Dr. James Varghese v. Cochin University of Science & Technology and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **WEDNESDAY, THE 30TH DAY OF NOVEMBER 2016/9TH AGRAHAYANA, 1938** **WP(C).No. 11822 of 2015 (C) ----------------------------** **PETITIONER(S):** **-------------** **DR.JAMES VARGHEESE, ASSISTANT PROFESSOR, MECHANICAL ENGINEERING DIVISION, SCHOOL OF ENGINEERING CUSAT.** **BY ADVS.SRI.S.RADHAKRISHNAN SRI.S.RAJ MOHAN** ## **RESPONDENT(S):** **--------------** **1. THE COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY, REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY COCHIN UNIVERSITY P.O., KOCHI 22.** **2. THE ADDL. CHIEF SECRETARY TO GOVERNMENT OF KERALA. HIGHER EDUCATION (B) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-14.** **3. THE JOINT DIRECTOR OF LOCAL FUND AUDIT. COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY KOCHI-22.** **R1 BY ADV. SRI.V.S.AFSAL KHAN, SC, COCHIN UTY. OF** **SCIENCE & TECHNOLOGY R. BY ADV. GOVERNMENT PLEADER, SRI.UNNIKRISHNA KAIMAL R1 & 3 BY ADV. SRI.V.A.MUHAMMED R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI,SC,** **COCHIN UNIVERSITY OF SCIENCE R BY SRI.MILLU DANDAPANI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 11822 of 2015 (C)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT.P1 & P2. TRUE COPIES OF ORDER NO.AD.F1/66/52/2000 DATED 25.07.2002 AND AD.F1/66/52/2000 DATED 07.05.2005.** **EXT.P3. A TRUE COPY OF THE NOTIFICATION ISSUED BY THE AICTE IMPLEMENTING THE REVISION OF PAY SCALE AND CAREER ADVANCEMENT SCHEME,F.NO.1-65/CD/NCE/98-99 DATED 30.12.1999.** **EXT.P4. A TRUE COPY OF THE ORDER G.O.(P) 68/2000/H.EDN DATED 18.05.2000.** **EXT.P5. A TRUE COPY OF THE ORDER AD.D2 /15784/2000/ DATED 08.08.2000.** **EXT.P6. A TRUE COPY OF THE ORDER NO.AD.F1/31158/CAS/2007 DATED 12.08.2008.** **EXT.P7. A TRUE COPY OF ORDER G.O.(P) 389/10/H.EDN DATED 07.12.2010.** **EXT.P8. A TRUE COPY OF THE GUIDELINES FOR PROMOTION UNDER CAS NOTIFIED BY THE AICTE.** **EXT.P9. A TRUE COPY OF THE CIRCULAR NO.72/2005/FIN DATED 30.12.2005 ISSUED BY THE PRINCIPAL SECRETARY (FINANCE).** **EXT.P10. A TRUE COPY OF THE REPRESENTATION DATED 20.11.2013.** **EXT.P11. A TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT.) NO.721/2014/H.EDN DATED 01.04.2014.** **EXT.12. A TRUE COPY OF THE ORDER NO.AD.F1/66/52/2000 DATED 23.06.2014.** **EXT.P13. A TRUE COPY OF THE COMMUNICATION NO.LF(CUSAT) A4-436/14 DATED 14.10.2014.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXT.R3(a) TRUE COPY OF THE ORDER No.20615/B2/12/H.EDN DATED 20.03.2014** **EXT.R3(b) TRUE COPY OF THE LETTER DATED 14.10.2014** **EXT.R3(c) TRUE COPY OF THE FILED NOTIFICATION** **EXT.R3(d) TRUE COPY OF THE UGC AND AICTE SCHEMES & REGULATIONS** **EXT.R3(e) TRUE COPY OF THE PROFORMA SUBMITTED BY A TEACHER TO THE UNIVERSITY** **EXT.R3(f) TRUE COPY OF THE SELECTION LIST APPROVED BY A SELECTION COMMITTEE** **WP(C).No. 11822 of 2015 (C)** ## **----------------------------** **EXT.R3(g) TRUE COPY OF THE ORDER DATED 17.12.2008** **EXT.R3(h) TRUE COPY OF THE CIRCULAR DATED 30.12.2005** **EXT.R3(i) TRUE COPY OF THE AICTE NOTIFICATION F.N. 37-3/LEGAL/2010 DATED 22.01.2010.** **EXT.R3(j) TRUE COPY OF THE ORDER DATED 06.06.2015.** // True copy // PA to Judge das ## **A.K.JAYASANKARAN NAMBIAR, J.** =========================================== ## **W.P.(C). No. 11822 of 2015** ===================================================== **Dated this the 30[th] day of November, 2016** ## **JUDGMENT** The petitioner, after taking an M.Tech degree in Thermal Science from the Regional Engineer College, Calicut, joined as Lecturer in the School of Engineering of the 1[st] respondent University with effect from 20.12.1999. Later, he applied through proper channel for the Ph.D program in IIT, Mumbai and on being selected for the same, he applied for leave without allowance for pursuing his higher studies for a period of four years. The 1[st] respondent University granted him the leave for a period of three years on 25.07.2002. Although the leave was initially granted for a period of three years, it was subsequently extended by one year by an order dated 07.05.2005 of the respondent University. The petitioner, therefore availed leave from 29.07.2002 to 26.07.2006 and obtained his Ph.D degree. In the meanwhile, the AICTE had introduced a Career Advancement Promotion Scheme for lecturers, as per which the lecturers, on completing stipulated years of experience in the entry scale and qualifying for promotion to the higher posts, would be placed in a scale of pay commensurate to the higher post pursuant to a selection. In accordance with the said scheme, the petitioner qualified for promotion as Lecturer -2- W.P.