Asha T.Varkey vs State Of Kerala
2022 Latest Caselaw 5159 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
    THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
 TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944

                   WP(C) NO. 10 OF 2022

PETITIONER:

 ASHA T.VARKEY
 AGED 55 YEARS
 D/O LATE T A VARKEY,
 WORKING AS SECTION OFFICER,
 APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY,
 CET CAMPUS, THIRUVANANTHAPURAM-695016.

 BY ADVS.
 P.B.KRISHNAN
 P.B.SUBRAMANYAN
 SABU GEORGE
 MANU VYASAN PETER
 ABRAHAM BABU KALLIVAYALIL


RESPONDENT/S:

  1   STATE OF KERALA
      REPRESENTED BY THE SECRETARY TO GOVERNMENT,
      DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT,
      THIRUVANANTHAPURAM-695001.

  2   APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY
      REPRESENTED BY ITS REGISTRAR, CET CAMPUS,
      SREEKARYAM, ALATHARA,
      THIRUVANANTHAPURAM-695016.

  3   REGISTRAR
      APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, CET
      CAMPUS, SREEKARYAM, ALATHARA,
      THIRUVANANTHAPURAM-695016.

  4   MAHATMA GANDHI UNIVERSITY
      REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI
      HILLS, ATHIRAMPUZHA, KOTTAYAM DISTRICT,
      PIN-686560.
 W.P.(C) No.10 of 2022


                              :2:


          BY ADV SHRI.ELVIN PETER, SC, APJ ABDUL KALAM
          TECHNOLOGICAL UNIVERSITY

          SMT SURYA BINOY, SR GOVERNMENT PLEADER



THIS WRIT PETITION (CIVIL) HAVING COME UP FOR HEARDING ON
7.4.2022, THE COURT ON 10.5.2022 DELIVERED THE FOLLOWING:
 W.P.(C) No.10 of 2022


                                    :3:


                                                               "CR"


                             JUDGMENT

The petitioner herein is presently working as a Section

Officer at the APJ Abdul Kalam Technological University (APJ AKTU). It

was while working as a Section Officer in the MG University, that the

petitioner had responded to a call by the Government to exercise her

option and join the new Technological University being set up as per the

APJ Abdul Kalam Technological University Act, 2015 (Act 17 of 2015).

She was appointed on 27.7.2017. Her grievance is that though she has

served the APJ AKTU for more than five years, she still remains as a

Section Officer, while her juniors, who had chosen to remain at the MG

University, either for the reason that they were found not suitable or for

non-exercise of option, have been promoted to higher posts. This

serious injustice has happened due to the failure of the respondents to

notify the Statute, the Ordinance and the University Service immediately

after the setting up of the APJ AKTU. She asserts that after the delayed

notification of the Statute on 5.8.2020, fresh options are being invited

from employees of other Universities. The petitioner states that if such W.P.(C) No.10 of 2022

an event happens, her juniors would be appointed to the higher posts

while the petitioner stagnates in the post of Section Officer as originally

appointed. Highlighting this irregularity and the serious injustice meted

out to the petitioner, she has approached this Court seeking to declare

that the provisions of the Statute notified on 5.8.2020 as ultra vires the

provisions of Act 17 of 2015 and also for incidental reliefs.

2. The contentions of the petitioner as detailed in the petition

are as under:

2.1 The petitioner was initially appointed as University Assistant

Grade-II on 29.6.1992 in the M.G.University. While she was continuing in

the post of Section Officer (HG) in the M.G.University, the AJP AKTU was

formed in terms of Act 17 of 2015. An academic campus with a

minimum of five departments was required for securing University

Status from the UGC. Based on the proposal received from the

Vice-Chancellor of the University, the Government by Ext.P1 order dated

1.1.2016 granted sanction for creating various teaching and

non-teaching posts in the University campus and its headquarters.

2.2 Later, by Ext.P2 order, sanction was accorded to the W.P.(C) No.10 of 2022

Registrar, APJ AKTU to invite option from the employees of the

Universities mentioned in the schedule of Act 17 of 2015 for

appointment to the post of Joint Registrar, Deputy Registrar, Assistant

Registrar, Section Officer, Assistants and Clerical Assistants. It was

mentioned in Ext.P2 that for the vacancies arising in future and at the

time of the creation of new posts, appointments shall be made by option

from the existing list. It was also mentioned that once an option is

exercised, the same shall be final.

2.3 On the basis of Exts.P1 and P2, the 3rd respondent issued

Ext.P3 Circular inviting options from the employees of the Universities

mentioned in the schedule of the Act.

2.4 The petitioner and several others, who were working in the

Universities scheduled in the Act, submitted their option to the post of

Section Officer to the Registrar, M.G.University. The Registrar, in turn,

forwarded the list of employees to the Registrar, APJ AKTU.

2.5 The option exercised by the petitioner was accepted and

she was appointed on regular basis as per Ext.P6 order. It was

mentioned in Ext.P6 that the appointment of the petitioner is on regular W.P.(C) No.10 of 2022

basis and that she has to report for duty before the Registrar, APJ AKTU,

after clearing all the liabilities from the parent University. It was also

ordered that the service book/details of service, Provident Fund, Leave

salary and other mandatory deductions/ contributions have to be

forwarded to APJ AKTU as per the Rules.

2.6 In terms of Ext.P6, the petitioner joined duty as Section

Officer in the APJ AKTU on 27.7.2017.

2.7 While calling for options, the APJ AKTU imposed a criterion

that employees of scheduled Universities, who were not left with at least

a minimum of 5 years of service would not be considered. This was

challenged by certain individuals before this Court by filing W.P.(C)

No.25918/2017 contending that their seniority had been overlooked.

2.8 In the meantime, certain individuals were promoted to the

post of Joint Registrar and Deputy Registrars as per Ext.P7 proceedings.

2.9 By Ext.P8 judgment in W.P.(C) No.25918/2017, a learned

Single Judge of this Court upheld the challenge raised by the petitioners

therein and the APJ AKTU was directed to accept the options for

appointment of Section officers on the basis of seniority. As in the W.P.(C) No.10 of 2022

meantime, some of the options had been accepted, it was clarified by

this Court that if any of the contesting respondents had been repatriated

to their parent Universities, they would be granted all service benefits

including leave in the posts held by them and also a continuity of

service. It was made clear that the repatriated persons will not be made

to suffer for the wrong acceptance of the options by the APJ AKTU.

Though the matter was challenged in appeal, the Division Bench refused

to interfere. However, the Division Bench, while disposing of the appeal

by Ext.P10 judgment, ordered that it shall be open to the APJ AKTU to

make appointments to the said post as well.

2.10 In the meantime, the Government issued Ext.P9 order

granting sanction to the APK AJTU to create various categories of posts

of non-teaching staff including 5 posts of Section Officers.

2.11 The petitioner contends that pursuant to the directions

issued by this Court in Ext.P8 and P10 judgments, the list of appointees

was recast.

2.12 When the petitioner realised that serious anomalies would

result as the persons whose options were not accepted initially and who W.P.(C) No.10 of 2022

were continuing in the parent University got promotions to higher posts,

she submitted Ext.P12 representation requesting that the petitioners in

the writ petition be granted appointment only with effect from

3.9.2019, the date on which fresh vacancies were created by the

Government without disturbing the seniority of the Section Officers like

the petitioners who were appointed with effect from 24.7.2017 as per

Ext.P6 order. It is pointed out that if a fresh appointment is made, the

petitioner would be losing her seniority from 24.7.2017 till the date of

the new appointment. It was also pointed out that if the petitioner were

to be repatriated in terms of the order passed by the learned Single

Judge, her seniority benefits and continuity of service shall not suffer.

