT
3 SIVARAMAN VALIYAKKAL, AGED 54 YEARS,
S/O. V.S. VELAYUDHAN, ELAVALLY SOUTH P.O,
PIN 680511, NOW WORKING AS WORKSHIP FOREMAN,
GOVERNMENT TECHNICAL HIGH SCHOOL, THRISSUR.
4 V.P. SUNNY, AGED 51 YEARS,
S/O. V.P. PAUL, VELUKARAN HOUSE, KUTTUR P.O,
THRISSUR 680 013, NOW WORKING AS ENGINEERING
INSTRUCTOR, GOVERNMENT TECHNICAL HIGH SCHOOL,
THRISSUR, PIN-680 020
BY ADV SMT.I.SHEELA DEVI.
O.P (KAT) No.368 of 2020 2
RESPONDENTS/RESPONDENTS :
1 STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DIRECTOR OF TECHNICAL EDUCATION,
THIRUVANANTHAPURAM-695 023.
BY SRI.B.UNNIKRISHNA KAIMAL, GOVERNMENT PLEADER.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P (KAT) No.368 of 2020 3
ALEXANDER THOMAS & A.BADHARUDEEN, J J.
------------------------------------------------
O.P (KAT) No.368 of 2020
[Arising out of the impugned final order dated 21-05-2020 in O.A (EKM) No.827 of 2016
on the file of KAT, Tvm.]
----------------------------------------------------
Dated this the 14th day of July, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayers in the aforecaptioned O.P(KAT) filed under
Articles 226 & 227 of the Constitution of India are as follows { See
page 10 of the paper book of OP(KAT) }:
" .......... to stay the operation of the order in O.A(EKM) No.827/
2016 dated 21-05-2020 of the Kerala Administrative Tribunal,
Thiruvananthapuram, pending final disposal of the above
O.P(KAT) in the interest of justice."
2. Heard Smt.I.Sheela Devi, the learned counsel
appearing for the petitioners herein/original applicants 1 & 3 to 5 in
the O.A and Sri.B.Unnikrishna Kaimal, the learned Government
Pleader appearing for the respondents in the O.P/respondents in
the O.A.
3. The prayers in the instant Ext.P1 O.A (Ekm)
No.827 of 2016 filed by the petitioners herein are as follows {See page
No.23 of the paper book of O.P(KAT)} :
"i) Issue an order directing the respondents to grant the scale of pay of
Assistant Lecturer to the applicants since they are completed 10 years
of service during the year 1999 even though the said post was abolished
with effect from 5/2000;
ii) To protect the pay scale which is applicable to the post of Assistant
Lecturer in the scale of pay of Rs.6,675-10,550 since they have qualified
for promotion to the post of Assistant Lecturer at the time of abolition
of the said post;
iii) Issue such other reliefs as this Hon'ble Tribunal may deem fit and
proper in the facts and circumstances of the case; and
iv) Award the cost of the applicant in these proceedings."
4. The Tribunal after hearing both sides has rendered
the impugned Ext.P3 final order dated 21-5-2020 in O.A (EKM)
No.827 of 2016 by holding that since the entitlement of the
applicants for grant of higher grade on completion of ten years
service occurred only in July 1999 and as the post of Assistant
Lecturer, which is a promotion post already stood abolished w.e.f
21-12-1998, the applicants cannot be given the said benefit of higher
grade. Further, the Tribunal has also held that the reliance placed by
the original applicants on Annexure A7 judgment dated 23-12-2009
of the Division Bench of this Court in Writ Appeal No.678 of 2009 is
misplaced inasmuch as in the said case the entitlement of the
appellants therein for the same higher grade occurred on
26-10-1998, whereas the post of Assistant Lecturer was abolished
subsequently on 21-12-2019 and that therefore, it is only on account
of the fact that at the time of their entitlement, the post of Assistant
Lecturer was not abolished that the Division Bench of this Court has
granted relief in that case. It is this final order rendered by the
Tribunal at Ext.P3 that is under challenge in this original petition.
