Kerala High Court
The State Of Kerala vs Joboy Mathew on 27 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 27TH DAY OF JANUARY 2023 / 7TH MAGHA, 1944
WA NO. 1393 OF 2022
AGAINST THE JUDGMENT DATED 13.09.2021 IN WP(C) 1873/2015
OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS 1 & 2 IN W.P.(c):
1 THE STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER
EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION
KOTTAYAM, PIN - 686001
BY ADV.A.J.VARGHESE SR. GOVERNMENT PLEADER
RESPONDENTS/PETITIONER & RESPONDENTS 3 TO 5 IN W.P.(c):
1 JOBOY MATHEW,
RETIRED LECTURER (SENIOR SCALE), DEPARTMENT OF
CHEMISTRY, ST.ALOYSIUS COLLEGE, EDATHUA,
ALAPPUZHA DISTRICT, RESIDING AT PALAPPARAMBIL,
ANAPRAMBAL, SOUTH P.O., THALAVADI VILLAGE,
ALAPPUZHA DISTRICT - 689 572
2 MAHATMA GANDHI UNIVERSITY,
REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI
HILLS P.O., ATHIRAMPUZHA, KOTTAYAM - 686560
3 MANAGER,
ST.ALOYSIUS COLLEGE, EDATHUA,
ALAPPUZHA DISTRICT, PIN - 689573
4 PRINCIPAL
ST.ALOYSIUS COLLEGE,EDATHUA,
ALAPPUZHA DISTRICT - 689573
W.A. No.1393 of 2022 2
ADV.S.P.ARAVINDAKSHAN PILLAY
ADV.SURIN GEORGE IPE, SC, M.G.UNIVERSITY
ADV.N.SANTHA
ADV.V.VARGHESE
ADV.PETER JOSE CHRISTO
ADV.S.A.ANAND
ADV.K.N.REMYA
ADV.VISHNU V.K.
ADV.ABHIRAMI K. UDAY
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
27.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. No.1393 of 2022 3
P.B.SURESH KUMAR & C.S.SUDHA, JJ.
-----------------------------------------------
Writ Appeal No.1393 of 2022
-----------------------------------------------
Dated this the 27th day of January, 2023
JUDGMENT
P.B.Suresh Kumar, J.
This appeal is directed against the judgment dated
13.09.2021 in W.P.(C) No.1873 of 2015. Respondents 1 and 2 in
the writ petition are the appellants. Parties and documents are
referred to in this judgment for convenience, as they appear in
the writ petition.
2. The petitioner was appointed as Lecturer in a
regular vacancy in an aided private college affiliated to the
Mahatma Gandhi University (the University) on 01.06.1995.
Prior to the said appointment, he had worked in the college in
leave vacancies twice as Junior Lecturer and five times as
Lecturer. The duration of four out of the five leave vacancies in
which the petitioner had worked in the college as Lecturer were
less than one year. In terms of G.O.(P) No.171/1999/H.Edn
dated 21.12.1999 issued by the State Government for
implementing the 1998 Scheme of the University Grants
Commission, a Lecturer is entitled to be placed in the senior
scale on completion of six years service. The said order of the
Government is part of the records in the writ appeal as
Annexure A2. The petitioner was placed in the senior scale by
the University with effect from 06.05.1993, a date anterior to
the date of the regular appointment of the petitioner. The said
placement was based on a proposal made by the College,
reckoning the six years service rendered by him as Junior
Lecturer as also Lecturer in leave vacancies. Ext.P10 is the
order order issued by the University in this regard on
23.03.2012. The said placement of the petitioner was objected
to by the concerned Deputy Director of Collegiate Education on
the ground that a teacher cannot be placed in senior scale
before his appointment in a regular vacancy. The objection was
based on Ext.P12 order of the Government. The University, in
the circumstances, issued a communication to the College
requesting to re-submit the proposal for grant of placement to
the petitioner in the senior scale with effect from 01.06.1995,
the day on which he was appointed in a regular vacancy.