She requested that her seniority be maintained with all benefits with

effect from 24.7.2017 in the APJ AKTU.

2.13 Immediately thereafter, Ext.P13 order was issued on

12.2.2020 by the 3rd respondent in purported compliance with the

directions issued by this Court. Sri. Najeeb M. (Sl. No. 4) and Smt. Latha

P.S. (Sl.No.5), were juniors to the petitioner in the post of Section

Officers while they were working at the M.G.University. This fact would

be evident from Ext.P26 seniority list wherein the petitioner is included W.P.(C) No.10 of 2022

in Sl. No. 119, Sri. Najeeb M. is Sl. No.134 and Smt. Latha P.S., her Sl.

No. 149. However, since they chose to stay in the M.G.University, they

were promoted to the post of Assistant Registrar whereas the petitioner

who had exercised the option and was appointed on 24.7.2017 remained

as Section Officer in the APJ AKTU.

2.14 By Ext.P13, Sri. Najeeb M., Assistant Registrar,

M.G.University was appointed as Assistant Registrar in the APJ AKTU and

Smt. Latha P.S., Assistant Registrar, M.G.University was appointed as

Assistant Registrar in the APJ AKTU. However, it is mentioned in Ext.P13

that some juniors to the Section Officers who got appointments earlier in

the APJ AKTU and whose appointments were set aside were promoted

to higher posts in the parent University and the juniors so promoted

have been included in Ext.P13 list in higher posts. It was stated that the

seniority and position of those senior Section Officers superseded for the

reason that they remained in the APJ AKTU would be restored as and

when the parent University grants promotion to them.

2.15 When the petitioner noticed that her juniors in service in

the M.G.University had been granted appointment as Assistant W.P.(C) No.10 of 2022

Registrars in APJ AKTU, she submitted Ext.P14 representation on

13.2.2020 requesting the respondents to reckon her seniority in the

M.G.University and to grant promotion as Assistant Registrar in the APJ

AKTU with all privileges in respect of her appointment and seniority.

When the representation did not evoke any response, Ext.P15 was

submitted highlighting all the aspects and requesting that steps be taken

to restore her cadre seniority and position as in the parent University.

2.16 While things stood so, the First Statute of the APJ AKTU

was published on 5.8.2020. The Statute was to provide for the

guidelines governing seniority and service conditions of the staff of the

University. The petitioner contends that clause (13) under Part II of

Chapter VII which provides that the vacancies remaining vacant in the

APJ AKTU shall be filled up within six months from the date of coming

into force of the First Statute by calling for the option is ultra vires

Section 7(5) of Act 17 of 2015 since persons such as the petitioner who

had exercised option under Section 7(5) of the Act cannot be treated as

equal to persons who are exercising option under Section 7(3) of the

Act.

W.P.(C) No.10 of 2022

2.17 In the meantime, the 3rd respondent issued Ext.P16

notification on 28.1.2021 notifying the vacant posts of Joint Registrar,

Deputy Registrar, Assistant Registrar and Clerical Assistant in the APJ

AKTU and options were invited for appointment from the employees as

per the norms and guidelines approved by the Syndicate. Condition Nos.

11, 13 and 14 are of some relevance and are extracted below:

11. Persons already appointed in the APJ Abdul Kalam Technological University through option shall have the right to return to his/her parent University for any purpose including regular/notional promotion (as his/her lien remains in the parent University since he /she has not been regularised in the APJ Abdul Kalam Technological University service). They are free to apply afresh for appointment by option in the APJ Abdul Kalam Technological University to any of the category of posts in accordance with this notification.

12. Vacancies in various categories of posts filled up on the basis of option given and by direct recruitment shall be treated as "vacancies filled up" and only the remaining vacancies in the respective categories shall be treated as "vacancies remaining" to be filled up by option.

13. Persons who have been provisionally promoted to the category of post other than the category of post to which they gave option for appointment in the APJ Abdul Kalam Technological University, shall be deemed to have been appointed and continuing in any category of post to which they gave option. Such persons shall have the right to give option to such categories of course to which they were promoted in the University, provided the parent University in which they have lie, certifies that they have been promoted to such category of post with effect from such date (to be specified by the parent W.P.(C) No.10 of 2022

University through Annexure 2) not later than the date of this notification. Such options would be processed for appointment in the respective category in accordance with the provisions of the first statutes.

14. Persons who have been appointed to a category of post to which they gave option for appointment in APJ AKTU, who would have been promoted to a higher category of post in their parent University had they continued there, would also have the right to give option to such other categories of course in APJ AKTU, provided the parent University in which they have lien, certifies that they would have been promoted to such category of post with effect from such date, (to be specified by the parent University through Annexure 2) not later than the date of this notification. Such options would be processed for appointment in the respective category in accordance with the provisions of the first statutes.

2.18 Clause 14 clearly says that persons who have been

appointed to a category of post to which they gave option for

appointment in APJ AKTU and who would have been promoted to a

higher category of post in their parent University had they continued

there, would also have the right to give option to such other categories

of course in APJ AKTU, provided the parent University in which they

have lien, certifies that they would have been promoted to such

category of post with effect from such date.

2.19 In response, the Registrar of M.G. University issued Ext.P17 W.P.(C) No.10 of 2022

on 8.2.2021 certifying that, if the petitioner continued in the parent

University, she would have been promoted as Assistant Registrar on

1.6.2019 and Assistant Registrar (HG) on 1.6.2020.

2.20 In compliance with Ext.P16, the petitioner is stated to have

submitted Ext.P18 option to the post of Assistant Registrar (HG) on

15.2.2021 as she was entitled to an opportunity to get a posting above

her juniors. When no action was taken, she submitted Ext.P19

representation before the Vice Chancellor of the 2nd respondent seeking

to reckon her seniority on the basis of her service details as provided by

the M.G. University.

2.21 Later, based on legal opinion received by the 2nd respondent

that the appointment of non-teaching staff in the APJ AKTU were as

regular appointments and that they had acquired a lien to the post to

which they were appointed in the APJ AKTU, it was decided to prepare a

combined seniority list of the non-teaching staff who had been

appointed under Section 7(5) of Act 17 of 2015 and in respect of those

persons, options had been invited in the light of clause 16 of Part IV of

Chapter 7 of the First Statute.

W.P.(C) No.10 of 2022

2.22. The Syndicate of APJ AKTU in its 21st Meeting held on

12.4.2021 approved the decision of the General Body to amend the First

Statute and Ext.P20 is the copy of the minutes. In Ext.P20, it was noted

that sub statute 13 of Statute 38 of Chapter 7 provides that options may

be given for appointment to the remaining vacancies to various posts

(category) in the University sanctioned by the Government by any

person holding an equivalent post in any University specified in the

schedule within 6 months of coming into force of these statutes, except

to vacancies of posts to be filled up by the Kerala Public Service

Commission by direct recruitment under any law in force. Though

notification for inviting a fresh option was issued on 28.1.2021 and

applications were received, no appointments could be done as it was

reckoned as violative of Statute 38 Part II which stipulates that

appointments by option are to be completed within six months from the

date of promulgation of First Statute, i.e., 4.2.2021. Later, by Ext.P21

letter, the 1st respondent has informed the 3rd respondent that the

Vice Chancellor has given assent on 23.7.2021 for the amendments and

for extending the time limit prescribed for completing various statutory

actions to one year and six months as resolved by the Board of W.P.(C) No.10 of 2022

Governors.

2.23 The petitioner contends that the respondents have been

undertaking before all concerned and even in the Kerala Legislative

Assembly that employees appointed on option pursuant to the initial

notification have been granted promotion in the APJ AKTU.

