Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 5TH DAY OF JULY 2023 / 14TH ASHADHA, 1945 WP(C) NO. 12371 OF 2020 PETITIONERS:
1 JAYAKRISHNAN N.K., LOWER DIVISION CLERK, SREE SANKARA VIDYAPEETOM COLLEGE, VALAYANCHIRANGARA, PERUMBAVOOR, ERNAKULAM. 2 N. PARVATHY, LOWER DIVISION CLERK, SREE SANKARA VIDYAPEETOM COLLEGE, VALAYANCHIRANGARA, PERUMBAVOOR, ERNAKULAM. 3 RAKESH P.K., LOWER DIVISION STORE KEEPER, SREE SANKARA VIDYAPEETOM COLLEGE, VALAYANCHIRANGARA, PERUMBAVOOR, ERNAKULAM. BY ADVS. DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS (ERNAKULAM) SRI.K.SUDHINKUMAR SRI.S.K.ADHITHYAN SRI.SABU PULLAN SRI.GOKUL D. SUDHAKARAN
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM-695033. 3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM-695033. 4 THE MANAGER, SREE SANKARA VIDYAPEETOM COLLEGE,
VALAYANCHIRANGARA, PERUMBAVOOR, ERNAKULAM- 683556. SRI V VENUGOPAL-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2023, ALONG WITH WP(C).2717/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 5TH DAY OF JULY 2023 / 14TH ASHADHA, 1945 WP(C) NO. 2717 OF 2021 PETITIONER: 1 JOHN K JOHN LOWER DIVISION CLERK, BISHOP MOORE COLLEGE, MAVELIKKARA-690 110. 2 SIBI JOHN LOWER DIVISION STORE KEEPER, BISHOP MOORE COLLEGE, MAVELIKKARA-690 110. BY ADVS. BABU VARGHESE (SR.) SRI.C.V.ALEXANDER SRI.ABHAY FERDINAND RESPONDENTS:
1 THE MANAGER BISHOP MOORE COLLEGE, MAVELIKKARA-690 110. 2 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3 THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM-695 003. 4 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION KOLLAM-691 001. 5 MATHEW MATHEW LIBRARY ASSISTANT, BISHOP MOORE COLLEGE, MAVELIKKARA-690 110. 6 SIBY GOERGE LAB ASSISTANT, BISHOP MOORE COLLEGE, MAVELIKARA-690 110. 7 ANOOP JOHN LAB ASSISTANT, BISHOP MOORE COLLEGE, MAVELIKKARA, 690 110.
8 GEORGE JOHN LIBRARY ASSISTANT, BISHOP MOORE COLLEGE, MAVELIKKARA, 690 110. 9 SANTHOSH P. JOHN LAB ASSISTANT, BISHOP MOORE COLLEGE, MAVELIKKARA, 690 110. BY ADVS. SRI.A.SHAFEEK (KAYAMKULAM) ELVIN PETER P.J. K.R.GANESH SIDHARTH SUDHEER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.07.2023, ALONG WITH WP(C).12371/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 'C.R'
JUDGMENT
The petitioners in these two cases - which are hypostatised on similar factual assertions and seek similar reliefs - are persons who were directly recruited as Lab Assistants in the services of “Bishop Moore College, Mavelikkara” and “Sree Sankara Vidyapeetom College, Perumbavoor”.
2. As per “The Conditions of Service of Teachers and
Members of Non Teaching Staff - First Statutes, 1979 of the University of Kerala, (hereinafter referred to as “First Statutes” for short), the qualifications requisite for a person to be appointed as a Laboratory Assistant is either a pass in Standard VII or equivalent, or five years of regular service in private colleges; along with pass in “Attenders Test”, conducted by the Public Service Commission.
3. It is undisputed that, for every candidate who is
appointed as a Laboratory Assistant, three chances are granted statutorily to pass the “Attenders Test”, and that if this is done, then they would retain the seniority in the said post, notwithstanding that somebody else had cleared the same earlier.
4. While so, positions of Lower Division Clerk (LDC)
either arose or were created in the respective Colleges, and the petitioners were all promoted to the same by the Managements, nevertheless that they had not yet cleared the “Attenders Test” mentioned above.
5. This is the genesis of the controversy in this case
because, the statutory Educational Authorities, including the Government, took the stand that only those who had cleared the “Attenders Test” while being a Lab Assistant, could be considered for promotion as LDC and to be granted it.
