Shafi M.N vs State Of Kerala
2022 Latest Caselaw 2823 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
     THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                 TH
WEDNESDAY, THE 16   DAY OF MARCH 2022 / 25TH PHALGUNA, 1943

                  WP(C) NO. 5643 OF 2021

PETITIONER/S:

    1      SHAFI M.N.,
           AGED 30 YEARS
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF ELECTRONICS AND COMMUNICATION ENGINEERING ,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM 691 005

    2      ASIF BASHEER,
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF CIVIL ENGINEERING ,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM 691 005.

    3      SANIA AZEEM,
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF ELECTRONICS AND COMMUNICATION ENGINEERING ,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM 691 005.

    4      RAIZA RASHEED,
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF CHEMICAL ENGINEERING ,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM 691 005.

    5      AHAMMED BILAL A
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF MECHANICAL ENGINEERING ,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM 691 005.

    6      NAUFAN HASHIR,
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF ARCHITECTURE,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM 691 005.

    7      ROMANA MARIYAM RASHEED,
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF CIVIL ENGINEERING ,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM 691 005
 WP(C) NO. 5643 OF 2021

                             2



           .
    8      TINU P SAJU,
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF MECHANICAL ENGINEERING ,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM 691 005.

    9      ATUL M. MADHU,
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF CIVIL ENGINEERING ,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM   691 005
           .
    10     BUSHARA M A.,
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF CIVIL ENGINEERING ,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM   691 005
           .
    11     SAI NIVEDITHA M.G.
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF CIVIL ENGINEERING ,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM   691 005
           .
    12     AL AMEEN A ,
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF CHEMICAL ENGINEERING ,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM   691 005.

    13     MATHEW P ABRAHAM,
           ASSISTANT PROFESSOR ,
           DEPARTMENT OF ELECTRONICS AND COMMUNICATION ENGINEERING ,
           T.K.M. COLLEGE OF ENGINEERING, KOLLAM 691 005.

           BY ADVS.
           P.NANDAKUMAR
           SMT.AMRUTHA SANJEEV
           VIVEK VIJAYAKUMAR
 WP(C) NO. 5643 OF 2021

                             3



RESPONDENT/S:

    1      STATE OF KERALA
           REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY TO
           GOVERNMENT, HIGHER EDUCATION DEPARTMENT,
           GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.

    2      DIRECTOR OF TECHNICAL EDUCATION,
           PADMAVILASOM , FORT P.O.
           THIRUVANANTHAPURAM 695 023.

    3      A.P.J. ABDUL KALAM TECHNOLOGICAL UNIVERSITY,
           C.E. T CAMPUS, THIRUVANANTHAPURAM,695 016,
           REPRESENTED BY ITS REGISTRAR.

    4      T.K.M. COLLEGE OF ENGINEERING,
           KARICODE, PEROOR, KOLLAM 691 005,
           REPRESENTED BY THE CHAIRMAN, GOVERNING BODY.

           BY ADVS.
           GOVERNMENT PLEADER
           SHRI.ELVIN PETER, SC, APJ ABDUL KALAM TECHNOLOGICAL
           UNIVERSITY
           SRI.GEORGE POONTHOTTAM (SR.)
           SMT.NISHA GEORGE

           SMT SURYA BINOY SR GP


     THIS WRIT PETITION     (CIVIL) HAVING COME UP        FOR
ADMISSION ON 16.03.2022,    THE COURT ON THE SAME         DAY
DELIVERED THE FOLLOWING:
     WP(C) NO. 5643 OF 2021

                                          4



                                    JUDGMENT

The petitioners herein are working as Assistant Professors under various

Departments at the TKM College of Engineering, Kollam. They have approached

this Court seeking directions to the 2nd respondent to initiate immediate action to

disburse the pay and allowances due to the petitioners in the post of Assistant

Professors along with arrears and for incidental reliefs.

2. The petitioners contend that they were appointed pursuant to a

selection process conducted by the Staff Selection Committee which included the

nominees of the 2nd respondent. The appointments were duly approved by the

University in the month of January and February 2020. Their grievance is that the

2nd respondent has not initiated any steps to disburse the pay and allowances.

According to the petitioners, as and when the University approves the

appointments, the teachers are entitled to salary with effect from the date of

appointment and the Government is obliged to honour the same. It is contended

that the only reason given in Ext.P24 is that the Government has preferred an SLP

against the judgment in O.P(KAT) No. 236/2020 and orders can be issued only

after disposal of the same.

