Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 22ND DAY OF JULY 2022 / 31ST ASHADHA, 1944 WP(C) NO. 29543 OF 2021 PETITIONER: MUHAMMED SHIHAB K AGED 40 YEARS S/O MUHAMMED ALI, CLERK, SULLAMUSSALAM SCIENCE COLLEGE, AREEKODE, MALAPPURAM DISTRICT-673639. BY ADVS. V..MUHAMMED M.SAJJAD P.A.JENSIA RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM- 695001. 2 THE DIRECTOR OF COLLEGIATE EDUCATION VIKAS BHAVAN, THIRUVANANTHAPURAM-695033. 3 THE MANAGER SULLAMUSSALAM SCIENCE COLLEGE, AREEKODE, MALAPPURAM DISTRICT-673639. OTHER PRESENT: ADV P C SASIDHARAN -SC & ADV PARVATHY K -GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2022, ALONG WITH WP(C).1739/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 22ND DAY OF JULY 2022 / 31ST ASHADHA, 1944 WP(C) NO. 1739 OF 2022 PETITIONER: REENA P.C, AGED 38 YEARS LOWER DIVISION CLERK, MAR THOMA COLLEGE, CHUNGATHARA P.O., PIN-679334. BY ADV JOSHI N.THOMAS RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY TO HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, P.M.G. JUNCTION, THIRUVANANTHAPURAM- 695033. 3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, MANANCHIRA, KOZHIKODE-673001. 4 THE PRINCIPAL, MAR THOMAS COLLEGE, CHUNGATHARA-679334. 5 THE MANAGER, MAR THOMA COLLEGE, MAR THOMA DIOCESAN CENTRE, MAKKADA P.O., VIA KAKKODE, KOZHIKODE-673617. 6 UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., THECHIPALAM, MALAPPURAM DISTRICT, PIN-673635, REPRESENTED BY ITS REGISTRAR. BY ADVS. C.V.ALEXANDER SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY ABHAY FERDINAND
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.07.2022, ALONG WITH WP(C).29543/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The petitioners in these cases - being heard together
because the edifice of the pleadings are common and the reliefs sought for identical - are stated to have been working as Office Attendant and Lab Assistant; and assert that they were given promotion to the post of Lower Division Clerks (LDC) by their respective managements, being fully qualified and eligible to be granted such benefit. They say that, however, when the proposals of the Management were placed before the Director of Collegiate Education, said Authority rejected them saying that their promotions were irregular since they did not have the minimum required service in the lower category for such
purpose. The petitioners say that the afore opinion of the Director of Collegiate Education is on account of a misinterpretation of the relevant Regulations; and therefore, that Ext.P9 in W.P.(C)No.1739/2022 and Exts.P9 and P10 in W.P.(C)No.29543/2021 are illegal and liable to be set aside.
2. I have heard Sri. Joshy N Thomas - learned counsel for the petitioner in W.P.(C)No.1739/2022; Smt.P.A.Jensia -
learned counsel for the petitioner in W.P.(C)No.29543/2021; Sri.Babu Varghese - learned Senior Counsel, instructed by Sri.Abhay Ferdinand, appearing for the Management in W.P. (C)No.1739/2022; Sri.P.C.Sasidharan - learned Standing Counsel for the Calicut University and Smt.Parvathy K., learned Government Pleader appearing for the official respondents.
3. The controversy projected in these cases is in a very narrow compass.
4. The sole question is whether petitioners were eligible to be promoted as Lower Division Clerks, even though they did not have five years service in their earlier posts as Office Attendant or Lab Assistant respectively.
5. For the sake of clarity, I record that the petitioner in W.P.(C)No.1739/2022 was earlier working as a Lab Assistant; while the petitioner in W.P.(C)No.29543/2021 was working as an Office Attendant.