Ext.P11 is the communication issued by the University to the
College in this regard. The petitioner challenged Ext.P11
communication in W.P.(C) No.27992 of 2012. The said writ
petition was disposed of by this Court as per Ext.P14 judgment
directing the University to take a final decision in the matter.
Ext.P15 is the decision taken by the University in this regard. As
per Ext.P15, the University cancelled Ext.P10 decision and
placed the petitioner in the senior scale with effect from
01.06.1995. Ext.P15 decision of the University was under
challenge in the writ petition. The case set out by the petitioner
is that it is in light of Ext.P12 order of the Government that his
placement in senior scale was shifted to 01.06.1995; that
Ext.P12 order cannot have retrospective operation and
therefore, Ext.P15 decision of the University is illegal. The
learned Single Judge quashed Ext.P15 order and directed the
respondents to give effect to Ext.P10 order, taking the stand
that Ext.P12 order cannot have retrospective effect. The State
and the concerned Deputy Director of Collegiate Education who
are Respondents 1 and 2 in the writ petition, are aggrieved by
the said decision of the learned Single Judge and hence this
appeal.
3. Heard the learned Senior Government Pleader
for the appellants, the learned Standing Counsel for the
University as also the learned counsel for the petitioner.
4. The learned Senior Government Pleader
contended that the petitioner is not entitled to reckon the
services rendered by him as Junior Lecturer as also as Lecturer
in leave vacancies, the duration of which are less than one
year, for claiming placement in the senior scale in terms of
Annexure A2 Government Order and that he is entitled to
reckon only the service rendered by him in the leave vacancy
from 02.06.1989 to 29.03.1994 i.e., 4 years, 9 months and 28
days for claiming placement in the senior scale. If that be so,
according to the learned Senior Government Pleader, the
petitioner can claim placement in senior scale only after
completing the remaining period after his regular appointment.
The submission of the learned Government Pleader, in the
circumstances, was that the petitioner is not entitled to
placement in the senior scale even with effect from 01.06.1995
as proposed by the University. According to the learned Senior
Government Pleader, the learned Single Judge, in the
circumstances, was not justified in directing the State to
sanction and disburse the benefits of placement in the senior
scale to the petitioner with effect from 06.05.1993.
5. Per contra, the learned counsel for the
petitioner contended that in light of Ext.P9 order issued by the
Government, the petitioner is entitled to placement in the
senior scale reckoning the previous service rendered by him,
irrespective of the nature of appointment and duration of the
vacancies. According to the learned counsel, at any rate, insofar
as the State and its officials have not raised any objection in the
writ petition against the placement of the petitioner in the
senior scale with effect from 1.6.1995, they cannot be heard to
contend in the appeal that the petitioner is not entitled to
placement in the senior scale even with effect from 1.6.1995.
6. We have considered the submissions made by
the learned counsel for the parties on either side.
7. There cannot be any doubt to the fact that the
right of teachers to claim placement in the senior scale and
selection grade is based on the orders issued by the
Government from time to time for giving effect to the Schemes
of the University Grants Commission. In other words,
placements can be claimed only in accordance with the orders
issued by the Government. As noted, Ext.P10 is the order
issued by the University initially placing the petitioner as
Lecturer in the senior scale with effect from 06.05.1993. The
Government Order referred to in Ext.P10 is Annexure A2.
Clause 7 of Annexure A2 order deals with the previous services
to be reckoned for placements. Clause 7 of Annexure A2 order
reads thus:
"7.1 COUNTING OF PAST SERVICE
Previous service, without any break as a Lecturer or
equivalent, in a University, college, national Laboratory, or
other scientific organisation, e.g. CSIR, ICAR, DRDO, UGC,
ICSSR, ICHR and as a UGC Research Scientist, should be
counted for placement of lecturer in Senior Scale/Selection
Grade provided that:
7.2 The post was in an equivalent grade/scale of Pay as the
post of Lecturer,
7.3 The qualifications for the post were not lower than the
qualifications prescribed by the UGC for the post of
Lecturer,
7.4 The Candidates who apply for direct recruitment should
apply through proper channel;
7.5 The concerned Lecturers possessed the minimum
qualifications prescribed by the UGC for appointment as
Lecturers;
7.6 The post was filled in accordance with the prescribed
selection procedure as laid down by the University/State
Government/Central Government/Institution's regulations.