2.24 While so, on 14.10.2021, the 3rd respondent has issued

Ext.P23 corrigendum notification notifying one vacancy of Section Officer

and one vacancy of Assistant Registrar in addition to the vacancies

notified originally by deleting clauses 11 and 14 of Ext.P16 and carrying

out certain amendments. On the basis of the above turn of events,

several persons who are juniors to the petitioner in the post of Section

Officer in the M.G. University and who got a promotion to the higher

post of Assistant Registrar and Deputy Registrar there have exercised

the option to be appointed to the post of Deputy Registrar in APJ AKTU,

while the petitioner will stagnate in the post of Section Officer. The

serious injustice that has ensued would be evident from Ext.P26, which

is the provisional seniority list of Joint Registrar, Assistant Registrar and

Section Officer in the M.G. University.

W.P.(C) No.10 of 2022

2.25 The petitioner contends that Ext.P16 and P23 have been

issued without drawing the seniority list of non-teaching employees

including the petitioner who had exercised the first option in 2017

pursuant to Exts.P1 to P3, as provided for by Section 7(5) of the Act.

After the notification of the Statute, by virtue of Section 7(3) of the Act,

options can be called for from employees of the affected Universities.

The petitioner is a pre-statute employee who had joined the services of

the APJ AKTU in the year 2017 pursuant to Exts.P1 to P3 and pursuant

to directions issued by this Court. The petitioner contends that the

service conditions of the employees appointed pursuant to Section 7(5)

of the Act cannot be made to their detriment so as to affect their right

to promotion. While Section 7(3) empowers the University to appoint the

non-teaching staff from affected Universities and who have exercised

their option, the same can only be subject to the terms and conditions

as may be prescribed in the Statute/Ordinance. However, no such

restrictions can be placed in Section 7(5). The Government has failed to

perform its obligation under Section 7(5) of the Act prescribing the

method of appointment, terms of appointment, eligibility criteria,

promotion etc. of the employees by respondents 2 and 3 and the same W.P.(C) No.10 of 2022

has resulted in denial of promotion to the petitioner. By inviting fresh

options for higher posts in APJ AKTU on the basis of Sub Clause 13

under Clause 38 in Part II of Chapter 7 of the First Statute, the juniors

of the petitioner would be appointed to the higher post of Assistant

Registrar/Deputy Registrar/Joint Registrar. This, according to the

petitioner, would be ultra vires Section 7(5) of Act of 2015. It is in the

above fact scenario that this writ petition is filed seeking the following

reliefs:

1. Declare that sub clause 13 in Part II and Sub Clause 16 in Part IV under Clause 38 of Chapter 7 of the First STatute of APJ AKTU is ultra vires of Section 7(5) of the Act 17 of 2015.

2. Call for the records relating to Ext.P16 and P23 and quash the same by issuing a writ of certiorari.

3. Declare that the substantive vacancies which are in existence on 5.8.2020 (the date of coming into force of the First Statute) in respondent No. 2 University, cannot be filled up by the method of inviting option from the other Universities without completing the process contemplated by Section 7(5) of the Act.

4. Issue a writ of mandamus directing respondents 1 to 3 to frame the norms prescribing the service conditions including the method of appointment, terms of appointment, eligibility criteria, promotion etc for the various posts in respondent NO. 2 University and finalise a seniority list of the existing employees based on their date of appointment in their parent Scheduled University within a time frame fixed by this Hon'ble Court.

W.P.(C) No.10 of 2022

5. Declare that the petitioner is a regular employee of respondent No.2 University and is entitled for promotion to the posts of Assistant Registrar and above in the substantive vacancies based on her seniority in service reckoned with reference to her service in the M.G. University.

6. Issue a writ of mandamus directing respondent No. 1 to 3 to notify a seniority list of employees who have joined service based on the options exercised under Section 7 (5) of the Act.

7. Issue a writ of mandamus directing respondent No.1 to 3 to refrain from filling up the vacancies Assistant Registrar and above in APJ AKTU based on Ext.P16 and P23 notification through option.

8. To issue a writ of mandamus directing respondent No.1 to 3 to grant promotion to the petitioner to the post of Assistant Registrar and above based on her seniority in service reckoned with reference to her service in the M.G.University.

3. A counter affidavit has been filed by the 1st respondent

wherein it is stated that the Statute of APJAKTU was notified by the

Government on 7.8.2020 in exercise of powers conferred under Section

42 and 43 of APJ Abdul Kalam Technological University Act, 2015 on

7.8.2020. In terms of the provisions of the Statute, the Syndicate is

required to frame Ordinances. The University employees and

non-teaching staff sanctioned by the Government before the coming into

force of the Statute are to be regulated by the Statutes and the

Ordinances framed by the Syndicate. In terms of Statute 15, the APJ W.P.(C) No.10 of 2022

Abdul Kalam Technological University Service has to be constituted and

the Syndicate is required to prepare and publish a list of persons to be

included in the University Service within six months, which was later

amended as one year and six months of coming into force of the

Statute. It is stated that as per Ext.P2, sanction has been accorded to

the Registrar to invite options from the employees of the Universities

mentioned in the schedule of the APJ Abdul Kalam Technological

University Act, 2015 for appointment to non-teaching staff by order

dated 1.1.2016. It was also ordered that in the arising vacancies in

future and at the time of creation of new posts, appointments shall be

made by option from the existing list. It is also stated that the

grievance of the petitioner has arisen out of the non-framing of the

Ordinance of the University. It is further stated that the University has

taken a stand that the promotions were not made in accordance with

the provisions contained in the Act or Statutes and the promotions

already given would be reviewed in the Ordinance to be issued by the

University and the Government has no role.

4. In the counter affidavit filed by the 2nd respondent, it is

stated that the principles governing appointment by option, be it, before W.P.(C) No.10 of 2022

the coming into force of the First Statute or after the coming into force

of the First Statute, is to be governed by the terms and conditions of

service prescribed in the Ordinance to be issued by the University as

mandated in Chapter 7, Statute 38, Part I, Sub Statute (1) which says

that the Syndicate shall frame Ordinances in the matter of conditions

relating to service and emoluments of employees and non-teaching staff

sanctioned by the Government. It is also stated that the University

employees and non-teaching staff appointed before the coming into

force of the Statute are also to be regulated by the Statute and the

Ordinances framed by the Syndicate.

4.1 The respondents 2 and 3 would deny the assertion of the

petitioner that she was appointed on a regular basis in the 2nd

respondent University by accepting her option. It is stated that as per

Chapter 7 Statute 38, Part III Sub Statute (15), APJ Abdul Kalam

Technological University Service has to be constituted and only after the

constitution of the same, can the regularization of the employees

appointed by option, be done. At the time of the framing of the

Ordinance, the employees appointed in the University service by option

will be regularized and their terms and conditions of service would be W.P.(C) No.10 of 2022

regulated. The respondents would deny that by Ext.P7 proceedings,

persons who are working as Assistant Registrars were promoted as

Deputy Registrars in the 2nd respondent University. It is stated that the

promotions were not made following the provisions contained in the Act

and Statute. The promotions which have already been made would be

reviewed following the Ordinances which are to be issued by the

Universities. It is further stated that Chapter 7, Statute 38, Part III Sub

Statute(16) relates to seniority in APJ Abdul Kalam Technological

University Service. It provides the manner in which persons appointed in

various categories in the APJ AKTU Services before the coming into force

of the Statute and those who got an appointment to the categories by

option up to the date of completion of one year and six months of

coming into force of the Statute, would be the seniority date fixed for

them in the respective category in their respective parent University.