6. Resultantly, Ext.P20 order in WP(C) No.2717/2021
was issued, wherein, promotions of the petitioners therein were denied approval; while Ext.P11 was issued as regards the petitioners in WP(C) No.12371/2020, setting aside their
order of approval of promotions to such post, earlier granted.
These orders are now impugned.
7. I have heard Sri.Babu Varghese - learned Senior
Counsel, instructed by Sri.Abhay Ferdinand, appearing for the petitioners in WP(C) No.2717/2021; Sri.SudhinKumar - learned counsel for the petitioner in WP(C) No.12371/2020, Sri.K.R.Ganesh appearing for the respondents in WP(C) No.2717/2021 and Sri.V.Venugopal - learned Government Pleader appearing or the official respondents in all these cases
8. As evident from the afore narrative of facts, the
crucial question for consideration is whether the promotion of the petitioners in these two cases as LDC by the respective managements, even before they had cleared the “Attenders Test” in the post of Laboratory Assistant, is improper or otherwise.
9. For an evaluation of the afore issue, one must certainly have a look at Chapter III of the “First Statutes”, particularly Clauses 41(12) and 41(5) thereof; which are extracted below for such purpose:
“Section Lower Division S.S.L.C. or equivalent qualification
41(5) Clerk/Lower and with a pass in the Manual of
Division Store Office Procedure for earning, the third
Keeper/Lower increment. [The non-clerical staff like
Division Library/ Laboratory Assistants,
Accountant Gasmen/Specimen Collectors, LastGrade Staff who have 5 years service with S.S.L.C. and have passed the Clerical Test conducted by the Public Service Commission may be promoted on the basis of common seniority in Lower cadre. Herbarium Keeper/Taxidermist who have 3 years service with S.S.L.C. and have passed the Clerical Test conducted by the
Public Service Commission may be promoted on the basis of common seniority in the lower cadre. Lower Division Typists with S.S.L.C. and have passed Clerical Test conducted by the Public Service Commission may be promoted on the basis of common seniority in the lower cadre]. Qualified hands if available, shall be given preference before recruiting persons from outside:
Section 41(12) Laboratory For appointment by transfer from
Assistant/Library members of Last Grade Staff and
Assistant specimen collectors employed in thePrivate College/Colleges.
1. Pass in Form III (Std VII new) or equivalent
2. Pas sin Attenders Test conducted by the Kerala Public Service Commission OR
Five years regular Service under Private Colleges. Pass in Attenders Test conducted by the Kerala Public Service Commission. [ Provided that the last grade staff who possess the qualifications mentioned above excepting pass in Attender's test and who were either in service on 31- 03-1971 or who are in regular permanent service will be eligible for appointment continuance as [Laboratory Assistants/Library Assistants) shall however be subject to their passing in one of the five consecutive Attender's Tests conducted by the Kerala Public Service Commission for the last grade staff and speciman collectors] of Private Colleges). Such of those who remain unqualified in the Attender's test even after five consecutive chances shall be reverted to their original posts [and those who entered in service prior to 1-
9-1972 shall be exempted from passing the Attenders Test]
Provided further that those who have been appointed as '[Laboratory Assistant/Library Assistants] before 16.1.1975 by direct recruitment by Provided the Educational Agencies concerned for want of qualified hands for promotion from among the last grade servants shall continue as such subject to the condition that they pass the eligibility test which the Kerala Public Service Commission may conduct in accordance with such orders as the Government may issue.”
10. The former clause deals with Laboratory Assistant/Library Assistant; while the latter with Lower Division Clerk/Lower Division Store Keeper/Lower Division Accountant.
11. As far as Laboratory Assistant/Library Assistant is
concerned, the imperative qualification required is either a pass in Standard VII, or five year regular service in Private Colleges; coupled with a pass in the 'Attenders test' conducted by the Kerala Public Service Commission.
12. When it comes to the Lower Division Clerk/Lower
Division Store Keeper/Lower Division Accountant, promotion from the category of Laboratory Assistant is also stipulated, with an additional condition that their continuance in such position shall be subject to passing in one of the four consecutive annual competitive tests conducted by the Kerala Public Service Commission for low paid employees.
13. Obviously, therefore, the requirement to pass the “Attenders Test” is a sine qua non for confirmation in the post of Laboratory Assistant and not in the post of LDC.
14. In the cases at hand, it is without contest that
petitioners are educationally qualified, but that they did not clear their “Attenders Test”, until such time as they were promoted as LDC. But it is also pertinent that they had only attended two chances of such Test and had one more available to them, at the time when their promotions were considered and granted.