5. The facts in this case are not in serious dispute. All
the original applicants had joined service some time in July 1989 as
Workshop Instructor and the next promotion in such case is the
post of Assistant Lecturer. The incumbents are eligible for grant of
time bound higher grade in the scale of pay of Rs.6675-10,550,
which is the scale of pay attached to the above said post of Assistant
Lecturer on the incumbents completing ten years of service. The
said benefit is given to incumbents who complete ten years of
service and who are otherwise qualified for promotion to the post of
Assistant Lecturer and who have to stagnate in the feeder category
on account of non promotion due to non availability of sufficient
vacancies. Accordingly, it was the case of the original applicants that
the post of Assistant Lecturers was the promotion post for
Workshop Instructor and as per the terms of Annexure A1 order
dated 24-6-1996, all of them were qualified for promotion and
hence they were also eligible and entitled for grant of time bound
higher grade on completion of ten years' service to those of the said
incumbents, who do not get actual promotion to the next higher
category post of Assistant Lecturers.
6. As per Annexure A2 G.O.(Ms) No.158/98/H.Edn
dated 21-12-1998, the competent authority of the State Government
in the Higher Education Department had inter alia ordered that the
post of Assistant Lecturers will stand abolished, but that those
incumbents, who have already been regularly promoted as Assistant
Lecturer can continue to hold those posts until their retirement,
resignation or next promotion, etc. This aspect of the matter
regarding the abolition of the post of Assistant Lecturer w.e.f
21-12-1998 on the basis of the above said G.O dated 21-12-1998, is
also referred to in Annexure A7 judgment dated 23-12-2009
rendered by the Division Bench of this Court in W.A Nos.678 of
2009 & 708 of 2009. It is also a common ground that all the
applicants have completed ten years of service in the feeder category
post of Workshop Instructors only some time in July 1999. By that
time, the post of Assistant Lecturer stood already abolished w.e.f
21-12-1998. Hence, the respondents were not in a position to grant
time bound higher grade to the present applicants, as their
entitlement for the said higher grade occurred after the abolition of
the post. Since the next promotion post itself has been abolished,
there is no question of getting any right for getting time bound
higher grade. Time bound higher grade can be claimed in cases
where the incumbent is otherwise qualified and eligible for
promotion to the post of Assistant Lecturer and those incumbents
who do not get the actual opportunity to be regularly promoted to
the post of Assistant Lecturer on account of lack of vacancies, could
claim the benefit of time bound higher grade on completion of ten
years service, so that they could be conferred higher grade benefit in
the scale of pay of Rs.6,675-10,550 attached to the post of Assistant
Lecturer. But where the said post carrying the higher scale is itself
abolished, the departmental authorities may not be in a position to
grant the benefit of time bound higher grade, as in the instant case.
It is in the light of the above aspects that the Tribunal has dismissed
the O.A. We find no infirmity in the said considered views rendered
by the Tribunal.
7. A contention has been raised by the Original
applicants/petitioners herein stating that reading of Annexure A2
G.O dated 21-12-1998 would indicate that all the post of Assistant
Lecturers were not abolished in one go w.e.f 21-12-1998 and it was
abolished in a piecemeal manner, etc. After hearing both sides and
on perusal of Annexure A2 G.O dated 21-12-1998, it can be seen that
the Government has ordered that the unoccupied 209 posts of
Assistant Lecturer will stand abolished with effect from the date of
said G.O. However, in the last paragraph of Annexure A2 G.O, it is
stated that those incumbents who have already been regularly
promoted as Assistant Lecturers can continue to hold the said post
till their resignation, retirement or next promotion, etc. The said
provision made in Annexure A2 G.O is only to protect the
incumbents who have already been regularly promoted to the post
of Assistant Lecturer. That does not take away the effect of abolition
of the unoccupied posts of Assistant Lecturer w.e.f 21-12-1998.
Certain other contentions have also been raised by the original
applicants stating that the Public Service Commission has even
thereafter proceeded with the selection process, etc. On the basis of
pleadings, the Tribunal has found that the said action of the Public
Service Commission was on the basis of earlier requisition given by
the department prior to the issuance of Annexure A2 G.O dated
21-12-1998 and that therefore those aspects cannot be pressed into
service for claiming the benefit of time bound higher grade. We are
in agreement with the said views of the Tribunal overruling the said
contentions of the original applicants.