According to respondents 2 and 3, the example quoted under the Sub

Statute would clarify the position. The example reads as follows:

"The seniority date of 'X' in University 'A', in the seniority list of Assistant Category in the said University is 1.1.2019. The Seniority date of 'Y' in the said University in the seniority list of Assistant category in the said University is 2.1.2019. Both of them secure appointment to vacant posts of Assistants by W.P.(C) No.10 of 2022

option in the APJ Abdul Kalam Technological University Service. 'X' will be senior to 'Y' in the University service.

This is the general example to be followed in each category of

posts where the appointment is made by option.

4.2 It is stated that as per Chapter 7, Statute 38, Part II, Sub

Statute (13), an opportunity is granted for appointment by option to

posts sanctioned by the Government. The persons who exercise options

in terms of the above provisions shall acquire eligibility for appointment

in the category of his option based on the date of seniority in the

category in the parent University. The seniority of each category of

employees entering University service up to the completion of date of

one year and six months from the date of coming into force of the

Statute is to be determined following the above principle. Therefore,

inter se seniority of persons appointed in each category by option before

the coming into force of the First Statute and after the coming into force

of the First Statute is to be determined by following the principle

propounded under Sub Statute 16. It is stated that the above exercise

can be completed only after finalizing the options for various categories

of posts which are vacant and notified for the appointment. The W.P.(C) No.10 of 2022

seniority of a person fixed in the parent University is not the criteria for

determining seniority in the University Service.

4.3 It is stated that the amendments made to the First Statute

have received the assent of the Chancellor as required under Section 43

of the Act and the same has been notified in the Gazette as required

under Section 48 of the Act. The promotions given before the coming

into force of the First Statute would be reviewed and regulated by the

Ordinances issued by the University.

4.4 It is further stated that there are two stages of getting an

appointment as non-teaching staff other than those earmarked to KPSC.

However, respondents 2 and 3 have denied that the two stages are

pre-Statute in terms of Section 7(5) and post-Statute in terms of

Section 7(3) of the Act. It is further stated that in the APJ AKTU, no

person has been appointed by the Government under Section 7(5) of

the Act. All the appointments have been made by the University by

inviting options from persons holding identical categories of posts in the

Universities specified in the schedule of the Act. All persons appointed

in the APJ Abdul Kalam Technological University are governed by Section W.P.(C) No.10 of 2022

7(3) and their appointments shall be subject to the terms and conditions

of the Statutes and the Ordinances to be issued by the Syndicate of the

University as provided in the First Statute. It is stated that the seniority

list of the non-teaching staff appointed in the University can be drawn

up only in terms of the provisions of the First Statute. In terms of the

directions issued by the Government to invite options for filling up the

various categories of posts notified as Deputation /Open in the post

creation orders, the University has invited options fixing the terms and

conditions tentatively, as part of the Administrative mechanism. It is

stated that the appointment by option is in terms of the Act and

Statutes. It is stated that since the terms and conditions of service of

the employees have not been fixed to date, it may so happen that a

junior to the petitioner who continued in the parent University may be

appointed to a higher category of posts in the APJ AKTU. This, according

to respondents 2 and 3, is a natural consequence. It is stated that the

University will not be able to prohibit/reject applications submitted as

per the notification issued by the University on the ground that the

applicants were previously junior to the petitioners in the parent

University. The petitioner has opted for an appointment in the APJ AKTU W.P.(C) No.10 of 2022

after foregoing all her claims in the parent University and she can not

turn around and claim the benefits to which she is entitled in the parent

University as her lien stands terminated on the date of her appointment

in the APJ AKTU. It is stated that none of the fundamental rights of the

petitioner has been violated.

5. I have heard Sri. P.B.Krishnan, the learned counsel

appearing for the petitioner, Sri. Elvin Peter, the learned standing

counsel appearing for the APJ AKTU, Sri. Surin George Ipe, the learned

standing counsel appearing for the M.G.University and Smt. Anima, the

learned Government Pleader.

6. Sri. P.B.Krishnan, the learned counsel submitted that the

petitioner had exercised her option in the year 2016 to come over to the

APJ AKTU after receiving calls from the Government. She was under the

bonafide belief that on being appointed in the APJ AKTU, she would be

considered for further promotion. According to the learned counsel, due

to the delay in notifying the Statute and in framing norms prescribing

the method of appointments, eligibility criteria, promotion etc. serious

prejudice has been caused to the petitioner. The petitioner is continuing W.P.(C) No.10 of 2022

in the post of Section Officer since 2017 and she is stagnating without

any promotional avenues. That being the case, the act of the

respondents in calling for fresh options after notifying the Statute

proposing to fill up the vacancies would result in a situation wherein

juniors of the petitioner from the M.G.University will be appointed to

higher posts. According to the learned counsel, under Article 16 of the

Constitution, there shall be equality of opportunity for all citizens in

matters relating to employment or appointment to any office under the

State or to promotion from one office to a higher office thereunder.

Article 16(1), Article 14 and Article 15(1) form part of the same

constitutional code of guarantees and supplement each other. The

matters relating to employment needs to include all matters concerning

employment both prior, and subsequent, to the employment which are

incidental to the employment and form part of the terms and conditions

of such employment. According to the learned counsel, the sequence of

events would show that the petitioner has been superseded and

unreasonably discriminated against in the matter of promotion and the

same would be violative of the guarantee of equality of opportunity

enshrined in Articles 14 and 16 of the Constitution. The learned Counsel W.P.(C) No.10 of 2022

would rely on Ramesh Prasad Singh v. State of Bihar and Others

[(1978) 1 SCC 37] and it is submitted that the respondents have treated

unequals as equals in the matter of appointment and promotion, which

could not have been done particularly when the petitioner form a

different class being recruited under Section 7(5) whereas the

post-Statute recruitees would form another class. By treating them as

equals the right to be considered for promotion has been infringed,

contended the learned counsel. Relying on Ajit Singh and Others v.

State of Punjab and Others [AIR 1999 SC 3471], it is contended by

Sri P.B. Krishnan that Article 16(1) provides to every employee otherwise

eligible for promotion or who comes within the zone of consideration, a

fundamental right to be "considered" for promotion. If such a person

who satisfies the eligibility and zone criteria but is not considered for

promotion, there will be a clear infraction of his fundamental right to be

"considered" for promotion, which is his personal right.

7. Sri. Elvin Peter, the learned standing counsel submitted

that all the employees who have been appointed by the University by

option will be regularized at the time of framing of Ordinances.

According to the learned counsel, the promotion already granted would W.P.(C) No.10 of 2022

be reviewed following the Ordinances to be issued and in terms of the

provisions of the Statute. The learned counsel would further contend

that the actions taken by the respondents are strictly in terms of the Act

and Statutes and the terms and conditions of the petitioner will be

governed by the Statute and the Ordinances to be issued by the

University. According to the learned counsel, the mere fact that a junior

of the petitioner who continued in the parent University has exercised

fresh options after the coming into force of the Statute cannot lead to

any prejudice.

8. When the writ petition came up for admission on 4.1.2022,

this Court, as an interim measure, interdicted the respondents from

finalizing the proceedings pursuant to Exts.P16 and P23 without getting

further orders from this Court.

9. Later, by order dated 31.1.2022, the interim order dated

4.1.2022 was modified and the University was permitted to proceed with

the appointment. However, it was made clear that the appointments, if

any, made shall be subject to the outcome of the writ petition.

10. I have carefully considered the submissions and have gone W.P.(C) No.10 of 2022

through the entire records.