(C). No. 11822 of 2015 Senior Scale on completion of four years of service as Lecturer. While granting him the promotion as Lecturer Senior Scale, however, the petitioner was given the said scale only with effect from 16.12.2007. This was on account of the exclusion of the period of four years, during which the petitioner had proceeded on leave for the purposes of pursuing his Ph.D program. The petitioner therefore, preferred a representation before the respondent University, seeking an inclusion of the said four years leave period in the reckoning of qualifying service for the purposes of promotion as Lecturer Senior Scale. The Syndicate of the respondent University, which met, considered the case of the petitioner and by Ext.P12 order, ante-dated the date of promotion of the petitioner as Lecturer Senior Scale to 20.12.2004, which date marked the completion of five years of the petitioner's service as Lecturer. By virtue of Ext.P12 order of the 1[st] respondent University therefore, the petitioner became entitled to the pay and allowances due in the post of Lecturer Senior Scale with effect from 20.12.2004. The ante-dating of the promotion of the petitioner as Lecturer Senior Scale with effect from 20.12.2004 was however, objected to by the 3[rd] respondent Joint Director of Local Fund Audit, who by Ext.P13 communication addressed to the -3- W.P.(C). No. 11822 of 2015 Registrar of the 1[st] respondent University, opined that, as per Rule 91 of Part I KSR, the period during which the petitioner proceeded on leave without allowance, could not be counted as period of service for placement under the Career Advancement Scheme, that was introduced in the respondent University. It was also pointed out that the said period would have to be deducted while counting other service benefits like increments, pension, accumulation of earned leave etc. A direction was therefore, given to the respondent University to correct the promotion date in relation to the petitioner. In the writ petition, the petitioner impugns Ext.P13 audit objection, and seeks a declaration that Ext.P12 order of the 1[st] respondent University, that reckoned his promotion as Lecturer Senior Scale with effect from 20.12.2004, is legal and valid and that he is entitled to all consequential service benefits pursuant to the said order of the respondent University. 2. In the counter affidavit filed on behalf of the respondent University, the sequence of events leading to Ext.P12 order have been reiterated and Ext.P12 order is sought to be justified for the reasons stated therein. In the counter affidavit filed on behalf of the 3[rd] respondent, reference is made to Rule 91 -4- W.P.(C). No. 11822 of 2015 of Part I KSR, as also Ext.P9 circular dated 30.12.2005 of the Government, which indicates that the leave without allowance under Rule 91 for educational purposes would not count for increment, higher grade, pension or accumulation of earn leave, but would count only for the purposes of seniority/promotion and accumulation of half pay leave. It is the contention of the said respondent in the counter affidavit that, the placement of the petitioner as Lecturer Senior Scale, was not consequent to a promotion, but was pursuant to the grant of a higher grade and hence, the four years period of leave, that was availed by the petitioner for the purposes of pursuing his Ph.D program, could not be taken into reckoning for the purposes of determining his eligibility for placement in the senior scale. 3. I have heard the learned counsel appearing for the petitioner, the learned Standing Counsel appearing for the 1[st] respondent University as also the learned Government Pleader appearing for respondents 2 and 3. 4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find that -5- W.P.(C). No. 11822 of 2015 the Career Advancement Scheme was put in place in the respondent University pursuant to Ext.P3 notification issued by the AICTE, revising the pay scales and associated terms and conditions of service of teachers, librarians and physical education personal for diploma level technical institutions. The Career Advancement Scheme was to be effected from January 1[st] , 1996. A perusal of the scheme clearly indicates that the Career Advancements was to provide for movement of Lecturer to Lecturer Senior Scale and thereafter for the Senior Lecturer / Lecturer Senior Scale to Lecturer (Selection Grade). Referring to the qualifications to be possessed by the candidates, to move from the placement as Lecturer to Lecturer Senior Scale, the word used in the notification is “Promotion”. It is seen, therefore that the AICTE notification envisaged the movement from the post of Lecturer to Lecturer Senior Scale to be a promotion in service for the candidate in question. A similar phraseology is also used, while dealing with the placement of Lecturer Senior Scale as Lecture (Selection Grade). It is not in dispute that the AICTE notification referred to above was recognized by the State Government by Ext.P4 Government Order dated 18.05.2000, which decided to adopt an implementation of scheme of revision of pay, -6- W.P.