Alex Benjamin v. State of Kerala & Director of Technical Education

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 4TH DAY OF JULY 2017/13TH ASHADHA, 1939** **OP(KAT).No. 206 of 2017 (Z) ---------------------------OA 2686/2016 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **---------** **PETITIONER :** **ALEX BENCHAMIN, HEAD OF SECTION, CENTRAL POLYTECHNIC COLLEGE, VATTIYOORKAVU, THIRUVANANTHAPURAM 695 013.** **BY ADV. SRI.S.MOHANDAS** **RESPONDENTS :** **1. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION [L] DEPARTMENT, THIRUVANANTHAPURAM 695 001.** **2. DIRECTOR OF TECHNICAL EDUCATION PADMAVILASOM ROAD, FORT P.O, THIRUVANATHAPURAM 695 023.** **R1 BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKUNAL** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 04-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **OP(KAT).No. 206 of 2017 (Z) ----------------------------** ## **APPENDIX** |**PETITIONER(S)' EXHIBITS**|| |---|---| |**-----------------------**|| |**EXHIBIT P1: COPY OF ORDER DATED 30.5.17 IN OA**|| |**2686/2016.**|| |**EXHIBIT P2: COPY OF OA 2686/2016.**|| |**EXHIBIT P3: COPY OF REPLY STATEMENT**|**FILED IN THE OA BY**| |**IST RESPONDENT.**|| |**EXHIBIT P4: COPY OF G.O[RT]NO.374/2016.H.EDN.**|| |**RESPONDENT(S)' EXHIBITS**<br>**:**|**NIL.**| ||**//TRUE COPY//**| ||**P.A. TO JUDGE**| ## **bp** ## **P.R.RAMACHANDRA MENON & SHIRCY.V., JJ.** **................................................. O.P.(KAT) No. 206 of 2017 ...............................................** Dated this the 4[th] day of July, 2017 ## **JUDGMENT** ## **RAMACHANDRA MENON, J** The grievance of the petitioner is against the interference declared by the Kerala Administrative Tribunal by passing Ext.P1 order, rejecting the claim for promotion as Principal, in Government and aided Polytechnic Colleges, in conformity with the verdict passed by the Full Bench of this Court reported in **Radhakrishna Pillai v. Travancore Devaswom Board [2016 (2) KLT 245 FB]** . 2. The petitioner entered in the service of the 2[nd] respondent on 14.03.1984 as a Workshop Instructor and was subsequently promoted to the post of Assistant Lecturer in the year 1987. While working so, he acquired the qualification of B.Tech (Civil) and was promoted as Lecturer on 19.09.1996 and was elevated to further post 'SD Head' of the Section (subsequently renamed as Head of the Department ) on 18.07.2003. The petitioner is still continuing in the said post. 3. The sequence of events narrated in this original petition is that, O.P.(KAT) No. 206 of 2017 2 by virtue of his B.Tech Degree, the petitioner was eligible to be promoted to the post of Principal in terms of Annexure A5 Special Rules. The credentials of the petitioner were considered and he was short listed as borne by Annexure A1; where, he was ranked at Serial No.9. It is also pointed out that, all the persons in front of him, i.e., upto 8 were promoted but, because of the shortage of vacancies, he could not be promoted to the post in question. Thereafter, AICTE Scheme as per G.O.(MS) No.75/2014/Fin dated 20.02.2014 was accepted by the Government as per G.O.(P) No.880/2014/H.Edn. dated 10.11.2014. This was with intent to grant higher pay scales based on higher qualifications and according to the petitioner, it had nothing to do with the promotion based on Annexure A5 Special Rules. This is more so, since, even at the time of preparation of Annexure A1 list on 10.11.2014, the AICTE Scheme was already there, having introduced by the Government as per Order dated 20.02.2014 with effect from 01.7.2013. The claim preferred by the petitioner, however, came to be declined; which made the petitioner to approach the Tribunal by filing the O.A. with the following prayers. “ 1) Call for the records lending to Annexure A.7 dated 15.11.2016 and to quash the portion that adversly affected this Applicant. ii) to direct the st respondent to promote the Applicant to the post of Principal, Govt. Polytechnic College from the date on which his juniors in Annexure A3 order dated 4.05.2014 were promoted to that post, and to disburse O.P.(KAT) No. 206 of 2017 3 the consequential monetary benefits thereof, expeditiously, since he is due for his superannuation on 31.07.2017. And iii) to direct the respondents to pass such other order as may be required in this case to ensure that justice is not denied to the Applicant. 