8. In the light of these aspects, we are not in a position to
hold that the verdict of the Tribunal would deserve interdiction at
our hands. Smt.I.Sheela Devi, the learned counsel appearing for the
petitioners would submit that, in view of the serious anomaly faced
by the present petitioners, the Government should at least grant pay
protection to them, etc. The learned Government Pleader would
submit that he has no instructions on this aspect as there are no
pleadings in that regard in the original application. We need not get
into those aspects and we make it clear that if the petitioners have
any such legitimate and genuine grievances, it is for them to agitate
the same by filing due representations before the competent
authority of the State Government in the Higher Education
Department, which may be forwarded through the Head of the
Department concerned (Director of Technical Education). If any
such representation is filed, it is for the competent authority of the
State Government in the Higher Education Department to examine
those grievances of the petitioners and consider the same and
decision be taken thereon by the Government after affording a
reasonable opportunity to be heard by the petitioners without much
delay preferably within 3 months, at any rate, within 4 months
from the date of receipt of such representation along with a copy of
this judgment. No other orders or directions are called for. The
orders and directions of the Tribunal at Ext.P3 will stand modified
as above.
With these observations and directions, the above original
petition is finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A. BADHARUDEEN, JUDGE
amk
APPENDIX OF OP(KAT) 368/2020 :
PETITIONERS' ANNEXURES :
ANNEXURE A1 TRUE COPY OF THE ORDER NO. 24208/PRU.
1/96/FIN. DATED 24.06.1996 ISSUED BY
THE 1ST RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE ORDER G.O(MS) NO.
158/98/H.EDN. DATED 21.12.1998 ISSUED
BY THE 1ST RESPONDENT.
ANNEXURE A3 TRUE COPY OF THE GAZETTE NOTIFICATION
DATED 10.08.1999 PUBLISHED BY THE
PUBLIC SERVICE COMMISSION.
ANNEXURE A4 TRUE COPY OF THE ORDER NO. EC3-52217/95
DATED 09.02.1998 ISSUED BY THE
DIRECTORATE OF TECHNICAL EDUCATION,
THIRUVANANTHAPURAM.
ANNEXURE A4(a) TRUE COPY OF THE ORDER NO.
EC4/8199/99/DTE DATED 02.06.1999 ISSUED
BY DIRECTORATE OF TECHNICAL EDUCATION,
THIRUVANANTHAPURAM.
ANNEXURE A4(b) TRUE COPY OF ORDER NO. E2/1058/99 DATED
09.12.1999 ISSUED BY THE CHAIRMAN,
GOVERNING BODY, S.S.M. POLYTECHNIC,
TIRUR.
ANNEXURE A4(c) TRUE COPY OF THE ORDER NO.
DPI/970(2)/2000 DATED 17.09.2001 ISSUED
BY REGIONAL DIRECTORATE OF TECHNICAL
EDUCATION, KOTHAMANGALAM.
ANNEXURE A5 TRUE COPY OF THE CIRCULAR
NO.EC3/3564/99 DATED 28.09.1999 ISSUED
BY THE DIRECTORATE OF TECHNICAL
EDUCATION, THIRUVANANTHAPURAM.
ANNEXURE A6 TRUE COPY OF THE ORDER G.O(RT) NO.
926/04/H.EDN. DATED 12.07.2004 ISSUED
BY THE 1ST RESPONDENT.
ANNEXURE A7 TRUE COPY OF THE REPRESENTATION DATED
20.12.2015 SUBMITTED BY THE 3RD
APPLICANT TO THE 1ST RESPONDENT.
EXHIBIT P1 TRUE COPY OF O.A.(EKM) NO. 827/2016
FILED BY PETITIONERS BEFORE THE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED
28.09.2017 FILED BY THE 1ST RESPONDENT
IN NO. 827/2016 KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 21.05.2020
IN O.A. (EKM) NO. 827/2016 OF THE
HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT W.A. NO.
678/2009 DATED 23.12.2009 OF THE
HON'BLE HIGH COURT OF KERALA.
