Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942 WP(C).No.719 OF 2017(L) PETITIONER: NETRA BAHADUR CHETRI AGED 51 YEARS LABORATORY ASSISTANT, SACRED HEART COLLEGE, THEVARA, KOCHI 682013 BY ADVS. SRI.T.B.HOOD SRI.AMAL KASHA SMT.M.ISHA RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695001 2 THE DIRECTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM 695001 3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION HOSPITAL ROAD, ERNAKULAM 682011 4 THE PRINCIPAL SACRED HEART COLLEGE, THEVARA, KOCHI 682013 BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.03.2021, ALONG WITH WP(C)744/2017(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942 WP(C).No.744 OF 2017 PETITIONER: BAM DEV SHARMA AGED 50 YEARS LABORATORY ASSISTANT, SACRED HEART COLLEGE, THEVARA, KOCHI 682 013. BY ADVS. SRI.T.B.HOOD SRI.AMAL KASHA SMT.M.ISHA RESPONDENTS: 1 STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPRUAM 695 001. 2 THE DIRECTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM 695 001. 3 THE DEPUTY DIRECTOR OF COLLEGATE EDUCATION HOSPITAL ROAD, ERNAKULAM 682 011. 4 THE PRINCIPAL SACRED HEART COLLEGE, THEVARA, KOCHI 682 013. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2021, ALONG WITH WP(C).719/2017(L), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
[ WP(C).Nos.719 & 744 of 2017] Dated this the 9th day of March 2021 The petitioners are Laboratory Assistants of Sacred Heart College, Thevara, a private aided colleges affiliated to Mahatma Gandhi University and had crossed the age of 50 years.
2. Learned counsel appearing on behalf of the petitioners
submitted that as per the proviso to statute 44(12) of Mahatma Gandhi University Statute 1997, continuance of the petitioners in the post of Library Assistants was subject to their passing in one of the five consecutive attenders' test conducted by Kerala Public Service Commission for the last grade staff of private colleges, thus, for all intends and purposes the attenders test conducted by the Public Service Commission would come within the purview of obligatory departmental test as explained in Rule 12(7) of Kerala Service Rules Part-I Chapter II. Statute No.72 of Mahatma Gandhi University Statute 1997 and the rules contained in Rules 1 and 2 of Kerala Service Rules apply to the non-teaching staff of private colleges. A conjoint reading of the statutes and the explanation makes it clear that the petitioners are permanently
exempted from passing the obligatory departmental test. Kerala Public Service Commission did not conduct the attenders test frequently as per the information received under the Right to Information Act. Vide Ext.P5 the reversion of the petitioners was ordered on account of having not undergone the attenders test. Such action was assailed in this Court and there is interim stay.
3. Rule 57 of the aforementioned statute also grant exemption from undergoing the obligatory test in case the employees are above the age of 50 years reliance of Rule as sought for by the respondents would not be applicable. Conditions enumerated in clause 44 of 72 would also not apply.
4. On the other hand Sri.B.Harishkumar, learned Government Pleader submitted that the aforementioned Rule
prescribes the qualifications to be appointed as Library Assistants/Laboratory Assistants and required to pass in Form III (Std.VII new) or equivalent and clear attender test conducted by Kerala Public Service Commission or five(5) years of regular service under Private Colleges, provided that the last grade staff who possess qualifications mentioned above except pass in
attender test and are in service, would be eligible for appointment in the order of seniority. Their continuance in Lab/Laboratory Assistant was subject to their pass in one of the five consecutive attender tests conducted by Kerala Public Service
commission. Government instructed the Director of Collegiate Education and Deputy Director of Collegiate Education to ensure strict compliance of the directions for reverting the petitioners. After the appointment of the petitioners, the Public Service Commission conducted test five times but the petitioners did not pass. Though the salary recieved by the unqualified hands need not be recovered, but their pay shall be required to be re-fixed if they had not been promoted and would definitely have effect on the pensionary benefits too. In this regard, a circular bearing No.E1/530/18 dated 21.02.2018 was issued by the Government. Petitioners cannot claim the exemption as sought for in view of the ratio decidendi culled from the Hon'ble Supreme Court in
Pramod Kumar v. UP Secondary Education Services Commission and Others [2008 (7) SCC 153] wherein it was
held that a person failed to have a qualification cannot be
promoted and urged this Court for dismissal of this writ petition.
5. I have heard the learned counsel for the parties and appraised the paper book.
6. Rule 44(12) of Part C of Mahatma Gandhi University
Statute 1997 deals with a minimum qualification for various categories of non-teaching staff in private colleges as SSLC or equivalent with pass the written test as conducted by Kerala Public Service Commission. The same reads as under:
12. Library Assistants/ SSLC or equivalent with a pass in
Laboratory Assistants Attender's Test conducted by the Kerala Public Service Commission. Technical qualification or experience required in the particular section, department or institution: 1) Pass in Form III (Std.VII new) or equivalent 2) Pass in Attender's Test conducted by the Kerala Public Service Commission or 1) Five years regular service under private Colleges 2) Pass in Attender's test conducted by the Kerala Public Service Commission
7. No doubt the petitioners while working as last grade
were promoted as library assistants but had to undergo the test which, as per the stand of the respondents, is being held by Kerala Public Service Commission. In one of the writ petitions,
W.P(C) No.15891/2015, a statement was made by the learned counsel that the petitioner regarding accord of benefit. The said writ petition is dismissed as infructuous. The Government cannot adopt pick and choose policy by granting the benefits to few and deny the same to others. I cannot remain unmindful of applicability of Rule 57 where the permanent exemption from test qualification has been granted, the same reads as under:
“Permanent exemption from test qualification:- All members of the non-teaching staff of private colleges who have attained the age of 50 years shall stand permanently exempted from passing the obligatory departmental tests as in the case of Government servants.” Rule 72 of the 1997 statute no doubt stipulates that Kerala Service Rules would be applicable to non-teaching staff but the one relied upon would not take away the right of the petitioners and exemption granted would not permit the respondents to revert the petitioners. The reversion orders are quashed. The writ petitions are allowed. Sd/- AMIT RAWAL JUDGE nak APPENDIX OF WP(C) 719/2017 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER DATED 27.04.2007 ISSUED BY THE 3RD RESPONDENT ALONG WITH
THE STATEMENT ANNEXED TO THE ORDER
EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 08.05.2015 SENT BY THE 3RD RESPONDENT TO THE COLLEGES EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 19.09.2016 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT EXHIBIT P4 TRUE COPY OF THE LETTER DATED 18.10.2016 SENT BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 13.12.2016 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT EXHIBIT P6 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 01.08.1995 EXHIBIT P7 TRUE COPY OF THE GOVERNMENT ORDER DATED 20.07.2015 EXHIBIT P8 TRUE COPY OF THE ORDER DATED 20.10.2015 IN WRIT PETITION (CIVIL) NO. 31896/2015 APPENDIX OF WP(C) 744/2017 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TREU COPY OF THE ORDER DATED 19.9.2012 ISUED BY THE 3RD RESPONDENT ALONG WITH
THE STATEMENT ANNEXED TO THE ORDER
EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 8.5.2015 SENT BY THE 3RD RESPONDENT TO THE COLLEGES EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 19.9.2016 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT EXHIBIT P4 TRUE COPY OF THE LETTER DATED 18.10.2016 SENT BY THE 4TH RESPONDET TO THE 3RD RESPONDENT EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 13.12.2016 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDER DATD 20.7.2015 EXHIBIT P7 TRUE COPY OF THE ORDER DATD 20.10.2015 IN WRIT PETITION (CIVIL NO. 31896/2015