7.7 The appointment was not ad-hoc or in a leave vacancy of
less than one year duration. Ad-hoc service of more than
one year duration can be counted provided -
(a) the ad-hoc service was of more than one year duration;
(b) the incumbent was appointed on the recommendation of
duly constituted Selection Committee; and
(c) the incumbent was selected to the permanent post in
continuation to the ad-hoc service, without any break."
It is evident from Clause 7 of Annexure A2 extracted above that
only previous service in an equivalent grade/scale of pay as the
post of Lecturer is liable to be reckoned for placements.
Similarly, it is specifically provided therein that service in leave
vacancies of less than one year duration is not liable to be
reckoned for placements. In light of Annexure A2 order, it can
be seen that the petitioner is entitled to reckon only the service
rendered by him in the leave vacancy for the period from
02.06.1989 to 29.03.1994 i.e., 4 years, 9 months and 28 days,
for claiming placement in the senior scale. If that be so, he can
claim placement in the senior scale only after completing the
remaining period after the regular appointment. Needless to
say, the petitioner is not entitled to placement in the senior
scale either with effect from 6.5.1993 as given to him as per
Ext.P10 order or with effect from 1.6.1995 as proposed by the
University in Ext.P11 communication.
8. As indicated, the argument advanced by the
learned counsel for the petitioner is that in light of Ext.P9 order,
the petitioner is entitled to reckon the service rendered by him
in leave vacancies prior to his appointment in the regular
vacancy, irrespective of the nature of appointment and duration
of vacancies. The materials on record indicate that when the
UGC scheme was implemented in the State for the first time,
the benefits of the same were not extended to all teachers in
affiliated colleges. Instead, the Government bifurcated the
college teachers as 52% coming under the UGC Scheme and
48% not coming under the UGC Scheme and extended the
benefits of the UGC scheme only to those teachers who fall
under the 52% category. It is seen that later in terms of G.O.
(MS)No.27/91/H.Edn dated 14.02.1991, Government directed
that all the college teachers appointed on permanent posts on
regular basis coming under the 48% category and who were in
service as on 1.4.1990 will be eligible for salary benefits as per
the UGC scales then in force with effect from 1.4.1990 as and
when they complete eight years of service, subject to the
condition under UGC Scheme. The aforesaid fact is referred to
in Ext.P9 order, the relevant portion of which reads thus:
"In the Government Order read as 1 st paper above
Government ordered that all the College Teachers appointed on
permanent posts on regular basis coming under 48% and who
were in service as on 1-4-90 will be eligible for salary benefits
as per U.G.C. scales with effect from 1-4-90 as and when they
complete 8 years of service subject to the condition under
U.G.C Scheme.
2. Government are now pleased to order that
teachers who were appointed on temporary vacancies prior to
13-3-90 and who have been regularised against permanent
vacancies thereafter can be considered for U.G.C. benefits and
that their previous service including broken service can be
counted for calculating service for placements.
3. The G.O. read above stands modified to the above
extent".
As evident from Ext.P9 order, the same is one issued modifying
the order dated 14.02.1991 referred to therein, directing that
teachers who were appointed on temporary vacancies prior to
13.03.1990 and who have been regularized against permanent
vacancies thereafter can be considered for UGC benefits and
their previous services including broken service can be counted
for calculating service for placements. Ext.P9 order, in the
circumstances, can only be one issued extending the benefit
under G.O.(MS)No.27/91/H.Edn. dated 14.2.2991 to teachers
who were appointed in temporary vacancies prior to 13.3.1990
and who have been regularised against permanent vacancies
thereafter also. As far as the present case is concerned, as
noted, the question is as to whether the petitioner is entitled to
the benefits of the subsequent UGC scheme implemented in the
State in terms of Annexure A2 order. Ext.P9 order issued by the
Government prior to Annexure A2 for the purpose of extending
limited benefits under the earlier UGC scheme to the category
of teachers who were not covered by the said scheme cannot
be pressed into service by the petitioner to claim the benefit of
placement provided for in Annexure A2, contrary to its terms.