(C). No. 11822 of 2015 pay scales as contemplated in AICTE notification within the State. In Ext.P4 Government Order, while referring to the leave rules, it is made clear that the leave rules as per the KSR would continue to apply to all teachers in Engineering Colleges. By Ext.P5 order, the 1[st] respondent University also implemented the revised AICTE scheme and scales of pay of teachers to teachers in the said University. It was accordingly, that the petitioner was offered the placement as Lecturer Senior Scale through Ext.P6 order dated 2.08.2008. While in Ext.P6 order, the placement of the petitioner as Lecturer Senior Scale is only with effect from 16.12.2007, it needs to be noted that even in the said order, the reference to the movement of the petitioner from Lecturer to Lecturer Senior Scale is described as “Promotion”. 5. I have referred to the aforesaid documents, which are the orders passed in connection with the placement of the petitioner as Lecturer Senior Scale, only to highlight that in all the said documents, the treatment accorded to the movement of the petitioner from the post of Lecturer to Lecturer Senior Scale, is as a promotion in service. It is trite that the term “Promotion”, “Grade Promotion” etc, have definite conniotations in service -7- W.P.(C). No. 11822 of 2015 jurisprudence and while all promotions leading to a higher scale of pay may not necessarily be promotions to substantive posts, one has to understand the phraseology in the context of the rule prevailing in the particular organization. It is apparent from a reading of the AICTE notification that in the instant case, the placement of the petitioner as Lecturer Senior Scale was not merely the granting of a higher scale of pay to the petitioner in his substantive post as Lecturer, but a migration and a career advancement for the petitioner from the post of Lecturer to the post of Lecturer Senior Scale. As a matter of fact, it is apparent from the notification that the placement as Lecturer Senior Scale was in lieu of regular promotion to a post carrying the same scale of pay, since the placement in the higher scale was pursuant to a process of selection and subject to the petitioner satisfying the eligibility requirements for the same. I, therefore, find that the movement of the petitioner from the post of Lecturer to Lecturer Senior Scale, cannot be viewed merely as consequent to the grant of a higher grade for the purposes of Ext.P9 circular, that is relied upon by the respondents. The movement of the petitioner from Lecturer to Lecturer Senior Scale has to be viewed as a promotion for the purposes of Rule 91 of Part I KSR and hence, the audit -8- W.P.(C). No. 11822 of 2015 objection in Ext.P13 cannot be legally sustained. In taking this view, I am fortified by the judgments relied upon by learned counsel for the petitioner namely State of Rajasthan _v._ Fateh Chand Soni **[1996 (1) SCC 562],** Ram Prasad and Others _v._ D.K.Vijay and Others **[1999 (7) SCC 251]** and Union of India _v._ Pushpa Rani **[2008 (9) SCC 242]** all of which deal with the issue of whether a movement from one scale to the next higher scale of pay pursuant to the grant of a higher grade to the employee amounted to a promotion or a mere grant of higher grade for the purposes of implementing the policy of reservation of posts for Scheduled Caste/Scheduled Tribe Candidates. The decisions referred to indicate that, where the movements aforesaid have the effect of placing the employee in a higher scale, consequent to a process of selection, then the movement is to be treated as a promotion. Resultantly, I quash Ext.P13 audit objection of the 3[rd] respondent and allow the writ petition by declaring that the service benefits due to the petitioner shall be as contemplated in Ext.P12 order issued by the 1[st] respondent University. Taking note of the submission of the learned counsel for the petitioner that, on account of Ext.P13 audit objection, the benefits -9- W.P.(C). No. 11822 of 2015 flowing from Ext.P12 order of the 1[st] respondent University have not been disbursed to the petitioner till date, there will be a direction to the 1[st] respondent to disburse the benefits due to the petitioner within two months from the date of receipt of a copy of this judgment. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** das/ 30.11.2016