Mesiah Das J vs State Of Kerala
2021 Latest Caselaw 7177 Ker

WP(C).No.28779/2020

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               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

    TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

                       WP(C).No.28779 OF 2020(V)

PETITIONER:

      1        MESIAH DAS J.,
               AGED 55 YEARS
               JOINT REGISTRAR, APJ ABDUL KALAM TECHNOLOGICAL
               UNIVERSITY CET CAMPUS P.O., SREEKARIYAM,
               THIRUVANANTHAPURAM-695 016

      2        PRAVEEN.R.,
               SECTION OFFICER, APJ ABDUL KALAM TECHNOLOGICAL
               UNIVERSITY CET CAMPUS P.O., SREEKARIYAM,
               THIRUVANANTHAPURAM-695 016
               BY ADVS.
               DR.K.P.SATHEESAN (SR.)
               SRI.P.MOHANDAS (ERNAKULAM)
               SRI.K.SUDHINKUMAR
               SRI.S.K.ADHITHYAN
               SRI.SABU PULLAN
               SRI.GOKUL D. SUDHAKARAN


RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER
               EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695 001

      2        APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY,
               REPRESENTED BY ITS REGISTRAR,CET CAMPUS P.O.,
               SREEKARIYAM, THIRUVANANTHAPURAM-695 016

      3        THE SYNDICATE,
               REPRESENTED BY THE EX OFFICO SECRETARY (REGISTRAR,
               APJ ABDUL KALAM TECHNOLOGICAL
               UNIVERSITY CET CAMPUS P.O.,
               SREEKARIYAM,
               THIRUVANANTHAPURAM-695 016.
 WP(C).No.28779/2020

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      4      THE REGISTRAR,
             APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY CET CAMPUS
             P.O., SREEKARIYAM, THIRUVANANTHAPURAM-695 016

             GOVERNMENT PLEADER SMT.NISHA BOSE
             R2-4 BY ADV. SRI.ELVIN PETER P.J.


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-
02-2021, THE COURT ON 02-03-2021 DELIVERED THE FOLLOWING:
 WP(C).No.28779/2020

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                                JUDGMENT

Dated this the 2nd day of March 2021

The prayers in this writ petition are as follows :-

"i) to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext. P8 resolution passed by the 3rd respondent as Item No. S-016-003 at its Sixteenth meeting held on 16-11-2020 as patently erroneous and illegal;

ii) to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext. P9 order No. KTU/AR(ADMN)/2169/2017 dated 15-12-2020 issued by the 4" respondent as it is discriminatory and unsustainable;

iii) to issue a Writ of Mandamus or order or direction to respondents 3 and 4 to treat the promotion granted to the petitioner as regular and fix their seniority accordingly retaining their original seniority in the parent University.

iv) to issue a Writ of Mandamus or order or direction to the respondents 3 and 4 to invite fresh options in respect of the vacancies which arises after the commencement of the statute on 7-8-2020 and also only in respect of the vacancies excluding the vacancies meant for promotion of the persons who exercised option on the basis of the Act;

v) to declare that Chapter Ill Statute XXVIII of the First Statute of the APJ Abdul Kalam Technological University as ultra vires of the Act and hence unconstitutional;

vi) to declare that the petitioners are entitled to reckon their seniority from the date of exercising option and also for regular promotion and consequential benefits as provided under the Act;"

2. Heard the learned Senior Counsel appearing for the

petitioners and the learned standing counsel appearing for the

respondent-University.

WP(C).No.28779/2020

3. It is submitted that the 1st petitioner is presently working as

Joint Registrar and the 2nd petitioner as Section Officer in the 2 nd

respondent University. They were originally employees of the MG

University and had exercised option for appointment in the 2 nd

respondent University as per the provisions of Section 7 of the A.P.J.

Abdul Kalam Technological University Act, 2015 (for short 'the Act').

