Dr. Salim A v State of Kerala & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI THURSDAY, THE 9[TH] DAY OF DECEMBER 2021 / 18TH AGRAHAYANA, 1943 OP(KAT) NO. 347 OF 2021 ``` ``` AGAINST THE ORDER IN OA 2290/2021 DATED 06.12.2021 OF KERALA ``` ``` ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ``` ## **`PETITIONER/S:`** ``` DR.SALIM A, AGED 52 YEARS PROFESSOR (UNDER ORDERS OF REVERSION TO THE POST OF ASSOCIATE PROFESSOR), S/O. ABDUL AZEEZ, DEPARTMENT OF COMPUTER SCIENCE AND ENGINEERING, COLLEGE OF ENGINEERING TRIVANDRUM, THIRUVANANTHAPURAM-695 016 RESIDING AT KOTTAPPURAM, MANGAD, KOLLAM, PIN-691 015. ``` ``` BY ADV A.ARUNA ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.` - `2 DIRECTOR OF TECHNICAL EDUCATION, DIRECTORATE OF TECHNICAL EDUCATION, PADMAVILASAM ROAD, THIRUVANANTHAPURAM, PIN-695 023.` - `3 STAFF SELECTION COMMITTEE CONSTITUTED AS PER G.O.(RT)NO.1326/2021/HEDN DATED 5.10.2021, REPRESENTED BY ITS CHAIRMAN, ADDITIONAL CHIEF SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.` - `4 DR.RAJASREE M.S. (AGE, NAME OF FATHER AND PERSONAL ADDRESS NOT KNOWN TO THE PETITIONER), VICE CHANCELLOR, APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, ALATHARA RD, AMBADY NAGAR, THIRUVANANTHAPURAM, KERALA, PIN-695 016.` ``` OP(KAT) NO. 347 OF 2021 ``` ``` -2- ``` - `5 DR.SHAJIJ P.R. (AGE, NAME OF FATHER AND PERSONAL ADDRESS NOT KNOWN TO THE PETITIONER), DEAN RESEARCH, APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY, ALATHARA RD, AMBADY NAGAR, THIRUVANANTHAPURAM, KERALA, PIN-695 016.` ``` SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER ``` ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 09.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(KAT) NO. 347 OF 2021 ``` ``` -3- ``` ## **ALEXANDER THOMAS & BASANT BALAJI, JJ. =========================** **O.P.(K.A.T.) No. 347 of 2021** (Arising out of order dated 06.12.2021 in O.A 2290 of 2021, of the Kerala Administrative Tribunal, Tvm) **=========================** Dated this the 9[th] day of December, 2021 ## **JUDGMENT** ## ALEXANDER THOMAS, J. Petitioner herein has filed the instant Ext.P1 OA No. 2290 of 2021, and the main prayers in the said OA are as follows: “i. Set aside Annexures A15 to A20 as unjust, illegal, arbitrary, vitiated by malice and as violative of Rule 28(b) of the Part II of Kerala State & Subordinate Service Rules, 1958. ii. Declare that, the applicant is not liable to be reverted to the post of Associate Professor and that he is entitled to be promoted as/continue as a Professor with effect from 20.12.2017. iii. Declare that, A15 to A20 as unjust, illegal, arbitrary, vitiated by malice and as violative of Rule 28(b) of the Part II of Kerala ``` OP(KAT) NO. 347 OF 2021 ``` ``` -4- ``` State & Subordinate Service Rules, 1958. iv. Declare that the respondents 4 and 5 cannot be included as a member of Staff Selection Committee constituted as per the directions in Annexure A14. v. Declare that the respondents 1 to 3 are liable to publish select list according to the seniority of the candidates in the feeder category and by showing the feeder categories