15. Axiomatically, the vital issue that ought to have
engaged the minds of the educational Authorities, as also the Government, was whether a person who was working as a Laboratory Assistant, but without having passed the “Attenders Test”, would loose seniority for that reason, thus enabling their juniors to obtain a march over them for the purpose of promotion to LDC, or to the contrary.
16. As I have said above, the requirement for passing
the “Attenders Test” is an imperative one only for the post of Laboratory Assistant and not for LDC. Admittedly, there is nothing in the applicable provisions or in the First Statutes, which render it imperative that only a person who has cleared the “Attenders Test” in the post of Laboratory Assistant be considered for promotion to that of LDC. In fact, even the learned Government Pleader expressly acceded to this, but argued that has to be so read in the “First Statutes”.
17. I am afraid that the afore argument of the learned
Government Pleader cannot find my favour because, when the seniority of persons in the post of Laboratory Assistant cannot be altered solely because some of them had cleared the “Attenders Test” later, obviously, their chances of promotions can also be not affected for this reason alone.
18. When it is without any dispute - it being expressly
admitted - that all the petitioners had necessary qualifications for being promoted as LDC, albeit, they not having cleared the “Attenders Test” while working as Laboratory Assistants, it will be impermissible to hold that they would loose their seniority and that their juniors in the seniority list of Laboratory Assistants would obtain a march over them for this sole reason.
19. That apart, it is today submitted by the learned
Senior Counsel and counsel for the petitioners that their clients, save one, have now passed the Attenders Test in the third chance. I am, therefore, of the firm view that, as regards those petitioners who have now cleared the “Attenders Test” through their third chance, their promotions as LDC will have to be approved and granted imprimatur.
20. Before I conclude, I notice that In W.P.
(C)No.2717/2021 the petitioners were promoted as per Exhibits P7 and P7(a), but that the Deputy Director refused concurrence to it through Exhibit P8 saying that they had not completed five years of service at that time. It is on record that the petitioners then submitted Exhibit P9 representation, leading to Exhibits P10 and P10(a) promotion orders being issued, after completion of five years in service.
21. The learned Senior Counsel for the petitioner
argued that, in fact, Exhibit P8 was improper because, going by the afore extracted provisions of chapter 3 of the First Statutes, his clients were required to have either a pass in Standard VII or five year regular service in private colleges, along with a pass in Attender's Test. He argued that his clients had already passed the 8th standard when they were initially appointed and therefore, could not have been denied promotion solely for the reason that they had not completed five years regular service. He thus prayed that petitioners in these writ petitions be directed to grant approval by the competent authority from the date of their initial appointment.
22. When I examine the afore request, it is ineluctable
that the statutory qualifications only stipulate that a candidate either have passed Standard VII or completed five years of regular service in private colleges. Since the respondents also concede that the petitioners in W.P. (C)No.2717/2021 had passed Standard VII even when they were initially appointed, one fails to understand why their promotions had been interdicted saying that they had not completed five years of regular service. In fact, the learned Government Pleader Sri.V.Venugopal conceded that since the petitioners had passed Standard VII, it was sufficient as per the First Statutes In the afore circumstances, I allow these Writ Petitions and set aside Ext.P20 in WP(C) No.2717/2021 and Ext.P11 in WP(C) No.12371/2020; however, solely as regards those petitioners who have now cleared the “Attenders Test” through third chance. Axiomatically, the promotions of such petitioners shall be approved by the Competent Authority from the date of such promotions within a period of one month from the date of receipt of this judgment. It is, however, clarified that while the afore is done, the rights of the party respondent in WP(C) No. 2717/2021, as reflected in Ext.P20 therein, would not be affected, though he would not obtain any seniority over the qualified petitioners therein, either in the post of Laboratory Assistant or in the post of LDC. As regards the petitioner who has not cleared the “Attenders Test” as of today, namely the third one in WP(C) No.12371/2020, he will be allowed to continue provisionally in the post of LDC consequent to his promotion, but will be granted salary and benefits only in the scale of Laboratory Assistant; and his approval will be considered only after he clears the “Attenders Test” through third permissible chance. Should he not clear it then, obviously, the consequences of reversion will apply, as is warranted in law. Sd/-DEVAN RAMACHANDRAN, JUDGE anm/lsn APPENDIX OF WP(C) 2717/2021 PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER
DATED 15.9.2011 ISSUED BY THE IST RESPONDENT TO THE IST PETITIONER.
