Dr. Nizar Hussain M. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 20TH DAY OF MARCH 2017/29TH PHALGUNA, 1938** **WP(C).No. 9240 of 2017 (D) ---------------------------** **PETITIONER(S): -------------** **DR. NIZAR HUSSAIN M., S/O. LATE MUHAMMED KUNJU, PUTHEN VILA VEEDU, PULLICHIRA P.O., KOLLAM DISTRICT PIN-691304 PHONE NO.(MOB) 9495431430 EMAIL: NIZARHUSSAINM @ GMAIL.COM EMPLOYED AS ASSISTANT PROFESSOR IN THE MECHANICAL ENGINEERING DEPARTMENT OF TKM COLLEGE OF ENGINEERING KOLLAM DISTRICT PIN-691005** **BY ADV. DR. NIZAR HUSSAIN M, PARTY IN PERSON** **RESPONDENT(S):** **--------------** **STATE OF KERALA,** **REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN-695001** **BY SENIOR GOVERNMENT PLEADER SMT.NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKG** ## **WP(C).No. 9240 of 2017 (D) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** |**EXHIBIT P1: TRUE COPY OF GOVERNMENT OF INDIA GAZETTE DATED**| |---| |**18.09.2010**| |**EXHIBIT P2: TRUE COPY OF THE ORDER NO.GO(P) NO.392/2010/H.EDN.**| |**DATED 10.12.2010**| |**EXHIBIT P3: TRUE COPY OF THE CLAUSE 10.1 OF UGC REGULATIONS,**| |**2010**| |**EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED 15.02.2011**| |**OF THE PETITIONER TO THE CHAIRMAN, UGC**| |**EXHIBIT P5: TRUE COPY OF THE CLARIFICATION NO.F-1 -2/2009(EC)/**| |**PS) PT. VIII DATED 31.03.2011 OF UGC.**| |**EXHIBIT P6: TRUE COPY OF THE EMBASSY OF INDIA CERTIFIED**| |**DOCUMENT**| |**EXHIBIT P7: TRUE COPY OF THE FINAL REPRESENTATION DATED**| |**30.7.2013 OF THE APPLICANT**| |**EXHIBIT P8: TRUE COPY OF THE LETTER NO.28038/J3/13/H.EDN DATED**| |**20.2.2015**| |**EXHIBIT P9; TRUE COPY OF THE HON'BLE LOK AYUKTA ORDER DATED**| |**4.5.2016**| |**EXHIBIT P10: TRUE COPY OF THE ORDER G.O(RT)NO.1969/2016/H.EDN**| |**DATED 26.07.2016**| |**EXHIBIT P11: TRUE COPY OF THE APPENDIX XII A OF KSR**| |**EXHIBIT P12: TRUE COPY OF THE LETTER NO.15800/C3/2014/H.EDN**| |**DATED 15.05.2014**| |**EXHIBIT P12(A) TRUE ENGLISH TRANSLATION OF EXHIBIT P12**| |**RESPONDENT(S)' EXHIBITS**| |**-----------------------**<br>**NIL**| **/TRUE COPY/** **P.S. TO JUDGE** **SKG** **“CR”** **P.V.ASHA J. -------------------------------------------W.P.(C).No.9240 of 2017 ---------------------------------------------** Dated this the 20[th] day of March, 2017 ## **J U D G M E N T** The petitioner is challenging Ext.P10 order by which his request for reckoning the service rendered by him in a foreign university, while he was on leave without allowance, towards Career Advancement Scheme was rejected. 2. The case of the petitioner is that he has been working as an Assistant Professor from 24.09.1988, in the Mechanical Engineering Department of TKM College of Engineering, which is a private aided College. He applied for leave without allowance for employment abroad under Appendix XIIA of Kerala Service Rules ('KSR' for short) for the period from 18.02.2005 to 17.02.2010 and leave was granted under Appendix XIIA of Kerala Service Rules ('KSR' for short). The petitioner submits that he was working in a foreign University during the above period as a teaching staff. After rejoining duty, on expiry of the **W.P.(C).No.9240 of 2017** 2 leave, he submitted Ext.P7 representation, requesting for counting the service rendered by him in Riyadh Community College under King Saud University, a foreign University, for the period from 18.02.2005 to 17.02.2010, for Career Advancement Scheme promotion, relying on clause 10.1 of UGC Regulations on Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education, 2010 ('UGC Regulations, 2010' for short). In support of his claim, he produced Ext.P6 certificate of May 2011 issued by Director General of Faculty Staff and Personal Affairs of King Saud University. In the application he pointed out that the service in foreign university was “while in service” and stated that as per the clarification he received in Ext.P5 letter of the Deputy Secretary of UGC his service was liable to be counted for career advancement promotion. By Ext P8 letter Govt rejected his representation on the ground that there is no statutory provision to re-consider his case. Petitioner approached the Lok Ayukta filing Complaint No.791 of 2015 and by Ext P9 order dated **W.P.(C).No.9240 of 2017** 3 4.9.2016, the Lok Ayukta set aside Ext.P8 order of Government, for want of any reasons in it and directed the Secretary to Government to pass fresh orders after hearing the petitioner. Ext.P10 order was passed thereafter. 3. Petitioner who argued in person, relied on the Full Bench judgment of this Court in **Radhakrishna Pillai V Tranvancore Devaswom Board and others** [2016(2) KHC 119] and argued that he is entitled to the benefit of the UGC Regulations, in the light of Ext P5 letter. 