WP(C) NO. 5643 OF 2021

3. When this Writ Petition had come up for consideration on 13.01.2022,

this Court after hearing the submissions of Sri. P. Nandakumar, the learned counsel

appearing for the petitioners, Sri. George Poonthottam, the learned senior counsel

appearing for the 4th respondent, Smt. Surya Binoy, the learned Senior

Government Pleader and Sri. Elvin Peter, the learned Standing Counsel appearing

for the University had passed the following order:

"Sri. P. Nandakumar, the learned counsel appearing for the petitioners points out that pursuant to the interim order dated 30.03.2021 passed by this Court directing the 2nd respondent to take up and pass orders on Ext.P23, Ext.P24 order was passed on 23.06.2021. In Ext.P24, it has been stated as thus:

"Meanwhile, the Hon'ble High Court of Kerala as per judgment in OP(KAT) Nos.133/2019, 133/2020, 232/2020, 236/2020 and in related cases on 03.12.2020 (filed by the Govt. against the common order dated 05.03.2020 in OA(EKM) No.500/2019 and other connected cases) has held that the qualification of PhD is mandatory for the post of Principals, Professors and Associate Professors (re-designated post of Assistant Professor) w.e.f. 05.03.2010 with direction to Government as follows:

" the exercise of reviewing any provisional promotions granted and issuance of orders regarding regular promotions must be completed within a period of 3 months from the date of receipt of copy of the judgment. Till such time as the exercise is completed 'status quo' on the date of issuance of G.O.(MS) No.71/2019/H.Edn. dated 07.03.2019 shall be maintained and the promotions/reversions ordered therein shall not be implemented."

Based on the legal opinion, it has been decided to file a Special WP(C) NO. 5643 OF 2021

Leave Petition before the Hon'ble Supreme Court on the judgment dated 03.12.2020 in OP(KAT) 236/2020 & other connected cases. The standing Counsel has been instructed to file SLP(C) and the matter is now pending with Hon'ble Supreme Court. Hence, a decision in the matter regarding cadre promotions in Aided Engineering Colleges can be taken only after the outcome of the Special Leave Petition.

2. The learned counsel contends that as mentioned in Ext.P24, Special Leave Petition was filed before the Apex Court and the same was dismissed with clarifications by Ext.P25 order. Relevant portions of Ext.P25 read as follows:

'We are in agreement with the view that the notification dated 18.02.2003 granting seven years to acquire PhD. Degree for the right to hold the post of Associate Professors (re-designated as Assistant Professors) would come to an end in 2010 and thus persons who acquire the PhD. Degree on a subsequent date will only be eligible for consideration from the date when they acquire PhD. Degree.'

3. Immediately thereafter, Ext.P26 communication has been issued by the Director of Technical Education to the Principal, T.K.M College of Engineering which reads as follows:

'Inviting your attention to the reference cited above. The Govt. have asked to take immediate action to recast the promotions of Associate Professors and Professors made in TKM College of Engineering, Kollam as per the AICTE regulations and directions contained in the judgment dated 03.12.2020 in OP(KAT) 133/2019 and connected cases of the Hon'ble High Court and to make sure that the regularisation of 13 Assistant Professors are granted against the resulting vacancies and their pay and allowances are disbursed. In this circumstance, I am to direct you to submit proposals as directed by the Government.'

4. The learned counsel contends that the limited request at this particular stage is for a direction to the Principal to act in terms of Ext.P26. WP(C) NO. 5643 OF 2021

5. The learned counsel for the college submits that contempt proceedings pursuant to the judgment dated 03.12.2020 in OP (KAT) No. 236/2020 is pending and unless the said proceeding is concluded, it would not be proper to finalize the proceedings. The learned counsel seeks an adjournment."

4. A memo has been filed by the counsel appearing for the 4th respondent

on 25.2.2022 wherein it is stated thus:

"The 3rd respondent University has asked the college to submit the details of the faculties to enable them to carry out the recasting in accordance with the directions in the judgment in OP (KAT) No. 260 of 2020 and connected matters. The college has accordingly furnished the required details as sought for by the University. "

5. Sri. Elvin Peter, the learned Standing Counsel appearing for the

University submits that the University had received the details and particulars from

the College and that University shall consider the request in accordance with law

and orders shall be passed within a period of one week from the date of receipt of

a copy of the judgment.