EXHIBIT P1(A) TRUE COPY OF THE APPOINTMENT ORDER
DATED 15.9.2011 ISSUED BY THE IST RESPONDENT TO THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE ORDER
NO.F4/53649/2011/COLL.EDN. DATED 19.7.2012 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P3 TRUE COPY OF THE GOVERNMENT LETTER VIDE NO.26040/D3/2009/H.EDN. DATED 11.2.2011. EXHIBIT P3(A) TRUE COPY OF THE NOTIFICATION APPEARED IN MALAYALA MANORAMA ON 15.6.2011. EXHIBIT P4 TRUE COPY OF THE PROVISIONAL CERTIFICATE IN M.A. DEGREE ISSUED BY THE UNIVERSITY OF KERALA TO THE IST PETITIONER DATED 17.3.2017.
EXHIBIT P4(A) TRUE COPY OF THE P.S.C CERTIFICATE OF QUALIFYING THE MANUAL OF OFFICE PROCEDURE TEST ISSUED TO THE IST PETITIONER, DATED 11.4.2014. EXHIBIT P4(B) TRUE COPY OF THE P.S.C CERTIFICATE OF PASSING ACCOUNT TEST (LOWER) ISSUED TO THE IST PETITIONER, DATED 29.5.2017. EXHIBIT P4(C) TRUE COPY OF THE P.S.C CERTIFICATE OF PASSING ACCOUNT TEST (HIGHER) ISSUED TO THE IST PETITIONER. EXHIBIT P5 TRUE COPY OF THE S.S.L.C, CERTIFICATE ISSUED TO THE 2ND PETITIONER. EXHIBIT P5(A) TRUE COPY OF THE PRE-DEGREE CERTIFICATE ISSUED TO THE 2ND PETITIONER DATED 10.8.2002. EXHIBIT P5(B) TRUE COPY OF THE CERTIFICATE OF P.S.C MANUAL OF OFFICE PROCEDURE TEST, ISSUED TO THE 2ND PETITIONER, DATED 4.4.2014. EXHIBIT P5(C) TRUE COPY OF THE CERTIFICATE OF TYPERWRITING ENGLISH AND COMPUTER WORD PROCESSING (LOWER GRADE), DATED 21.11.2002. EXHIBIT P5(D) TRUE COPY OF THE CERTIFICATE OF
TYPEWRITING (ENGLISH) AND COMPUTER WORD PROCESSING (HIGHER GRADE) DATED 28.5.2003, ISSUED TO THE 2ND PETITIONER.
EXHIBIT P6 TRUE COPY OF THE FINAL SENIORITY LIST OF NON-TEACHING STAFF DATED 19.9.2016. EXHIBIT P7 TRUE COPY OF THE PROMOTION ORDER IN RESPECT OF IST PETITIONER DATED 31.12.2014. EXHIBIT P7(A) TRUE COPY OF THE PROMOTION ORDER IN RESPECT OF 2ND PETITIONER DATED 31.8.2015. EXHIBIT P8 TRUE COPY OF THE LETTER DATED 23.6.2016 CANCELLING/REJECTING THE PROMOTIONS GRANTED TO THE IST PETITIONER. EXHIBIT P8(A) TRUE COPY OF THE LETTER DATED 23.6.2017 CANCELLING/REJECTING THE PROMOTIONS GRANTED TO THE 2ND PETITIONER. EXHIBIT P9 TRUE COPY OF THE PROPOSAL DATED 26.4.2018 ADDRESSED TO THE 3RD RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE PROMOTION ORDER
ISSUED TO THE IST PETITIONER DATED 18.9.2016.
EXHIBIT P10(A) TRUE COPY OF THE PROMOTION ORDER
ISSUED TO THE 2ND PETITIONER DATED 18.9.2016. EXHIBIT P11 TRUE COPY OF THE RELEVANT PAGE OF KERALA UNIVERSITY FIRST STATUTES.