11. The Government, considering that the establishment of a

Technological University was inevitable for the improvement of the basic

infrastructural and academic standards of Technical Education in the

State, decided to bring all the Engineering Colleges in the State under

an independent University. It was felt that only then could the State

achieve academic excellence in Technical Education Research and obtain

financial assistance from National as well as International Agencies. It

was in the said circumstances that the Government decided to establish

a Technical University in the State to achieve the objectives. The APJ

Abdul Kalam Technological Act, 2015 was accordingly enacted to

establish and incorporate a University for the promotion of technical

education in the State of Kerala.

12. Chapter 5 of the Act provides for Statutes, Ordinances,

Regulations and Orders. Section 42 provides for Statutes, Section 43

provides for the Procedure for making Statutes, Section 44 provides for

Ordinances, Section 45 provides for Regulations and Section 49 provides

for the powers to make rules. Section 42(vi) of the Statutes provides W.P.(C) No.10 of 2022

that the Statute may provide for the principles governing the seniority

and service conditions of the staff of the University. Unfortunately, for

reasons best known, neither the Statutes nor the Ordinances were

notified in terms of the provisions of the Act. The Statute was notified

only on 5.8.2020 and the Ordinance was notified only on 4.2.2022 much

after the filing of the writ petition.

13. After deciding to set up the University, the Government felt

that to get the UGC status for the University, an academic campus with

a minimum of 5 departments was inevitable. Requests were made by

the Vice Chancellor of the Technological University to the Government to

create various posts of teaching and non-teaching staff in the APJ AKTU

campus and for the headquarters.

14. It would be apposite at this juncture to bear in mind that

before the establishment of the APJ AKTU, all the Engineering Colleges

in the State were affiliated with the then existing Universities in the

State of Kerala. After the establishment of the University, all those

Engineering Colleges which were affiliated with other Universities were

affiliated with the present University. The consequence is that a section W.P.(C) No.10 of 2022

of the teaching and non- teaching staffs in the then existing Universities

in the State stood affected by the setting up of the APJ AKTU. As per the

provisions of KTU Act, the six Universities which were affected by the

establishment of APJ Abdul Kalam Technological University have been

included in the Schedule as Serial Nos. 1 to 6. They are:

1) The University of Kerala, Thiruvananthapuram.

         2)      The University of Calicut, Kozhikode.

         3)      The Mahatma Gandhi University, Kottayam.

         4)      The Cochin University of Science & Technology, Kochi.

         5)      The Sree Sankaracharya University of Sanskrit, Kalady.

         6)      The Kannur University, Kannur.

15. The Government accordingly issued Ext.P2 Order granting

sanction for appointment by option and on its basis, the University

issued a notification whereby options were invited from the

non-teaching staff employed in the above Universities for making

appointments.

16. Appointments were made by resorting to Section 7 of the

Act which provides for the appointment of teaching and non-teaching W.P.(C) No.10 of 2022

staff. The said provision reads thus.

7. Appointment of teaching and non-teaching staff. - (1) Subject to the provisions of this Act and the Statutes made thereunder, the appointments to the posts which are not to be made through the Kerala Public Service Commission shall be made by the University.

(2) In making appointments to the teaching and non-teaching posts, the University shall, mutatis mutandis, observe the provisions of clauses (a), (b) and (c) of rule 14 and the provisions of rules 15, 16, 17 and 17A of the Kerala State and Subordinate Services Rules, 1958, as amended from time to time, and communal rotation shall be followed category-wise treating all the departments as one unit.

(3) The non-teaching staff of any of the Universities specified in the Schedule to this Act, who are affected by the establishment of the A.RJ. Abdul Kalam Technological University as per section 3, may give option for being appointed in this University and the University may appoint them subject to the terms and conditions as may be prescribed.

(4) The teaching-non-teaching staff may be given appointment on deputation basis to the similar posts in the University in such manner as may be prescribed.

(5) Notwithstanding anything contained in any law for the time being in force, the existing teaching and non-teaching staff under any University specified in the Schedule to this Act which comes under the jurisdiction of the University and may be affected by the establishment of the said University may be appointed in the University by option and the Government may, by notification in the Gazette, determine such appointment, transfer and the norms thereof.

17. As per Section 7, the appointments to the post which are W.P.(C) No.10 of 2022

not to be made through the KPSC are to be made by the University

subject to the provision of the Act and the Statutes made thereunder.

It also provides that while making appointments to the teaching and

non-teaching staff, the University shall mutatis mutandis observe the

provisions of the Kerala State and Subordinate Service Rules, 1958,

mentioned therein and to follow communal rotations treating all the

departments as one unit. As per Section 7(3) of the Act, the

non-teaching staff of any of the Universities specified in the schedule to

the Act, who are affected by the establishment of the APJ Abdul Kalam

Technological University as per Section 3 may give options for being

appointed in the APJ AKTU and the University may appoint him subject

to the terms and conditions as may be prescribed. However, since the

Statutes, Ordinances and University service had not been notified, no

appointment could be made on the strength of Section 7(3). To get

over the stalemate and to make appointments, Section 7(5) of the Act

provided the way out. It starts with a non-obstante clause and says that

notwithstanding anything contained in any law for the time being in

force, the existing teaching and non-teaching staff under any University

specified in the schedule to the Act 17 of 2015, which comes under the W.P.(C) No.10 of 2022

jurisdiction of the University and who may be affected by the

establishment of the said University be appointed in the University by

option and the Government may, by notification in the Gazette,

determine such appointment, transfer and the norms thereof. In other

words, Section 7(5) of the Act enabled the employees of the scheduled

Universities to exercise their option and to become employees of the

new University even before the framing of the First Statute or the

Ordinance. Obviously, the provision was included to ensure that the

services of experienced persons, teaching as well as non-teaching, are

secured by the University to guide it through its infancy.

18. In the counter affidavit filed by the respondents 2 and 3,

they have taken a contention that no person has been appointed to the

APJ Abdul Kalam Technological University under Section 7(5) of the Act.

It is contended that the appointments made were all under Section 7(3)

of the Act and the same is subject to terms and conditions of the

Statutes and Ordinances which were to be notified later. They have also

contended that the petitioner has not been appointed on a regular basis.

I am afraid that the said contention cannot be accepted as the same

goes against the stand taken by the respondents 2 and 3 in previous W.P.(C) No.10 of 2022

proceedings before this Court and also against their very orders. In all

the earlier proceedings which resulted in Ext.P8 and P10 judgments, the

APJ AKTU had asserted in the counter that Section 7(5) of the Act

permitted the appointment of employees of other Universities in the 2nd

respondent and it was in the said circumstances that persons like the

petitioner who had exercised the option were relieved from the

scheduled Universities and were appointed in the APJ AKTU. While

disposing of the Writ Appeal, the Division Bench after hearing both sides

had observed that the appeals can be disposed of in the light of

interpretation given to section 7(5) of the Act. It is too late in the day

for the University to contend that the appointment of the petitioner was

made under Section 7(3) of the Act. In other words, resort was made to

Section 7(5) to set the ball rolling after the setting up of the University

so that the functioning of the University starts without delay. As held by

this Court in the earlier proceedings, it was for the Government to

determine the norms of the appointment at that stage in the absence of

the Statutes and Ordinances. Appointment under Section 7(3) of the Act

could have been resorted to, only after notifying the statute as has been

done now. In other words, the persons whose appointments were made W.P.(C) No.10 of 2022

before the notification of the Statute had to be treated as one class and

those employees of the Schedule Universities from whom options were

invited after notifying the Statute would form a different class of

appointees for whom statutes and ordinances would apply.