4. Having considered the pleadings and the contentions of the petitioner, it is necessary to examine whether petitioner's service in a foreign university admittedly rendered “while in service” as pointed out by him in Ext P7 representation, while he was granted leave without allowance under Appendix XIIA of Part I KSR is liable to be counted for career advancement promotion. It is necessary to examine whether the service rendered under these circumstances in the foreign university can be treated as 'previous service' or whether the service rendered in a foreign university in whichever **W.P.(C).No.9240 of 2017** 4 circumstances, can be counted for career advancement scheme promotion. 5. Clause 10.1 of the UGC Regulations 2010, (produced as Ext P3) reads as follows: - “10.1 Previous regular service, whether national or international, as Assistant Professor, Associate Professor or Professor or equivalent in a University, College, National Laboratories or other scientific/professional Organizations such as the CSIR, ICAR, DRDO, UGC, ICSSR, ICHR, ICMR, DBT, etc., should be counted for direct recruitment and promotion under CAS of a teacher as Assistant Professor, Associate Professor, Professor or any other nomenclature. These posts are described as per Appendix IIITable No. II provided that: - (a) The essential qualifications of the post held were not lower than the qualifications prescribed by the UGC for Assistant Professor, Associate Professor and Professor as the case may be. - (b) The post is/was in an equivalent grade or of the pre-revised scale of pay as the post of Assistant Professor (Lecturer) Associate Professor (Reader) and Professor. - (c) The candidate for direct recruitment has applied through proper channel only. - (d) The concerned Assistant Professor, Associate Professor and Professor should possess the same minimum qualifications as prescribed by the UGC for appointment to the post of Assistant Professor, Associate Professor and Professor, as the case may be. - (e) The post was filled in accordance with the prescribed selection procedure as laid down in the Regulations of University/State Government/Central Government/ Concerned Institutions, for such appointments. - (f) The previous appointment was not as guest **W.P.(C).No.9240 of 2017** 5 lecturer for any duration, or an ad hoc or in a leave vacancy of less than one year duration. Ad hoc or temporary service of more than one year duration can be counted provided that: - (i) the period of service was of more than one year duration; - (ii) the incumbent was appointed on the recommendation of duly constituted Selection Committee; and - (iii) the incumbent was selected to the permanent post in continuation to the ad hoc or temporary service, without any break. - (g) No distinction should be made with reference to the nature of management of the institution where previous service was rendered (private/local body/Government), was considered for counting past services under this clause.” 6. What is provided in clause 10.1 is : “previous regular service” should be counted for direct recruitment or promotion under career advancement scheme. Admittedly petitioner seeks promotion under career advancement scheme counting the service rendered by him in a foreign university based on the employment he took up abroad when he was on orders of leave without allowance under appendix XIIA, i.e to reckon the period during which he continued in the rolls of the Private Engineering College and at a time he continued to be governed by the provisions in KSR. In other words petitioner does not claim counting of any service he **W.P.(C).No.9240 of 2017** 6 rendered prior to his commencement of service in the Private aided College as Assistant Professor or in any teaching post in that college. He worked in a foreign University after he was granted leave without allowance and before he rejoined in the very same post after the expiry of the period of leave. 7. When it is the admitted case of the petitioner that he rendered service in the foreign university after obtaining leave without allowance for employment abroad, while he continued to be in the rolls of an aided College in Kerala, such service cannot be said to be “previous service”. The dictionary meaning of the expression “previous” is “happening or existing before something or someone else,” “existing or coming before something else in time or position”. Therefore the service rendered by petitioner on employment in the foreign university, which he took up on his own volition, when he had not severed the employer employee relationship between the the College and himself and in turn the Government of Kerala and when he continued to be governed by the rules applicable to the teaching staff of Private Colleges, subject **W.P.(C).No.9240 of 2017** 7 to the provisions in Appendix XIIA, cannot be treated as “previous service” for any purposes including for the purpose of promotion under career advancement scheme. 