such as Professors, Associate Professors and Assistant professors in separate lists and that persons in a lower scale of pay shall be appointed only after appointing all persons on a higher scale of pay for complying with the directions in Annexure A14 judgment. vi. Direct the respondents 1 and 2 to constitute a fresh Selection Committees, Conduct Selection process, publish select list and make appointments/promotions from the select list to the post of Principal/Joint Director (Technical education, Professor and Associate Professor under the 1[st] respondent as per Rule 28(b) of the Part II of Kerala State & Subordinate Service Rules, 1958, including Rules 28 (b)(i)(1)(2)(3) and (7) for complying with the directions in Annexure A14 judgment. ``` OP(KAT) NO. 347 OF 2021 ``` ``` -5- ``` vii. Direct the respondents 1 and 2 to cancel Annexures 15 to 20 and to publish a fresh Select list for promotion to the post of Professor (Computer Science and Engineering) by including the name of applicant and to promote him to the said post with effect from 20.12.2017. vii. Such other reliefs as his Hon’ble Tribunal may deem fit and proper in the facts and circumstances of this case.” 2. Heard Kum. A. Aruna, learned counsel appearing for the petitioner in the OP / sole applicant in the OA before the Tribunal and Sri. Saiji Jacob Palatti, learned Senior Government Pleader appearing for the official respondents 1 and 2 in the OP. Notice to respondents 4 and 5 will stand dismissed with. 3. Order under challenge in this OP is one at Ext.P2 rendered by the Tribunal dated 06.06.2021, filed by the petitioner herein before the Tribunal. The said impugned order Ext.P2 dated 06.06.2021 rendered by the Tribunal in ``` OP(KAT) NO. 347 OF 2021 ``` ``` -6- ``` the instant OA No. 2290 of 20212, reads as follows: “Learned Government Pleader will get instructions on the averments in the Original Application as to: - (1) The inclusion of respondents 4 and 5 - in the Staff Selection Committee constituted as per Annexure A15 order; (2) The non-compliance with Rule 28(b) Part II KS & SSR despite the specific direction of the Hon’ble High Court in Annexure A14 judgment; and - (3) The requirement for reversion of the applicant.” 4. After hearing both sides, we are of the view that the above said order passed by the Tribunal is only an ad interim order and that order was passed at the admission stage only to enable the Tribunal to get factual details in the matter. Such order cannot be challenged under Articles 226 and 227 of the Constitution of India. If we entertain this OP, it will amount to the Court exceeding its well defined powers of judicial review and superintendence conferred under Articles 226 and 227 of the Constitution of India. Hence, we are not ``` OP(KAT) NO. 347 OF 2021 ``` ``` -7- ``` inclined to accept the plea of the learned counsel for the petitioner to interfere with the above said order. 