The argument advanced by the learned counsel for the
petitioner based on Ext.P9 order, in the circumstances, is liable
to be rejected and we do so.
9. Having said that, since the petitioner is not
entitled to placement in senior scale either with effect from
6.05.1993 as given to him in terms of Ext.P10 order or with
effect from 1.06.1995 as proposed by the University in Ext.P11
communication, the question remaining to be considered is as
to whether the petitioner is entitled to any relief in the writ
petition. We have formulated such a question as we find that
the only objection raised by the State in the writ petition
against grant of senior scale to the petitioner is that he is not
entitled to senior scale before his regular appointment in light
of Ext.P12 order of the Government. To be precise, it was not
contended by the State in the writ petition that the petitioner is
not entitled to placement in senior scale even with effect from
01.06.1995 as proposed by the University in Ext.P11
communication. Ext.P12 order is one issued by the
Government on 20.07.2012, whereas Ext.P10 order is one
issued by the University on 23.03.2012. No doubt, Ext.P12
order cannot have retrospective operation at any rate, as it is
mentioned in the said order itself that the practice in vogue in
the State till then was to grant senior scale placements by
counting the service in leave vacancies before coming to
substantive vacancies also and that the Government has
honoured such placements by extending to the incumbents
concerned the monetary benefits consequent thereto. Had this
been a case where the incumbent completed six years in terms
of Clause 7 of Annexure A2 order before his regular
appointment, this Court would have held certainly that Ext.P12
cannot be pressed into service to deny the incumbent the
benefit of the placement in light of the previous practice. But,
as found, the petitioner is not entitled to placement in the
senior scale prior to his regular appointment as he does not
have the requisite service as provided for in Clause 7 of
Annexure A2 order. There is nothing on record to indicate that
anyone similarly placed like the petitioner who is not entitled to
reckon the services rendered in leave vacancies in the same
post or in other posts, the duration of which is less than one
year, has been extended the benefit of placement in the senior
scale. Even if anyone has been given such a benefit, the same
being contrary to Annexure A2 order, the petitioner cannot
claim the benefit of the same. In other words, this is a case
where the petitioner is not entitled to placement in the senior
scale before his appointment in a regular vacancy and as such,
even if Ext.P12 order cannot have retrospective effect, the
petitioner cannot claim the benefit of previous practice for
placement in the senior scale. Insofar as the issue is as to the
entitlement of the petitioner to senior scale, as it is found that
the petitioner is not entitled to senior scale with effect from the
date on which he is claiming senior scale, the petitioner cannot
be granted any relief in the writ petition.
10. However, insofar as grant of senior scale to the
petitioner with effect from 1.06.1995 was not objected to by the
State in the writ petition and since there was no adjudication in
the writ petition as to whether the petitioner is entitled to senior
scale with effect from 01.06.1995, we are of the view that it
would be inequitable to deny the petitioner the said benefit in
the writ petition filed by the petitioner.
In the result, the writ appeal is allowed, the
impugned judgment is set aside and the writ petition is
dismissed. It is, however, made clear that the petitioner is
entitled to the benefit of the senior scale with effect from the
date of his appointment in the regular vacancy.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
C.S.SUDHA, JUDGE.
YKB
APPENDIX
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE RELEVANT PAGES OF G.O.
(P)NO.79/90/H.EDN DATED 27.03.1990
Annexure A2 TRUE COPY OF THE RELEVANT PAGES OF
G.O(P)NO.171/1999/H.EDN DATED
21.12.1999
Annexure A3 TRUE COPY OF THE JUDGMENT IN WA
470/2008 DATED 16.06.2008