19. I am also unable to accept the contention of respondents 2

and 3 that the appointment of the petitioner in the APJ AKTU was not on

a regular basis. In Exhibit P6 proceedings dated 24.07.2017, it is stated

that sanction has been accorded by the Vice-Chancellor to appoint the

petitioner and others against the post of Section Officer on a "regular

basis" by the exercise of option in the University and service

book/details of service, Provident Fund, Leave salary and other

mandatory deductions/ contributions will have to be forwarded to the

APJ AKTU as per the Rules.

20. Now we may consider the gross injustice meted out to the

petitioner in the matter of promotion. It was on 5.8.2020 that the First

Statute of the University was notified. Chapter 7 Statute 38 Part III Sub

Statute(16) deals with seniority in APJ AKTU. It says that in respect of

persons appointed in the various categories in the APJ AKTU before the W.P.(C) No.10 of 2022

coming into force of the Statute and those who got appointment to the

categories by option up to the date of completion of one year and six

months, the guideline for determining the seniority of the persons in the

said categories in the University Service would be the seniority date

fixed by them in the respective category in the respective parent

Universities. If this provision is implemented in its letter and spirit,

fairness could have been achieved.

21. However, no attempt was made by the University to draw

up the seniority of the employees who had opted prior to the framing of

the Statute who are the Section 7 (5) appointees.

22. Without drawing up the seniority of the petitioner, Ext.P16

notification was issued on 28.1.2021 inviting options of employees and

non-teaching staff to the various categories of posts sanctioned by the

Government. In the meantime, it is undisputed that juniors of the

petitioner in the MG University were promoted to higher posts. From

Exhibit P19 produced before this Court, it can be seen that the petitioner

is item No.119 in the Seniority list of Section Officers (HG) in the

M.G.University whereas Bindu Kumari is in Serial No. 165 and W.P.(C) No.10 of 2022

Harikrishnan K. is in Serial No. 172. However, Bindu Kumari and

Harikrishan continued in M.G. University and were promoted to the post

of Deputy Registrar in course of time. When fresh options were invited

after notifying the Statute, the aforesaid Bindu Kumari and Harikrishnan

also responded to the same. From Exhibit P24, it is evident that Bindu

Kumari.K. and Harikrishnan have been marked for appointment to the

post of Deputy Registrar in the APJ AKTU by accepting their option. The

consequence is that the juniors of the petitioner in the M.G. University

when appointed in the APJ AKTU on exercise of option would be placed

above the petitioner, who still remains as the Section Officer. This, in my

opinion, will clearly work out injustice to persons like the petitioner, who

chose to exercise the option at the time of setting up of the University.

23. The above imbroglio has happened only because of the

delay of over 3 years in framing the Statute and the even further delay

in notifying the ordinance. Under no circumstance can the delay caused

due to administrative laxity cause prejudice to employees like the

petitioner.

24. It was with a view to protect the interest of employees like W.P.(C) No.10 of 2022

the petitioner who had exercised option before the Statute that clause

14 was included in Ext.P16. It states that persons who have been

appointed to a category of posts to which they gave option for

appointment in APJ AKTU, and who would have been promoted to a

higher category of posts in their parent University had they continued

there, would also have the right to give option to such higher categories

of posts in APJ AKTU, provided the parent University in which they have

lien certifies that they would have been promoted to such category of

posts with effect from such date to be specified by the parent University

in Annexure-2 form appended therein. It was also made clear that such

options would be processed for appointment in the respective category

as per the provisions of the First Statute. In other words, clause 14

reckons employees appointed pre-Statute as a separate class and their

seniority is protected in tune with the mandate of Chapter 7 Statute 38

of Sub Statute (16) of the First Statute. I find that in terms of the

requirement under Ext.P16, the provisional seniority list of Joint

Registrar, Deputy Registrar, Assistant Registrar and Section Officer were

forwarded to the APJ AKTU. As per Ext.P18, the petitioner would have

been promoted as Assistant Registrar on 1.6.2019 and Assistant W.P.(C) No.10 of 2022

Registrar (HG) on 1.6.2020 as on the date of notification of option on

28.1.2021 by APJ AKTU had she continued in the M.G. University.

Interestingly, Ext.P18 certificate was issued based on the letter dated

31.1.2021 issued by the 2nd respondent.

25. However, the University has later come up with Ext.P23

corrigendum notification on 14.10.2021 wherein clause 11, portions of

clause 13 and 14 were deleted. Paragraph Nos. 5 to 8 of Ext.P23 are of

some relevance and the same is extracted below for convenience.

5. Paragraphs 11, 13 and 14 of the condition for option were incorporated in the notification dated 28.1.2021 under the bonafide belief that these non-teaching staff who were already appointed in the University had their lien retained in their parent University from where they were appointed and consequently they were entitled to get repatriated to the parent University. However, on receipt of subsequent legal opinion, it is clarified that the said provision shall be applicable only to those non-teaching staff if any who gets repatriated to their parent University and will not apply to those non-teaching staff who are still continuing in the APJ Abdul Kalam Technological University.

6. In the case of non-teaching staff who submitted their options from the Sree Sankaracharya University of Sanskrit, Kalady, pursuant to the notification dated 28.1.2021 and this corrigendum notification, it is clarified that their appointment will be subject to the result of the Writ Petitions challenging appointment by Option from the said University which are pending before the High Court of Kerala.

7. In the case of non-teaching staff who are already appointed W.P.(C) No.10 of 2022

and who are to be appointed pursuant to the notification dated 28.1.2021 and this corrigendum notification, their seniority will be fixed in accordance with the provisions contained in Chapter 7 Statute 38 Part IV Sub Statute 16 of the APJ Abdul Kalam Technological University First Statutes and only thereafter their claim for the regular promotions will be considered.

8. In the light of the above, in paragraph III of the Notification dated 28.1.2021 "Conditions for Options", the following amendments are made:

a) In the light of paragraph 2 and 4 above, in condition 2, the words 'deemed vacancies' shall be deleted and after the word 'First Statutes' the words and figures 'and which arose after 05.08.2020' shall be inserted.

b) In the light of paragraph 4 above, in condition 4, after the word 'Notification', the words 'and this Corrigendum Notification' shall be added.

c) In the light of paragraph 5 above, in condition 6, the following sentence shall be added at the end. 'Persons who have already given Option to a category of post pursuant to the Notification dated 28.01.2021 need not give options as per this Corrigendum, provided they are holding the same category of post at the time of finalizing the option, by the University since options can be considered only to similar category of vacant posts in the University as per the Statutes. Person who has given option as per the notification dated 28.1.2021 and who has been promoted to a higher category of post during the period from 28.1.2021 to the date of this corrigendum only may withdraw the already submitted copies and submit fresh options to higher promoted category of posts if notified as vacant posts. Such Options will be considered only in accordance with the provisions of the First Statutes.

d) In the light of paragraph 5 above, Paragraph 11 shall stand deleted.

e) In the light of paragraph 5 above, the 2nd and 3rd W.P.(C) No.10 of 2022

sentences of condition 13 shall stand deleted.

f) In the light of the paragraph 5 above, condition 14 shall stand deleted.

This corrigendum notification shall be 15 days from the date of issuance

of the corrigendum notification.

26. The reason for bringing out a corrigendum notification is

that paragraph Nos. 11, 13 and 14 of the condition of option were

incorporated in the notification dated 28.1.2021 under the bona fide

belief that those non-teaching staff who were already appointed in the

University had their lien retained in the parent University from where

they were appointed and consequently, they were entitled to get

repatriated to the parent University. It is stated that the University

received a legal opinion that said provision shall apply only to those

non-teaching staff, if any, who get repatriated to their parent University

and will not apply to those non-teaching staff who are continuing in the

APJ AKTU.