5. The OA will stand posted before the Tribunal on 15.12.2021. We are sure that the Tribunal will certainly examine the pleas of the petitioner in regard to the interim relief sought for in the OA. The Original Petitions will stand disposed of as above. **`Sd/ALEXANDER THOMAS JUDGE`** Sd/- **`BASANT BALAJI JUDGE`** uu ## **`OP(KAT) NO. 347 OF 2021`** ``` -8- ``` ## **`APPENDIX OF OP(KAT) 347/2021`** |`PETITIONER EXHIBITS`|`PETITIONER EXHIBITS`| |---|---| |`Exhibit P1`|`TRUE COPY OF THE MEMORANDUM OF OA`| ||`2290/2021 TOGETHER WITH ITS ANNEXURES.`| |`Annexure A1`|`TRUE COPY OF THE FIRST PAGE OF THE`| ||`APPOINTMENT ORDER NO.EA4/16084/2001`| ||`DATED 23.7.2001 ISSUED FROM THE`| ||`DIRECTORATE OF TECHNICAL EDUCATION.`| |`Annexure A2`|`TRUE COPY OF THE RELEVANT PAGES OF THE`| ||`KERALA TECHNICAL EDUCATION SERVICE`| ||`ISSUED AS PER G.O. (MS) NO.284 DATED`| ||`2.9.1967.`| |`Annexure A3`|`TRUE COPY OF THE NOTIFICATION`| ||`F.NO.FD/PSSC/NOTIFICATIONS/2002/1 DATED`| ||`18.2.2003 ISSUED BY AICTE.`| |`Annexure A4`|`TRUE COPY OF THE SPECIAL RULES FOR THE`| ||`KERALA TECHNICAL EDUCATION (AMENDMENT)`| ||`RULES 2004 PUBLISHED IN THE EXTRA`| ||`ORDINARY GAZETTE DATED 27.9.2004.`| |`Annexure A5`|`TRUE COPY OF THE CERTIFICATE DATED`| ||`23.7.2005 ISSUED FROM THE NATIONAL`| ||`INSTITUTE OF TECHNOLOGY.`| |`Annexure A6`|`TRUE COPY OF THE INTERIM ORDER 27.2.2009`| ||`IN WPC 35729/2008.`| |`Annexure A7`|`TRUE COPY OF THE RELEVANT PAGES OF PAY`| ||`SCALE, SERVICE CONDITIONS AND`| ||`QUALIFICATIONS FOR THE TEACHERS AND`| ||`OTHER ACADEMIC STAFF IN TECHNICAL`| ||`INSTITUTIONS (DEGREE), REGULATIONS,`| ||`2010.`| |`Annexure A8`|`TRUE COPY OF THE ORDER DATED 20.8.2014`| ||`IN OA 1551/2014.`| |`Annexure A9`|`TRUE COPY OF THE ORDER DATED 17.10.2014`| ||`IN SLP (CIVIL) 16400/2014 PASSED BY THE`| ||`HON'BLE SUPREME COURT OF INDIA.`| |`Annexure A10`|`TRUE COPY OF THE ORDER DATED 28.4.2016`| ## **`OP(KAT) NO. 347 OF 2021`** ``` -9- ``` ||`IN CIVIL APPEAL NO.4502/2016 PASSED BY`| |---|---| ||`THE HON'BLE SUPREME COURT OF INDIA.`| |`Annexure A11`|`TRUE COPY OF THE PH.D DEGREE CERTIFICATE`| ||`ISSUED TO THE APPLICANT DATED 17.7.2018`| ||`ISSUED BY THE UNIVERSITY OF KERALA IS`| ||`PRODUCED.`| |`Annexure A12`|`TRUE COPY OF THE ORDER DATED 14.11.2017`| ||`IN OA(EKM) 1551/2014 AND CONNTECTED`| ||`CASES ARE PRODUCED.`| |`Annexure A13`|`TRUE COPY OF THE G.O(MS)NO.57/2019,`| ||`H.EDN DATED 7.3.2019 IS PRODUCED.`| |`Annexure A14`|`TRUE COPY OF THE RELEVANT PAGES OF THE`| ||`JUDGMENT DATED 3.12.2020 IN`| ||`OP(KAT)133/2019 AND CONNECTED CASES.`| |`Annexure A15`|`TRUE COPY OF THE G.O.(RT)`| ||`NO.1326/2021/HEDN DATED 5.10.2021.`| |`Annexure A16`|`TRUE COPY OF THE G.O.(MS)`| ||`NO.504/2021/H.EDN DATED 11.11.2021.`| |`Annexure A17`|`TRUE COPY OF THE G.O.(MS)`| ||`NO.505/2021/H.EDN DATED 11.11.2021.`| |`Annexure A18`|`TRUE COPY OF THE G.O.(MS)`| ||`NO.514/2021/H.EDN DATED 11.11.2021.`| |`Annexure A19`|`TRUE COPY OF THE G.O.(MS)`| ||`NO.534/2021/H.EDN DATED 18.11.2021.`| |`Annexure A20`|`TRUE COPY OF THE G.O.(MS)`| ||`NO.535/2021/H.EDN DATED 18.11.2021.`| |`Annexure A21`|`TRUE COPY OF THE G.O.(MS)`| ||`NO.433/2021/H.EDN DATED 9.10.2021.`| |`Exhibit P2`|`TRUE COPY OF THE INTERIM ORDER DATED`| ||`6.12.2021 PASSED BY THE HON'BLE KERALA`| ||`ADMINISTRATIVE TRIBUNAL IN OA 2290/2021.`|