B. Samiha v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932** **WP(C).No. 29898 of 2005(H)** **----------------------------------** ## **PETITIONER(S):** - **-------------------** **B.SAMIHA, AGED 45 YEARS, W/O.A.USMAN SAHIB, LIBRARIAN GRADE III, T.K.M.COLLEGE OF ARTS AND SCIENCE, KARIKODE P.O. KOLLAM.** **BY ADV. SRI.P.M.MOHAMMED SHIRAZ** ## **RESPONDENT(S):** **--------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, HIGHER EDUACTION DEPARTMENT, GOVERNMENT SECRETRARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM.** **4. THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGITRAR, THIRUVANANTHAPURAM.** **R1 TO R3 BY GOVT.PLEADER SMT.P.M.MARY R4 BY ADVS. SRI.S.GOPAKUMARAN NAIR, SC KERALA UTY. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **svs** ## **WP(C).No. 29898/2005(H)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: COPY OF DEGREE CERTIFICATE SERIAL NO.54 DATED 28/09/1995 ISSUED BY INDIRA GANDHI NATIONAL OPEN UNIVERSITY.** - **P2: COPY OF LETTER DATED 14/07/1998 OF PRINCIPAL.** - **P3: COPY OF PROCEEDING DATED 23/11/1998 OF VICE CHANCELLOR.** - **P4: COPY OF ORDER OF PROMOTION DATED 30/11/1998.** - **P5: COPY OF ORDER NO.ESTT. EI (1)62868/99/COLL.EDN. DATED 08/09/1999.** - **P6: COPY OF LETTER NO.F3/11384/03/DEPT.OF C.E./L.DIS DATED 07/07/2004.** - **P7: COPY OF LETTER NO.AC.C 8567/04 DATED 17/04/2004.** - **P8: COPY OF REPRESENTATION OF PETITIONER.** - **P9: COPY OF ORDER NO.G..O.MS. NO.526/PD DATED 17/07/1965.** - **P10: COPY OF LETTER NO.F1-8/92 (CPP) DATED FEBRUARY, 1992 OF UNDER SECRETARY, UGC.** ## **RESPONDENT'S EXHIBITS NIL** ## **/TRUE COPY/** ## **P.A. TO JUDGE** ## **svs** ## **C.T.RAVIKUMAR, J.** --------------------------------------W.P(C)No.29898 of 2005 ---------------------------------------Dated 3[rd] September, 2010 ## **JUDGMENT** The petitioner commenced her service under the TKM College of Arts and Science, Kollam as Librarian Grade IV on 1.8.1986. On 1.6.1993 a retirement vacancy occurred in Librarian Grade III cadre. The petitioner was not qualified for promotion to the post of Librarian Grade III on 1.6.1993, the date of occurrence of the vacancy. The petitioner acquired qualification on 1.12.1994. As per Ext.P4, the petitioner was promoted as Librarian Grade III with effect from 1.12.1994 and the order of appointment was forwarded for approval to the third respondent. However, the third respondent as per Ext.P5 approved the promotion of the petitioner as Librarian Grade III only with effect from 23.11.1998, the date of order of the Vice Chancellor based on the decision of the Academic Council. The petitioner has submitted a representation against the action in restricting the approval with effect from 23.11.1998. Ext.P6 was passed thereon by the second respondent. As per Ext.P6, it was held that the promotion of the petitioner with retrospective effect could not be approved and the proposal along with related documents were returned. It is obvious from Ext.P6 that such a WP(C).No.29898/2005 2 decision was taken by the second respondent based on Ext.P7 letter dated 17.4.2004 of the Registrar of the fourth respondent University. This writ petition has been filed challenging Exts.P5 and P7 and for a consequential declaration that the petitioner is entitled to be promoted as Librarian Grade III with effect from 1.12.1994, the date on which she acquired the qualification for promotion to the post of Librarian Grade III. 2. The learned counsel appearing for the petitioner brought to my attention the statute relevant for the purpose of deciding the issue involved in this writ petition, viz., Statute 42(3) of the Kerala University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes, 1979. The qualifications for the post of Librarian Grade III have been prescribed under the said statute. The relevant portion of Statute 42(3) reads thus: _“Graduation and Degree or Diploma in Library Science.”_ Based on the same, it is contended that the qualification prescribed for the post of Librarian Grade III is only Graduation and Degree or Diploma in Library Science. There is no dispute with respect to the fact that the petitioner is a graduate. She is in possession of Ext.P1 certificate in the Degree of Bachelor in Library and Information Science awarded by the Indira Gandhi National Open University (IGNOU). Exts.P3 and P7 would WP(C).No.29898/2005 3 reveal that the Bachelor's Degree in Library and Information Science of IGNOU was recognised as a sufficient qualification for the limited purpose of promotion from the post of Librarian Grade IV to Librarian Grade III by the Academic Council of the fourth respondent University as per resolution dated 7.11.1998. Ext.P3 is dated 23.11.1998. It is based on Ext.P3 that initially the appointment of the petitioner was approved with effect from 23.11.1998. As noticed hereinbefore, the claim of the petitioner is that she is entitled to get her promotion as Librarian Grade III approved with effect from 1.12.1994, the date on which she acquired the Bachelor's Degree in Library and Information Science awarded by IGNOU. Ext.P7 would reveal that the stand of the University is that the petitioner is entitled to get her promotion approved only with effect from 7.11.1998, that is, the date of the meeting of the Academic Council. Obviously, it is based on Ext.P7 that the second respondent took the decision that the petitioner was not entitled to get her promotion approved with retrospective effect, that is, from 1.12.1994. The above discussions would reveal that the question to be decided in this writ petition is whether the petitioner is entitled to get her promotion approved with effect from 1.12.1994 or whether the decision of the second respondent that the petitioner is entitled to such promotion only with effect from WP(C).No.29898/2005 4 7.11.1998 is to be sustained. For deciding the aforesaid question, a scanning of the relevant provision in the statute as extracted above is essential. A bare perusal of Statute 42(3) would reveal that the qualifications prescribed for Librarian Grade III is Graduation and Degree or Diploma in Library