27. Going through the corrigendum notification, it appears that

even the respondents were under the impression that those

non-teaching staff who were already appointed in the University had

their lien retained in the parent University from where they were W.P.(C) No.10 of 2022

appointed. It was for that purpose that while issuing Exhibit P16, the

parent University was directed to certify that the employee concerned

had been promoted to such category had the employee continued in the

parent University. Section 7(2) of the Act says that in making

appointments to the teaching and non-teaching posts, the University

shall, mutatis mutandis, observe the provisions of clauses (a), (b) and

(c) of rule 14 and the provisions of rules 15, 16, 17 and 17A of the

Kerala State and Subordinate Services Rules, 1958, as amended from

time to time, and communal rotation shall be followed category-wise

treating all the departments as one unit. Under Chapter II Rule 12 (18)

of Part I of the KSR, 'Lien' has been defined to mean the title of an

officer to hold substantively, either immediately or on termination of a

period or periods of absence, a permanent post to which he has been

appointed substantively. Lien of a Government employee in service law

is the right of a Government employee to hold a permanent post

substantively to which he has been permanently appointed. When a

person with a lien against the post is appointed substantively to another

post, only then he acquires a lien against the latter post. Then and then

alone, lien against the previous post disappears. Lien of a Government W.P.(C) No.10 of 2022

employee over a previous post ends if he is appointed to another

permanent post on a permanent basis. In such a case, the line of an

employee shifts to a new permanent post. It may not require formal

termination of lien over previous permanent post (See State of

Rajasthan v. S.N. Tiwari, [(2009) 4 SCC 700]. In the case on hand,

the appointment of the petitioner was made by way of an option and

that too by invoking a special provision in the enactment to tide over an

unprecedented situation. She remained in the post hoping that the

respondents would make necessary safeguards to ensure that she is

promoted to higher posts and not permitted to stagnate. By deleting

clause 14 of Exhibit P16 by Exhibit P23 for trivial reasons, the petitioner

has been pushed behind even her juniors in service.

28. The respondents were bound to consider that the persons

who were appointed by invoking Section 7(5) fell into a separate class

altogether and it was for the Government to fix norms for their

appointment, eligibility criteria and promotion. All that the Government

has stated in the counter affidavit filed by them is that the University

has undertaken that the promotions already made would be reviewed

when the ordinance is issued by the University and the Government has W.P.(C) No.10 of 2022

no role in the matter. The Government has thus washed off its hands

and has placed the burden on the University to regulate the promotions

in terms of the provisions of the Statute. This is clearly against what was

stated in Exhibit P1 order while creating and sanctioning posts wherein it

was stated that the Pay and Allowances, retirement age and pensionary

benefits of the employees from the University / Department who were

appointed in technological University through Deputation/Option are

similar to that of their parent Universities/ Departments.

29. In Ajit Singh(II) v. State of Punjab [(1999) 7 SCC 209],

among other questions raised before the Hon'ble Supreme Court, one of

the questions was whether the right to promotion is merely a statutory

right. Another question was whether 'Promotion" based on equal

opportunity and "seniority" attached to such promotion are facets of

fundamental rights under Article 16(1) of the Constitution. While

answering the question, it was held as follows in paragraphs 22 to 27:

Articles 14 and 16(1): is right to be considered for promotion a fundamental right

22. Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the "State shall not deny to any person equality before the W.P.(C) No.10 of 2022

law or the equal protection of the laws". Article 16(1) issues a positive command that

"there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".

It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense "equality of opportunity" in matters of employment and appointment to any office under the State. The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of the initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.

"Promotion" based on equal opportunity and "seniority" attached to such promotion are facets of fundamental right under Article 16(1)

23. Where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity stated in Article 16(1). For example, if the promotion is by rule of "seniority-cum-suitability", the eligible seniors at the basic level as per seniority fixed at that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category they would have to count their seniority W.P.(C) No.10 of 2022

from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, the next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion. (There are minor modifications in various services in the matter of counting of seniority of such promotees but in all cases the seniormost person at the basic level is to be considered first and then the others in the line of seniority.) That is how right to be considered for promotion and the "seniority" attached to such promotion become important facets of the fundamental right guaranteed in Article 16(1).

Right to be considered for promotion is not a mere statutory right

24. The question is as to whether the right to be considered for promotion is a mere statutory right or a fundamental right.

25. Learned Senior Counsel for the general candidates submitted that in Ashok Kumar Gupta v. State of U.P. [(1997) 5 SCC 201] it has been laid down that the right to promotion is only a "statutory right" while the rights covered by Articles 16(4) and 16(4-A) are "fundamental rights". Such a view has also been expressed in Jagdish Lal [(1997) 6 SCC 538] and some other latter cases where these cases have been followed. Counsel submitted that this was not the correct constitutional position.

26. In this connection our attention has been invited to W.P.(C) No.10 of 2022

para 43 of Ashok Kumar Gupta [(1997) 5 SCC 201]. It reads as follows: (SCC p. 239)

"43. It would thus be clear that right to promotion is a statutory right. It is not a fundamental right. The right to promotion to a post or a class of posts depends upon the operation of the conditions of service. Article 16(4-A) read with Articles 16(1) and 14 guarantees a right to promotion to Dalits and Tribes as fundamental right where they do not have adequate representation consistently with the efficiency in administration. ... before expiry thereof (i.e. 5 years rule), Article 16(4-A) has come into force from 17-6-1995. Therefore, the right to promotion continues as a constitutionally guaranteed fundamental right."

A similar view was expressed in Jagdish Lal [(1997) 6 SCC 538] and followed in some latter cases. In the above passage, it was laid down that promotion was a statutory right and that Articles 16(4) and 16(4-A) conferred fundamental rights.

27. In our opinion, the above view expressed in Ashok Kumar Gupta [(1997) 5 SCC 201] and followed in Jagdish Lal [(1997) 6 SCC 538] and other cases, if it is intended to lay down that the right guaranteed to employees for being "considered" for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be "considered" for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta [(1997) 5 SCC 201 right from W.P.(C) No.10 of 2022

1950.

It was held that if a person satisfies the eligibility and zone criteria

but is not considered for promotion, then there will be a clear infraction

of his fundamental right to be "considered" for promotion, which is his

personal right. Seniority in service is closely interlinked with promotion

provided such a promotion is made after complying with the principle of

equal opportunity stated in Article 16(1). The right to equal opportunity

in the matter of promotion in the sense of a right to be "considered" for

promotion is indeed a fundamental right guaranteed under Article 16(1).

30. The Apex Court in Md Usman v. State of Andhra

Pradesh and Others [(1971) 2 SCC 188] has held that equality

doctrine is attracted not only when equals are treated as unequals but

also where unequals are treated as equals. It is also well recognised

that although Articles 14 and 16 of the Constitution forbid hostile

discrimination, they do not forbid reasonable classification and equality

of opportunity in matters of promotion which means equality as between

members of the same class of employees and not equality between the

members of separate and independent classes. (See All India Station

Masters' & Assistant Station Masters' Association v. General W.P.(C) No.10 of 2022

Manager, Central Railway [AIR 1960 SC 384]. By grouping together

persons who have been appointed under Section 7(5) with those

appointees under Section 7 (3), what the respondents have done is treat

unequals as equals. By treating unequals as equal, the petitioner has

been superseded and she has been unreasonably discriminated against

in violation to the guarantee of equality of opportunity guaranteed under

Articles 14 and 16 (1) of the Constitution.