8. Apart from that petitioner is bound by the conditions imposed in the order granting him leave. Even though petitioner has not produced the order by which Government sanctioned leave without allowance” it is his admitted case that the said leave without allowance was granted under Appendix XII A, which he has produced as Ext.P11. Under Appendix XII A a person who is availing leave is not entitled to “any service benefit such as earning of leave, including half pay leave, pension, gratuity, increment, etc., and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty.” The leave without allowance is not reckoned for any higher grades. The period of leave without allowance cannot be counted for increments or higher grades. Even assuming that what clause 10 of the **W.P.(C).No.9240 of 2017** 8 regulations provides is 'regular service, whether national or international” petitioner who is bound by the conditions under which he availed leave without allowance and rendered service in a foreign University cannot be heard to take advantage of the same for the purpose of promotion under Career Advancement Scheme under the UGC Regulations. UGC Regulations have to be read and understood with reference to the conditions in Appendix XIIA. 9. This Court had considered the question of eligibility of College teachers for UGC placement for the period during which leave without allowance was availed, in the Full Bench judgment of this Court, in **State of Kerala v. Thomas** [2015 (1) KLT 863], while considering the claim of teachers who availed leave even before Appendix XIIA came into force, where it was held as follows: - “54. When no increment is admissible for such period under leave without allowance, there is no question of grant of any benefits towards the period during which a teacher served another employer in foreign country. There can be no addition to his pay towards **W.P.(C).No.9240 of 2017** 9 such period of absence. Therefore the period during which the teachers of Private Colleges did not discharge their duties in the respective Colleges or in other words while they were serving another employer in another country and remained on leave without allowances for that purpose, even in the absence of any provision for the same, which does not count for increments, can in no manner be reckoned towards placement as Senior Grade Lecturer, Selection Grade Lecturer, etc. 55. Just because the orders implementing U.G.C. Scheme provide for placement on completion of the stipulated number of years of service, or because the orders issued by the educational agencies granting them leave did not contain any restrictions or the consequences, the Private College Teachers cannot be given a further incentive for the period they served a foreign employer on their own will and and pleasure, without considering the purpose for which placement is given. ........... 56. ............ Therefore any period during which a teacher was on leave without allowance other than on the strength of medical certificate cannot be reckoned for the purpose of **W.P.(C).No.9240 of 2017** 10 placement as Senior Lecturer or Selection Grade Lecturer under the U.G.C Scheme Ext.P9.” 10. The interpretation given to the expression 'increment' in the Full Bench judgment is also squarely applicable in this case. 11. In Ext.P10 order, Government found that the petitioner had availed leave without allowance under Appendix XII A Part I of KSR and he worked as Lecturer in King Saud University, Riyadh during the period of leave without allowance. Government found that he was not sponsored by the Department for taking up employment in the foreign University. By virtue of the provisions contained in Appendix XII A, petitioner is liable to forfeit all service benefits. Therefore, I do not find any reason to interfere with the orders passed by the Government in Ext.P10. 12. Petitioner relied on Ext.P5 letter of a Deputy Secretary of the UGC issued in March 2011, which is apparently issued in reply to a letter of the petitioner, by which he was informed that his previous service whether **W.P.(C).No.9240 of 2017** 11 national or international would be counted for promotion under career advancement scheme if he fulfills all conditions in clause 10 of UGC Regulations. In view of my findings regarding the “previous service” and the conditions under Appendix XIIA of Part I KSR binding on the petitioner for the relevant period, the clarification in Ext.P5 letter of the Deputy Secretary of the UGC cannot be of any help to the petitioner when the petitioner is governed by the conditions under Appendix XII A. In the above circumstances, I do not find any illegality in Exts.P10 order issued by Government. The writ petition fails and is dismissed. Sd/- **P.V.ASHA, JUDGE.** AS