6. The qualifications for the members of Non-Teaching
Staff as far as the Colleges affiliated to the Calicut University are governed by Statute 41 of the Calicut University First Statues, 1979 (hereinafter referred to as the “First Statutes” for short). Going by Statute 41(5) thereof, promotion to the post of Lower Division Clerks/Lower Division Store Keepers/Lower Division Accountants can be made from the post of Peons and Laboratory Assistants, having a lower scale of pay than LDC with five years service, along with SSLC and a pass in the clerical test conducted by the Kerala Public Service Commission
(KPSC). However, the proviso to this Statute then carves an exception, saying that non-clerical staff, namely Library/ Laboratory Assistants and Peons (which is the same as Office Attendant), as also certain Technical Staff like Gasman, Specimen Collectors etc., who are matriculates and are either in the regular permanent service or have put in three years service as on 31.03.1971, are eligible for appointment, in the
order of their seniority, as LDCs.
7. The petitioners rely upon the proviso to say that since
they were in regular permanent service of the respective Colleges in which they were working as Laboratory Assistant and Office Attendant respectively, they were fully eligible to be granted promotion as LDC, as has been done by the managements.
8. I, therefore, asked Sri.P.C.Sasidharan - learned
Standing Counsel for the University, about his views on the afore Statute. He explained that the substantive proviso to the Statute 41(5) of the “First Statutes” provides for the minimum qualifications required for the promotion to the post of LDC, but conceded that the proviso renders it ineluctable even that non- clerical staff and certain technical staff, enumerated therein, who are in regular permanent service, would also be eligible to be appointed as LDCs de hors the requirement of five years service.
9. Smt.Parvathy K. - learned Government Pleader, submitted that the Director of Collegiate Education was acting as per the substantive proviso to Statute 41(5) of the “First
Statutes”; and that since the petitioners, admittedly, did not have five years service, they were directed to be reverted, which the management appears to have done, by issuing subsequent orders. She, therefore, prayed that these writ petitions be dismissed.
10. Sri.Babu Varghese - learned Senior Counsel, instructed by Sri.Abhay Ferdinand, submitted that his client had initially granted promotion to the petitioner in W.P. (C)No.1739/2022; but that on being intimated by the Director of Collegiate Education to the effect that this was wrong, a subsequent order was issued reverting her as Laboratory Assistant. He, however, imputed that the petitioner does not abide by the same, but in still signing the register as Lab Assistant. He prayed that, therefore, no further orders be issued against his client.
11. When I asses the afore submissions and in particular
those made by Sri.P.C.Sasidharan above, it is evident that the substantive proviso to Statute 41(5) mandates that person in the categories of posts enumerated therein will require to have a minimum of five years service for being promoted as L.D.Clerks. However, the proviso thereto makes an exception in the case of Non-Clerical Staff and certain Technical Staff specified therein and provides that they can be granted
promotion as L.D.Clerks even without five years service, provided they are in regular permanent service.
12. Since it is admitted that the petitioners in these cases are in regular permanent service of respective managements, I cannot find impugned orders of the Director of Collegiate Education to be worthy in law. Resultantly, I order these writ petitions and set aside Ext.P9 in W.P.(C)No.1739/2022, as also Exts.P9 and P10 in W.P. (C)No.29543/2021; and direct the Director of Collegiate Education to reconsider the proposals made before him by the
managements for approval of their promotions as LDCs; thus culminating in an appropriate fresh order and necessary action thereon, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Needless to say, as a corollary to the above, all the orders of the Managements issued reverting the petitioners subsequent to the afore quashed proceedings of the Director of Collegiate Education will also stand set aside.