4. It was contended before the Tribunal that, in so far as Annexure A5 Special Rules were not amended, the petitioner was entitled to get the benefit of promotion as Principal based on his B-Tech qualification and as such, the respondent department was not justified in rejecting the said claim. This was sought to be rebutted by the respondents by placing reliance on the verdict passed by the Full Bench of this Court in **Radhakrishna Pillai's** **case (cited supra)** wherein it is clearly held that, once a Scheme is accepted by the Government (there, the UGC Scheme) stipulated the qualification and the pay scale, the nonamendment of the Special Rules was never to be a hurdle with regard to the implementation of the Scheme in toto. Reliance was placed on the said verdict and the O.A. was dismissed, which in turn is under challenge in this original petition. 5. Learned counsel submits that the verdict passed by the Full Bench was with reference to the implementation of the UGC Scheme and Regulations and the said verdict does not have any application so far as the petitioner's case is concerned. The learned counsel further submits that, similar benefit has already O.P.(KAT) No. 206 of 2017 4 been extended by the Government in respect of other similarly situated persons, which is sought to be substantiated with reference to Ext.P4 produced along with the original petition. 6. Learned Government Pleader appearing for the respondents submits that the idea and understanding of the petitioner is thoroughly wrong and misconceived. It is stated that the particular nature of the Scheme as dealt with by the Full Bench in **Radhakrishna Pillai's case (cited supra)** , no way varies the position with regard to the implementation of AICTE Scheme as applicable in the present case. The law declared by the Full Bench is with regard to the acceptance of the Scheme as such by the Government, by issuing a Government Order. Normally, the law is settled that the Rules formulated by the Government cannot be altered by way of Executive orders, but once a Scheme as such is accepted by the Government, such acceptance notified as per the relevant orders will govern the field; which is the law declared by the Full Bench. As per the said verdict, the law declared earlier to the contrary, by this Court as reported in **S.N.College v. N.Raveendran [2001 (3) KLT 938]** was overruled. 7. In the present case, there is no dispute with regard to the fact that the AICTE Scheme envisages higher qualifications for the O.P.(KAT) No. 206 of 2017 5 post of Principal and higher pay scale is also provided therein. There cannot be two separate streams; one for Principals having higher qualification and the other for Principals having lesser qualification. The Scheme as such having been accepted by the Government as per Order dated 20.02.2014 with effect from 01.07.2013, the qualification stipulated for holding the post of Principal will govern the situation. Merely for the reason that the petitioner was enlisted in Annexure A1 at one point of time, by itself, is not a ground for the petitioner to contend anything contrary. He stands outside the purview of the Scheme accepted by the Government and he can't be promoted to the post of Principal without possessing the qualifications, even on a lower pay scale. We find absolutely no merit in the Original Petition. 8. That apart, reliance sought to be placed on Ext.P4 also does not come to the rescue of the petitioner in any manner. Exhibit-P4 does not reveal that the persons named therein were persons having only lesser qualification than the qualification prescribed by the AICTE. It only says that the persons concerned were placed on a lower scale and as per the letter issued by the Director, the said persons were entitled to get the higher scale prescribed by the AICTE. In the said circumstance, it does not support the petitioner. Even if there was some mistake in having passed the said order [if it is contrary to the mandate of the O.P.(KAT) No. 206 of 2017 6 AICTE Scheme] giving favours wrongly to somebody, the mistake cannot be perpetuated by issuing any writ of mandamus, as 'equality' is a positive concept, to be established with respect to the vested rights. We find support from the ruling rendered by the Supreme Court reported in **Chandigarh Administration and others v. Jagjith Singh and others** [ **AIR 1995 SC 705]** . There is no merit in this original petition and it is dismissed accordingly. Sd/- **P.R.RAMACHANDRA MENON, JUDGE** **sd/SHIRCY.V., JUDGE** AMV/05/07/2017