4. The 1st petitioner was working as Assistant Registrar when

he submitted options for coming over to the 2 nd respondent

University. He was thereafter promoted as Deputy Registrar in the

2nd respondent University by Ext.P5 order. It is submitted that the

said promotion was subsequently ratified by Ext.P6. Thereafter, he

was again promoted as Joint Registrar by Ext.P7 order dated

06.12.2019. He is due to retire on 28.02.2021. It is stated that the

1st petitioner's probation in the post of Joint Registrar was not

declared and the eligible increments were not given to him. In the

meanwhile, it is contended that steps have been taken to invite

fresh options from employees of other Universities included in the

schedule to the Act and the 1st petitioner has been informed that the

promotions made in the 2nd respondent University will be treated as

provisional and the seniority of employees appointed by way of

option will be fixed only after fresh options are received from

eligible persons.

WP(C).No.28779/2020

5. It is contended that in the case of similarly situated

employees, the probation in the post of Joint Registrar was

declared and all due benefits had been granted, as is evident

from Ext.P10. It is submitted that Ext.P11 First Statutes have

now been promulgated and that fresh options are being invited to

the posts physically occupied by the petitioners by which their

seniority and promotion prospects are being prejudicially

affected. The learned counsel for the petitioners would contend

that the six months period from the date of issuance of the First

Statutes is long past and that thereafter, no steps can be initiated

to induct persons through fresh options in the light of the

provisions of the First Statutes.

6. A counter affidavit has been placed on record on behalf of

respondents 2 to 4. It is stated by the learned standing counsel

that Section 7(3) of the Act, which is the substantial provision

with regard to regular appointments in the University, specifies

for appointments by option subject to the terms and conditions as

may be prescribed. It is stated that Section 2(z) defines

'prescribed' as 'prescribed by Statutes, Ordinances and

Regulations made under the Act'. It is stated that the First

Statutes have been published on 05.08.2020. Statute 13 of Part II

lays down that within six months from the date of coming into WP(C).No.28779/2020

force of the First Statutes, non teaching staff of the Universities

who are included in the schedule to the Act shall be given a right

to be appointed in the 2nd respondent University on the basis of

their option. It is stated that after coming into force of the First

Statutes, the University is bound to issue a notification giving

opportunity to non teaching staff in the other Universities to

come over. Statute 16 of the First Statutes specifically lays down

the method of fixing the seniority of employees who have been

appointed on the basis of option.

7. It is contended by the learned standing counsel for the

University that Section 7(5) was only a provision which provided

for filling up the necessary posts in the University by exercising

an option and that the appointments as well as seniority of the

employees who exercised the option was specifically subject to

the prescriptions of the First Statutes as well as the Ordinances.

It is further contended that no posts of Section Officers are

included in the notification inviting options and therefore, the 2 nd

petitioner can have no grievance with regard to the options. It is

submitted that all promotions made after acceptance of options

and coming over to the 2nd respondent University would

necessarily be provisional in nature and subject to review in WP(C).No.28779/2020

terms of the Statutes which are the prescriptions as provided

under Section 7(3).

8. It is further submitted that no adverse orders have been

passed as against the petitioners as of now and since the

petitioners have not challenged the First Statutes, they can have

no contentions as against the invitation of options as well. It is

contended that Statute 16 of Part IV specifically provides the

criteria for deciding seniority of persons, who are already

appointed by option and that the steps taken by the University

are in strict conformity with the First Statutes. It is further

contended that University will call for and consider the options

from other employees as well, only in strict conformity with the

provisions of the Statutes. The learned standing counsel also

places reliance on a decision of this Court in W.P.(C).No.4319 of

2020 wherein by judgment dated 25.01.2021, the issue of fixation

of seniority as per Statute 16 of Part IV vis a vis Section 7 of the

Act had been considered. The learned standing counsel would

also contend that this writ petition is premature and that the

apprehensions of the petitioners are unfounded in the facts of the

case.

WP(C).No.28779/2020

9. Having considered the contentions advanced, I

immediately notice that the 2 nd petitioner does not appear to have

any apprehension that the post which he is holding in the 2 nd

respondent University on the basis of his option is being notified

for options. To that limited extent, the 2 nd petitioner cannot

maintain a challenge to options being called for from employees

of other Universities to posts other than the one which he holds

substantially. The contention apparently is that the fresh options

being granted to employees of other Universities is likely to affect

the rights of the petitioners herein. I find that the petitioners'

options would remain unaffected by the fresh options being called

for from other employees of the Universities. However, the

promotions secured by the petitioners after coming over to the

2nd respondent would now be regulated by the provisions in the

First Statutes. A rough translation of Statute 16 of the First

Statutes would read as follows:

         "REGARDING         SENIORITY          IN    APJ       ABDUL          KALAM
         TECHNOLOGICAL UNIVERSITY: The                     criteria   for    deciding

seniority of persons who already got appointment by option to various categories in APJ Abdul Kalam Technological University, before the coming into force of this statute or within 6 months of from the date of enactment of this statute, will be on the basis of their seniority in their parent universities in similar categories.