Science. In the said circumstances, the question is whether the objections raised by the respondents to deny the petitioner approval of her appointment as Librarian Grade III with effect from 1.12.1994 is legal or not. As noticed earlier, the contention of the petitioner is that as long as the prescribed qualification is only possession of Graduation and a Degree or Diploma in Library Science and the petitioner satisfies the twin conditions as on 1.12.1994, there is no reason or justification for declining approval of her promotion as Librarian Grade III with effect from the said date. 3. The second respondent has filed a counter affidavit in this writ petition. The other respondents did not file counter affidavits. The second respondent supported the finding in Ext.P6 relying on Ext.P7 and in that context it is stated in the counter affidavit that the University of Kerala had clarified that the benefit of recognition of the degree possessed by the petitioner could be granted only with effect from 7.11.1998, that is, the date of meeting of its Academic Council. In short, WP(C).No.29898/2005 5 the stand of the second respondent is that the petitioner is not entitled to get her promotion approved with effect from a date anterior to 7.11.1998. The essence of the contentions raised by the second respondent in the counter affidavit is that Ext.P1 qualification possessed by the petitioner could be recognised as a qualification for the purpose of promotion only with effect from 7.11.1998, that is, the date on which the Academic Council of the fourth respondent university recognised the same for that purpose. In other words, according to the second respondent, in the absence of recognition of the degree possessed by the petitioner, the petitioner cannot legally claim any benefit based on the said degree obtained by her from IGNOU. The learned counsel for the petitioner submitted that the said stand of the second respondent based on Ext.P7 is absolutely unsustainable in the light of the relevant provision under Statute 42(3) and in the light of the decisions of this Court in _**Mohanan Nair**_ v. _**State of Kerala**_ (1994(2) KLT 537) and _**Muraleedharan**_ v. _**State of Kerala**_ (2001 (2) KLT 779). A perusal of Statute 42(3) would reveal that there is nothing therein which would suggest that the qualification of Graduation and Degree or Diploma in Library Science should be one which is a recognised or declared as equivalent by any of the Universities in Kerala. In that view of the matter and also in view of WP(C).No.29898/2005 6 the contentions of the petitioner, Exts.P9 and P10 assume relevance. As per Ext.P9 Government order dated 17.7.1965 it was ordered that `Other Degrees and Diplomas awarded by statutory Universities established by an Act of the Central or State Legislature or by other Institutions of higher learning recognised as Universities by the Central University Grants Commission, should be recognised.' Ext.P10 would reveal that the University Grants Commission has recognised the degrees and diplomas awarded by the IGNOU, that has been established by sub-section (2) of Section (1) of the IGNOU Act, 1985. It is stated therein as hereunder: _“The Certificates, diplomas and degrees awarded by Indira Gandhi National Open University are to be treated equivalent to the corresponding awards of the Universities in the country.”_ Now, the contention of the petitioner is that in the light of Exts.P9 and P10 the respondents could not have declined approval to the promotion of the petitioner with effect from 1.12.1994. A perusal of the relevant statute as extracted above would reveal that it enjoins no condition that a Graduation and Degree or Diploma in Library Science should be one recognised as equivalent by Universities in Kerala. In the light of Exts.P9 and P10 and also in the light of Statute 42(3) I am of the considered view that there is no justification in reading anything into Statute 42(3) to make an addition to Statute 42(3). Statute 42(3) has to be read as it is. WP(C).No.29898/2005 7 Such a reading would not and could not accept the interpretation given to it by the respondents. In other words, it would reveal that for the purpose of approving the promotion of the petitioner the authorities could legally look into only one question, that is, whether she was a graduate and possessed Degree or Diploma in Library Science as on the date on which she was granted promotion. Indisputably the petitioner was a graduate and she possessed the Degree in Library Science awarded by IGNOU as on 1.12.1994. It is the interpretation that the said degree possessed by the petitioner was recognised only on 7.11.1998, that approval was declined to be granted with effect from 1.12.1994 and it was restricted with effect from 7.11.1998. The aforesaid provisions, viz. the above extracted statute and Exts.P9 and P10 would undoubtedly reveal the unsustainability of the said stand of the respondents. I am of the considered view that the subsequent action on the part of the Academic Council in recognising the degree possessed by the petitioner would reveal that it is a degree that was awarded by a University. In fact, in the light of Ext.P10, the authority of IGNOU to award such a degree cannot be disputed at all. In short, as on 1.12.1994 the petitioner was a graduate and a degree holder in Library Science. I am fortified in my view by the decision of this Court in _**Muraleedharan**_ v. _**State of Kerala**_ WP(C).No.29898/2005 8 (supra). The result of the discussions is that Exts.P5 and P7 are liable to be quashed and accordingly they are quashed. The second respondent is directed to approve the appointment of the petitioner as Librarian Grade III with effect from the date on which she was promoted as per Ext.P4 with effect from 1.12.1994 and to grant consequential benefits. The second respondent shall pass appropriate orders and grant the petitioner consequential benefits expeditiously, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The writ petition is disposed of accordingly. Sd/C.T.RAVIKUMAR Judge TKS // true copy // P.S. to Judge