6. In view of the submission, the following directions are issued.

a) The 3rd respondent shall consider the data submitted by the College for reviewing and recasting the promotions in accordance with the directions in the judgment in OP (KAT) WP(C) NO. 5643 OF 2021

No. 260 of 2020 and connected matters and pass appropriate orders in accordance with the law, expeditiously, in any event, within a period of one week from the date of production of a copy of the judgment.

b) On receipt of the orders from the University, the 4th respondent shall forward the same to the 2nd respondent who shall consider the same in tune with the directions in O.P.(KAT) No. 260/2020 and pass final orders within a period of eight weeks from the date of receipt of the orders from the college.

c) Needless to say, if the orders issued by the University favours the petitioners, the 2nd respondent shall initiate expeditious action to disburse the pay and allowances due to the petitioners within a further period of three weeks.

This writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE

avs WP(C) NO. 5643 OF 2021

APPENDIX OF WP(C) 5643/2021

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF LETTER DATED 22.03.2018 OF THE 2ND RESPONDENT TO THE 4TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE STAFF SELECTION COMMITTEE OF THE RESPONDENT DATED 16.07.2018.

EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 1ST PETITIONER BY THE 4TH RESPONDENT DATED 01.04.2019.

EXHIBIT P4 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 2ND PETITIONER BY THE 4TH RESPONDENT DATED 01.04.2019.

EXHIBIT P5 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 3RD PETITIONER BY THE 4TH RESPONDENT DATED 01.04.2019.

EXHIBIT P6 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 4TH PETITIONER BY THE 4TH RESPONDENT DATED 01.04.2019.

EXHIBIT P7 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 5TH PETITIONER BY THE 4TH RESPONDENT DATED 01.04.2019.

EXHIBIT P8 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 6TH PETITIONER BY THE 4TH RESPONDENT DATED 16.04.2020.

EXHIBIT P9 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 7TH PETITIONER BY THE 4TH RESPONDENT DATED 01.04.2019.

WP(C) NO. 5643 OF 2021

EXHIBIT P10 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 8TH PETITIONER BY THE 4TH RESPONDENT DATED 01.04.2019.

EXHIBIT P11 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 9TH PETITIONER BY THE 4TH RESPONDENT DATED 01.04.2019.

EXHIBIT P12 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 10TH PETITIONER BY THE 4TH RESPONDENT DATED 01.04.2019.

EXHIBIT P13 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 11TH PETITIONER BY THE 4TH RESPONDENT DATED 01.04.2019.

EXHIBIT P14 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 12TH PETITIONER BY THE 4TH RESPONDENT DATED 13.07.2019.

EXHIBIT P15 TRUE COPY OF THE APPOINTMENT ORDER ISSUED TO THE 13TH PETITIONER BY THE 4TH RESPONDENT DATED 13.07.2019.

EXHIBIT P16 TRUE COPY OF ORDER DATED 07.12.2019 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P17 TRUE COPY OF ORDER DATED 24.1.2020 APPROVING THE APPOINTMENTS OF PETITIONERS 5 AND 8 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P18 TRUE COPY OF ORDER DATED 11.02.2020 APPROVING THE APPOINTMENTS OF THE 13TH PETITIONER ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P19 TRUE COPY OF ORDER DATED 20.02.2020 APPROVING THE APPOINTMENTS OF PETITIONERS 1 AND 3 ISSUED BY THE 3RD RESPONDENT.

WP(C) NO. 5643 OF 2021

EXHIBIT P20 TRUE COPY OF ORDER DATED 20.02.2020 APPROVING THE APPOINTMENTS OF PETITIONERS 2,7,9,10 AND 11 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P21 TRUE COPY OF ORDER DATED 20.02.2020 APPROVING THE APPOINTMENTS OF PETITIONERS 4 AND 12 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P22 TRUE COPY OF ORDER DATED 03.05.2020 APPROVING THE APPOINTMENTS OF THE 6TH PETITIONER ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P23 TRUE COPY OF THE LETTER DATED 30.01.2201 SENT BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT.

Exhibit P25 TRUE COPY OF ORDER DATED 02.02.2021 IN SLP(C) NO.1917/2021 AND CONNECTED CASES.

Exhibit P26 TRUE COPY OF LETTER DATED 15.11.2021 SENT BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT.

RESPONDENT EXHIBITS

EXHIBIT R2(a) TRUE COPY OF THE GOVERNMENT LETTER J3/116/2020/H.Edn. DATED 27.08.2021

EXHIBIT R2(b) TRUE COPY OF THE GOVERNMENT ORDER G.O(MS) NO.

346/2021/H.Edn. DATED 17.08.2021.

EXHIBIT R2(c) TRUE COPY OF LETTER NO. DP3/10184/17/DTE DATED 7.9.2021