Sd/- DEVAN RAMACHANDRAN JUDGE ANB APPENDIX OF WP(C) 29543/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE PETITIONER DATED 13.09.2017. Exhibit P2 TRUE COPY OF THE ORDER NO.G2-368/00/NTS DATED 30.08.2019 OF THE MANAGER. Exhibit P3 TRUE COPY OF THE PROMOTION ORDER OF THE PETITIONER DATED 01.10.2018. Exhibit P4 TRUE COPY OF THE CIRCULAR NO.E1/43599/2017/DCE DATED 24.11.2018 OF THE DIRECTOR ALONG WITH ENGLISH TRANSLATION. Exhibit P5 TRUE COPY OF THE CIRCULAR NO.E1/32192/2019/DCE DATED 23.09.2019 OF THE DIRECTOR ALONG WITH ENGLISH TRANSLATION. Exhibit P6 TRUE COPY OF THE GO (RT) NO.2020/2018/H.EDN DATED 07.11.2018 OF THE GOVERNMENT ALONG WITH ENGLISH TRANSLATION. Exhibit P7 TRUE COPY OF THE LETTER NO.D3/166/2020/H.EDN DATED 02.11.2020 OF THE GOVERNMENT ALONG WITH ENGLISH TRANSLATION. Exhibit P8 TRUE COPY OF THE CIRCULAR NO.F1/24797/2020/DCE DATED 19.11.2020 OF THE 2ND RESPONDENT ALONG WITH ENGLISH TRANSLATION. Exhibit P9 TRUE COPY OF THE LETTER NO. F2/39949/2019/DCE DATED 05.01.2021 OF THE 2ND RESPONDENT ALONG WITH ENGLISH TRANSLATION. Exhibit P10 TRUE COPY OF THE LETTER D3/98/2021/H,EDN DATED 02.08.2021 OF THE GOVERNMENT ALONG WITH ENGLISH TRANSLATION. Exhibit P11 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.4486/2019 DATED 18.03.2019
Exhibit P12 TRUE COPY OF THE ORDER
NO.F5/36579/2019/DCE DATED 08.07.2021 OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION APPENDIX OF WP(C) 1739/2022 PETITIONER EXHIBITS Exhibit P1 COPY OF SECONDARY SCHOOL LEAVING CERTIFICATE FOR THE YEAR MARCH, 1998 ISSUED TO THE PETITIONER BY THE SECRETARY BOARD OF PUBLIC EXAMINATION, KERALA. Exhibit P2 COPY OF CERTIFICATE IN VOCATIONAL HIGHER SECONDARY COURSE DATED 24.5.2000 ISSUED BY THE SECRETARY STATE BOARD OF VOCATIONAL HIGHER SECONDARY EXAMINATION, KERALA. Exhibit P3 COPY OF TRAINED TEACHERS CERTIFICATE DATED 15.10.2009 ISSUED BY THE SECRETARY BOARD OF PUBLIC EXAMINATION, KERALA.
Exhibit P4 COPY OF APPOINTMENT ORDER
MTC/NTS/APPT/05/2018 DATED 21.5.2018 ISSUED BY THE MANAGER, MAR THOMA COLLEGE, CHUNGATHARA.
Exhibit P5 COPY OF ORDER APPROVING THE PROMOTION OF
PETITIONER WITH EFFECT FROM 3.6.2019
ISSUED BY THE DEPUTY DIRECTOR OFCOLLEGIATE EDUCATION, THIRUVANANTHAPURAM. Exhibit P6 COPY OF CERTIFICATE DATED 21.8.2020 ISSUED BY THE KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM. Exhibit P7 COPY OF ORDER NO.E1/32192/2019/DCE DATED 23.9.2019 ISSUED BY THE 2ND RESPONDENT.
Exhibit P8 COPY OF APPOINTMENT ORDER
NO.M.T.C./OFFICIAL/(PROMOTION)01/21 DATED 1.6.2020 ISSUED BY THE 5TH RESPONDENT. Exhibit P9 COPY OF ORDER NO.F5/46652/2019/DCE DATED 15.7.2021 ISSUED BY THE 2ND RESPONDENT. Exhibit P10 COPY OF APPLICATION FILED BY ONE CHERIAN THOMAS 22-01-2022 TO THE STATE PUBLIC INFORMATION OFFICER, OFFICE OF THE 2ND RESPONDENT UNDER THE PROVISIONS OF RIGHT TO INFORMATION ACT 2005. Exhibit P11 COPY OF REPLY NO.E1/3164/2020/DCE DATED 31-01-2020 RECEIVED FROM THE PUBLIC INFORMATION OFFICER FROM THE OFFICE OF THE 2ND RESPONDENT.