EXHIBIT P12 TRUE COPY OF THE CLARIFICATION ORDER
NO.E1/32192/2019/DCE DATED 23.9.2019. EXHIBIT P13 TRUE COPIES OF R.T.I. APPLICATION DATED 16.2.2016 SUBMITTED BY THE 2ND PETITIONER IN RESPECT OFKARMELA RANI TRAINING COLLEGE. EXHIBIT P13(A) TRUE COPY FOT HE REPLY DATED 18.2.2016 OBTAINED BY THE 2ND PETITIONER UNDER RTI ACT. EXHIBIT P14 TRUE COPY OF THE RTI APPLICATION DATED 21.6.2016 SUBMITTED IN RESPECT OF CHRISTIAN COLLEGE, CHENGANOOR. EXHIBIT P14(A) TRUE COPY OF THE REPLY DATED 8.7.2016 OBTAINED UNDER RTI ACT. EXHIBIT P15 TRUE COPY OF THE INITIAL APPROVAL OF
APPOINTMENT OF THE OFFICIALS AS LAB ASSISTANT DATED 11.12.2017 ISSUED BY DEPUTY DIRECTOR OF THE COLLEGIATE EDUCATION.
EXHIBIT P15(A) TRUE COPY OF THE ORDER DATED 28.12.2019 WITH ANNEXED STATEMENT ISSUED BY DEPUTY DIRECTOR OF THE COLLEGIATE EDUCATION. EXHIBIT P16 TRUE COPY OF THE ORDER OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION DATED 20.5.2020. EXHIBIT P17 TRUE COPY OF THE ORDER OF THIS HON'BLE COURT DATED 24.7.2020 IN WPC EXHIBIT P18 TRUE COPY OF THE REPRESENTATION DATED 8.7.2020 SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. EXHIBIT P19 TRUE COPY OF THE JUDGMENT DATED 4.11.2020 IN WPC NO.21125/2020 OF THIS HON'BLE COURT. EXHIBIT P20 TRUE COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 27.1.2021 VIDE
ORDER NO.G.O.(RT) NO.144/2021/HEDN.
EXHIBIT P21 TRUE COPY OF THE QUESTIONS UNDER THE RIGHT TO INFORMATION ACT DATED 5.10.2020. EXHIBIT P21(A) TRUE COPY OF THE ANSWERS UNDER THE RIGHT TO INFORMATION ACT OBTAINED FROM THE 3RD RESPONDENT DATED 14.10.2020. RESPONDENTS EXHIBITS: EXT.R5(a): TRUE COPY OF THE PROCEEDINGS NO.F4/53650/2011/COLL.EDN.DATED 26.04.2012 OF THE 4TH RESPONDENT WITH TYPED COPY.
EXT.R5(b): TRUE COPY OF THE ORDER
NO.F4/53649/2011/COLL.EDN.DATED 19.07.2012 OF THE 4TH RESPONDENT.
EXT.R5(c): TRUE COPY OF THE ORDER
NO.15865/D3/125/H.EDN.DATED 04.06.2012 ISSUED BY THE GOVERNMENT.
EXT.R5(d): TRUE COPY OF THE RELEVANT EXTRACT OF THE RESULT OF THE ATTENDERS TEST IN CATEGORY NO.146/2013 CONDUCTED BY THE PUBLIC SERVICE COMMISSION DATED
19.09.2017 IN THE EXAMINATION CONDUCTED ON 07.07.2016. APPENDIX OF WP(C) 12371/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE 1ST PETITIONER DATED 12/01/2015 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 12/01/2015 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE APPOINTMENT ORDER OF THE 3RD PETITIONER DATED 12/01/2015 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED
EXHIBIT P5 TRUE COPY OF THE ORDER
NO.F2/15607/2016/COLL. EDN. DATED RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE APPOINTMENT ORDER
GIVEN TO THE 1ST PETITIONER BY THE 4TH RESPONDENT DATED 01/07/2017.
EXHIBIT P7 TRUE COPY OF THE APPOINTMENT ORDER
GIVEN TO THE 2ND PETITIONER BY THE 4TH RESPONDENT DATED 01/07/2017.
EXHIBIT P8 TRUE COPY OF THE APPOINTMENT ORDER
GIVEN TO THE 3RD PETITIONER BY THE 4TH RESPONDENT DATED 01/07/2017.
EXHIBIT P9 TRUE COPY OF THE ORDER
NO.F2/9792/2019/DCE DATED 28/12/2019 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P10 TRUE COPY OF THE CIRCULAR ISSUED BY THE 2ND RESPONDENT DATED 23/09/2019.
EXHIBIT P11 TRUE COPY OF THE ORDER
NO.F2/9792/2019/DCE DATED 20/05/2020 ISSUED BY THE 3RD RESPONDENT. Exhibit -P12 TRUE COPY OF THE NOTIFICATION ISSUED BY P.S.C. IN RESPECT OF CATEGORY NO. RESPONDENTS EXHIBITS: NIL TRUE COPY P.A TO JUDGE LSN