Kerala High Court
The Secretary To Government, Health And vs L.R.Arunadevi on 10 October, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque, Murali Purushothaman
OP(KAT) No.288/2018 1/5 Order Date : 10-10-2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
Thursday, the 10th day of October 2024 / 18th Aswina, 1946
OP(KAT) NO. 288 OF 2018
AGAINST THE ORDER DATED 14.07.2017 IN TA NO. 5905/2012 OF KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS IN T.A:
1. THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE/EDUCATION
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.
2. THE ACCOUNTANT GENERAL A & E OFFICE OF THE ACCOUNTANT GENERAL,
STATUE JUNCTION, THIRUVANANTHAPURAM, KERALA-695006.
RESPONDENT/APPLICANT IN T.A:
L.R.ARUNADEVI, AGED 52 YEARS, L.R.ARUNADEVI, D/O.R.RAGHAVAN,
ASSOCIATE PROFESSOR IN MEDICO SOCIOLOGY, MEDICAL COLLEGE,
THIRUVANANTHAPURAM, KERALA-695011.
OP Kerala Administrative Tribunal praying inter alia that in the
circumstances stated in the affidavit filed along with the OP(KAT) the
High Court be pleased to set aside Annexure VIII order dated 14.07.2017 in
T.A.No.5905/2012 on the file of the Kerala Administrative Tribunal,
Thiruvananthapuram, pending disposal of the above Original Petition
(KAT).
This petition coming on for orders upon perusing the petition and
the affidavit filed in support of OP(KAT) and upon hearing the arguments
of GOVERNMENT PLEADER for the petitioners,and of SRI.P.NANDAKUMAR,
Advocate for the respondent, the court passed the following:
OP(KAT) No.288/2018 2/5 Order Date : 10-10-2024
A.MUHAMED MUSTAQUE & MURALI PURUSHOTHAMAN, JJ.
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Dated this the 10th day of October, 2024
REFERENCE ORDER
A.Muhamed Mustaque, J.
The Government of Kerala issued an executive order
to implement the revised AICTE scales to the teaching staff of
the Medical Education Department with effect from 01.01.1996.
This executive order was passed on 16.06.2000. Clause IV of
the above order refers to the career advancement which reads
thus:
"IV. Career Advancement. - (a) Senior Lecturers
who have PG Degree in the speciality concerned
and also have 5 years of (Physical) teaching
experience will be promoted as Assistant
Professors in the scale of pay of Rs.12000-
18300."
2. A co-ordinate Division Bench considered the
above clause in W.A.No.1021 of 2010. This was in the context
of the insistence of teaching experience of the teachers to claim
career advancement. The dispute in that case was whether a
OP(KAT) No.288/2018 3/5 Order Date : 10-10-2024
teacher, who has availed earned leave and other leave
including Leave Without Allowance (LWA), is entitled to
count the period of leave for the purpose of career
advancement. The Division Bench, interpreting Rule 77 of
Part I of Kerala Service Rules (KSR), held that the period of
absence referred under Rule 77 applies to a teacher in
continuous service. Therefore, any stipulation in an
executive order that contradicts the statutory rules cannot
be given effect.
3. We have serious doubts about the
proposition of law laid down by the Division Bench
judgment. Part I KSR relates to the regulation of the
service of Government employees in the State and does not
contemplate to cover the matters consequent upon
implementation of schemes by the AICTE or UGC under the
parliamentary legislation. If the rules are framed under the
authority granted to the State concerning State subjects,
any executive orders issued implementing Union subjects
operating in a different sphere can be said to run counter to
the rules made under the State.
OP(KAT) No.288/2018 4/5 Order Date : 10-10-2024
4. We find that the following points need to be
placed before the Full Bench:
1) Do the rules framed under Part I of the
KSR contemplate to cover provisions beyond the fields
earmarked to the State.
2) Whether the executive order issued by
the Government implementing the AICTE/UGC scheme can
be considered as contrary to or repugnant to the rules
made by the State covering field of subject earmarked for
the State.
Considering the points of law involved as above,
we place this matter before the Honourable the Chief
Justice for referral to the Full Bench.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE
Sd/-
MURALI PURUSHOTHAMAN, JUDGE
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OP(KAT) No.288/2018 5/5 Order Date : 10-10-2024
APPENDIX OF OP(KAT) 288/2018
ANNEXURE VIII PHOTOCOPY OF THE ORDER DATED 14.07.2017 IN
T.A.NO.5905/2012.