31. After having found in favor of the petitioner on all counts,

what remains is the nature of relief that is to be granted to the

petitioner. The petitioner has sought for a declaration that Sub Statute

(13) in Part II and Sub Statute (16) in Part IV under Statute 38 of

Chapter 7 of the APJ AKTU First Statute is ultra vires Section 7 (5) of the

Act. I have already held that employees like the petitioner who have

exercised option under Section 7(5) of the Act before the notification of

the Statute could not have been treated as similar to the persons who

have exercised options under Section 7(3) of the Act insofar as their

seniority and service conditions are concerned as they form a separate

class of employees. To safeguard the situation, the seniority of the

pre-Statue employees (Section 7(5) appointees) are to be fixed in a fair W.P.(C) No.10 of 2022

and rational manner, based on their seniority in the parent service.

Insofar as the post-Statute employees are concerned, their seniority can

be fixed in accordance with the provisions of the Statute and the

Ordinance. The situation could have been saved if the respondents had

preserved clause 14 of Ext.P16 in Ext.P23 without deleting the same.

Having considered the facts in all perspectives, I am of the view that

interest of justice will be served if the relief sought for by the petitioner

is moulded to ensure that petitioner is held entitled for promotion to the

post of Assistant Registrar and above in the substantive vacancies based

on her seniority in service reckoned with reference to her service in the

M.G. University.

In that view of the matter, this Writ Petition is disposed of by

issuing the following directions.

(a) It is held that the petitioner having been appointed under Section 7(5) of the Act, only the Government will have powers to determine such appointment, transfer and the norms thereof.

(b) The respondents shall treat non-teaching staff like the petitioner who had been appointed under Section 7(5) of Act 17 of 2015 as a separate class for fixation of seniority. The appointees whose options have been invited in the light of Sub Statute (16) in Part W.P.(C) No.10 of 2022

IV under Statute 38 of Chapter 7 of the APJ AKTU First Statute shall be treated as a separate class and their seniority shall be reckoned in terms of the Statute and Ordinance of the University.

(c) The respondents 1 to 3 shall recast the seniority of appointees by following (b) above.

(d) I hold that deletion of clause 14 of Exhibit P16 in Exhibit P23 is illegal and violative of the rights guaranteed to the petitioner under Article 14 and Section 16(1) of the Constitution of India. To give effect to (b) and (c) above, the respondents 1 to 3 are directed to act in terms of Exhibit P23 by treating that Clause 14 of Exhibit P16 has not been deleted.

(e) The respondents 1 to 3 shall treat the petitioner as a regular employee of 2nd respondent University and is entitled for promotion to the posts of Assistant Registrar and above in the substantive vacancies based on her seniority in the parent service.

(f) The 2nd respondent shall finalize the seniority list based on the directions expeditiously, in any event, within 2 months from the date of receipt of a copy of this judgment.

Sd/-

RAJA VIJAYARAGHAVAN V, JUDGE PS/6/5/2022 W.P.(C) No.10 of 2022

APPENDIX OF WP(C) 10/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE GO(MS) NO.1/2016/H,EDN DATED 1.1.2016 ISSUED BY RESPONDENT NO.1.

Exhibit P2 TRUE COPY OF THE GO(MS) NO.174/2016/H,EDN DATED 06.08.2016 ISSUED BY RESPONDENT NO.1.

Exhibit P3 TRUE COPY OF THE CIRCULAR NO.KTU/A/333/2016 DATED 11.08.2016 ISSUED BY RESPONDENT NO.3.

Exhibit P4 TRUE COPY OF THE GOVERNMENT LETTER NO.33/359/2016/HEDN DATED 29.05.2017 ISSUED TO THE REGISTRAR OF APJAKTU.

Exhibit P5 TRUE COPY OF THE LETTER NO.AD.A1-249/2017 DATED 19.06.2017 ISSUED BY THE REGISTRAR, MAHATMA GANDHI UNIVERSITY.

Exhibit P6 TRUE COPY OF THE PROCEEDINGS NO.KTU/A/333/2016 DATED 24.07.2017 ISSUED BY THE 3RD RESPONDENT.

Exhibit P7 TRUE COPY OF THE PROCEEDINGS NO.KTU/AR/(ADMN)/251/2018 DATED 21.02.2018 ISSUED BY RESPONDENT NO.3.

Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 10.04.2018 IN WPC NO.25918 OF 2017.

Exhibit P9 TRUE COPY OF THE GO(MS) NO/309/2019/H.EDN DATED 03.09.2019 ISSUED BY RESPONDENT NO.1.

Exhibit P10 TRUE COPY OF THE JUDGMENT DATED 25.10.2019 IN WA NO.914 OF 2018.

W.P.(C) No.10 of 2022

Exhibit P11 TRUE COPY OF THE U O NO.720/2019/KTU DATED 06.12.2019 ISSUED BY RESPONDENT NO.2.

Exhibit P12 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 18.12.2019.

Exhibit P13 TRUE COPY OF U O NO.263/2020/KTU DATED 12.02.2020 ISSUED BY RESPONDENT NO.3.

Exhibit P14 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE RESPONDENT NO. 2 ON 13.02.2020.

Exhibit P15 TRUE COPY OF THE REPRESENTATION SUBMITTED BY

ON 27.07.2020.

Exhibit P16 TRUE COPY OF THE NOTIFICATION DATED 28.01.2021 BEARING NO.KTU/PATO REGISTRAR/43/2021 ISSUED BY RESPONDENT NO.3.

Exhibit P17 TRUE COPY OF THE LETTER NO.33177/AD A1-2/2021/AD A1 DATED 08.02.2021 ISSUED BY THE REGISTRAR OF MG UNIVERSITY TO RESPONDENT NO.3.

Exhibit P18 TRUE COPY OF THE OPTION SUBMITTED BY THE PETITIONER ON 15.02.2021.

Exhibit P19 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 12.03.2021 ALONG WITH THE ATTACHMENTS.

Exhibit P20 TRUE COPY OF THE MINUTES OF THE 21ST MEETING OF THE SYNDICATE OF APJAKTU HELD ON 12.04.2021.

Exhibit P21 TRUE COPY OF THE LETTER NO.GS6-1822/2021 DATED 23.07.2021.

W.P.(C) No.10 of 2022

Exhibit P22 TRUE COPY OF THE QUESTION AND ANSWERS ALONG WITH THE ATTACHMENTS, DATED 10.08.2021.

Exhibit P23 TRUE COPY OF THE CORRIGENDUM NOTIFICATION KTU/A/333/2016 ISSUED BY RESPONDENT NO.3 DATED 14.10.2021.

Exhibit P24 TRUE COPY OF THE LETTER NO.29563/AD-A1/2021/ADAI DATED 29.10.2021 ISSUED BY THE REGISTRAR OF THE M G UNIVERSITY TO RESPONDENT NO. 3 FORWARDING THE SAID OPTIONS.

Exhibit P25 TRUE COPY OF THE LETTER DATED 03.11.2021 SUBMITTED BY THE PETITIONER.

Exhibit P26 TRUE COPY OF THE LETTER NO.167165/AD-A1-4/2021/ADAI DATED 25.11.2021 GIVEN BY THE ASST. PUBLIC INFORMATION OFFICER, M G UNIVERSITY ALONG WITH THE ATTACHMENTS.

Exhibit P27 TRUE COPY OF THE LETTER NO.29563/AD-A1-1/2021/ADAI DATED 04.11.2021 ISSUED BY THE REGISTRAR OF THE M G UNIVERSITY TO RESPONDENT NO.3.

Exhibit P28 TRUE COPY OF THE G O (P) NO.343/2011/FIN DATED 11.08.2011.

Exhibit P29 TRUE COPY OF THE LETTER NO.J3/170/2021/H.EDN DATED 18.11.2021 ISSUED BY THE ADDL.CHIEF SECRETARY TO RESPONDENT. NO.3.