Illustration : The date of seniority,in the seniority list for the WP(C).No.28779/2020

category of assistants, of a person 'X' in'A' University is 01.01.2019. The date of seniority, in the seniority list for the category of assistants, of a person 'Y' in 'B' University is 02.01.2019. If both of them get appointed, via option, to the vacancies in the post of assistant, A will be considered senior than B. If the seniority dates of both the persons are the same, the conditions in KS &SSR relating to similar situation will be made applicable."

No challenge has been raised by the petitioners to the First

Statutes or any provisions therein. This Court in Ext.R2(f)

judgment has held that a challenge against Ext.P8 appointment

order dated 12.02.2020 was bound to fail on account of the fact

that no challenge had been mounted against the First Statutes.

10. Having considered the contentions advanced on either

side, I am of the opinion that the provisions of Section 7 of the

Act specify that the appointments made by option are subject to

the terms and conditions as may be prescribed. The subsequent

prescription by the First Statutes permits the acceptance of fresh

options as also the determination of seniority in the order of

seniority of first appointment in the respective parent University.

It is only when the exercise of fixation of seniority is complete

that the question whether there is any deviation from the

Statutes at the hands of the respondents can be considered.

11. Having considered the contentions advanced, I am of the

opinion that the challenge against Exts.P8 and P9 cannot be

sustained. The declaration sought for in the writ petition also WP(C).No.28779/2020

cannot be issued by this Court in the light of the specific

provisions of the First Statutes. The writ petition, therefore, fails

and the same is, accordingly, dismissed.

sd/-

ANU SIVARAMAN, JUDGE

sj WP(C).No.28779/2020

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER G.O(MS) NO.1/2016/H.EDN DATED 1.1.2016 ISSUED BY THE 1ST RESPONDENT

EXHIBIT P2 TRUE COPY OF THE GOVERNMENT ORDER G.O(MS) NO.174/2016/H.EDN DATED 6.8..2016

EXHIBIT P3 TRUE COPY OF THE NOTIFICATION NO.KTU/A/333/2016 DATED 11.08.2016 ISSUED BY THE 4TH RESPONDENT TO THE REGISTRARS OF ALL THE OTHER UNIVERSITIES

EXHIBIT P4 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 19.07.2017

EXHIBIT P5 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 21.02.2018

EXHIBIT P6 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 10.04.2019

EXHIBIT P7 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 6.12.2019

EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF SIXTEENTH MEETING OF THE SYNDICATE CONTAINING RESOLUTION OF THE 3RD RESPONDENT HELD ON 16.11.2020 AS ITEMS NO.S-016-003

EXHIBIT P9 TRUE COPY OF THE ORDER NO.KTU/AR(ADMN) 2169/2017 DATED 15.12.2020 ISSUED BY THE 4TH RESPONDENT

EXHIBIT P10 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 16.06.2020

EXHIBIT P11 TRUE COPY OF THE RELEVANT PAGES OF CHAPTER VII PART II STATUTE 13 OF THE APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY FIRST STATUE RESPONDENT'S EXHIBITS EXHIBIT R2(A) TRUE RELEVANT EXTRACT OF THE STATUTE 13 OF PART II OF THE FIRST STATUTE EXHIBIT R2(B) TRUE ENGLISH TRANSLATION OF EXT.R2(A) WP(C).No.28779/2020

EXHIBIT R2(C) TRUE COPY OF THE STATUE 16 CHAPTER 4 OF THE APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY FIRST STATUTE EXHIBIT R2(D) TRUE ENGLISH TRANSLATION OF EXT.R2(C)

TRUE COPY

PS TO JUDGE