D.S Santoshkumar v. University of Kerala and Others

WP(C) No.20170/2023 -1- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 10[TH] DAY OF OCTOBER 2023 / 18TH ASWINA, 1945** ## **WP(C) NO. 20170 OF 2023** ## **PETITIONERS:** D.S SANTHOSHKUMAR, S/O N.DEVAPALAN NAIR, AGED 49 YEARS, DEPUTY REGISTRAR, CREDIT AND SEMESTER SYSTEM KARYAVATTOM, UNIVERSITY OF KERALA, RESIDING AT 'MIDHILA', TC 18/691-1 PUNNAKKAMUGAL, ARAMADA P.O., THIRUVANANTHAPURAM, PIN - 695032 BY ADVS. SRI LIJU.V.STEPHEN SMT.INDU SUSAN JACOB SMT.P.M.HRIDYA SRI TAJ K. TOM(K/1243/2000) ## **RESPONDENTS:** 1 UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM, PIN - 695034 2 THE SYNDICATE UNIVERSITY OF KERALA, REPRESENTED BY VICE CHANCELLOOR SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM, PIN - 695034 3 THE REGISTRAR UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM, PIN - 695034 4 B.H. JAYASREE DEPUTY REGISTRAR (I) UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM, PIN - 695034 WP(C) No.20170/2023 -2- 5 S.UMADEVI DEPUTY REGISTRAR UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM, PIN - 695034 6 SINDHU GEORGE DEPUTY REGISRAR, UNIVERSITY OF KERALA *[REPRESENTED BY ITS REGISTRAR SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM, PIN 695034]. *[THE WORDS IN THE ADDRESS OF THE 6TH RESPONDENT 'REPRESENTED BY ITS REGISTRAR, SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM, PIN - 695034' IS SUO MOTU DELETED AS PER ORDER DATED 26.09.2023 IN WP(C) 20170/2023], PIN – 695034 BY ADVS. SRI THOMAS ABRAHAM (SC) SMT.B.SABITHA (DESOM) **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **29.09.2023, THE COURT ON 10.10.2023 DELIVERED THE FOLLOWING:** WP(C) No.20170/2023 -3- ## **T.R.RAVI, J.** ## **---------------------------------------WP(C)No.20170 of 2023** **------------------------------------------Dated this the 10[th] day of October, 2023** ## **JUDGMENT** The petitioner is working as Deputy Registrar under the 1[st] respondent University. Three vacancies in the post of Joint Registrar arose on 01.06.2023 and the petitioner, as the seniormost among the Deputy Registrars, was eligible and entitled to be appointed in the said post on promotion. The writ petition has been filed challenging the denial of promotion to the petitioner. 2. The writ petition is filed on the following averments. While the petitioner was working as Deputy Registrar (Administration III), a Senior Grade Assistant of the Planning Section who was on leave without allowance from 02.03.2022 to 28.02.2023 was to join duty on 01.03.2023 in the Administration A-IV Section. However, the said Senior Grade Assistant went to the Administration A-IV Section only on 06.03.2023, without submitting her joining report to the Section Officer who was her immediate Reporting Officer or to the next Reporting Officer, the Assistant Registrar. It appears that she handed over her maternity leave application to one of the Assistants in the Administration A-IV Section, which was forwarded from WP(C) No.20170/2023 -4- Administration A-IV Section to the Administration A-1 Section on 10.03.2023. The Administration A-I , for the reason that the Senior Grade Assistant had not submitted her joining report, returned the maternity leave application on 16.03.2023. On realising the mistake, the Senior Grade Assistant contacted the Assistant Registrar on 17.03.2023 to rectify the mistake committed and had also sought an appointment with the petitioner on 18.03.2023. The petitioner submits that he had informed the employee that he is not the Officer in charge of granting leave or for receiving the joining report and directed the employee to contact the concerned Officer. According to the petitioner, the telephonic conversation lasted 32 seconds. On 20.03.2023, the visual media started scrolling as breaking news an alleged incident wherein the petitioner had directed an employee who had just delivered a baby to come over to the Office and made her wait for hours in the Office. The petitioner has given details of the persons who were responsible for propagating such news, which, according to him, is false and was intended to deny the legitimate promotion due to him. The news item was followed by a complaint by the Kerala University Women's Club, which has been produced as Ext.P2. Ext.P3 is another complaint submitted by the Kerala University Employees Union. Ext.P4 is a complaint submitted by the Kerala University Staff Union. WP(C) No.20170/2023 -5- Exts.P5 & P6 are news reports which were published on 21.03.2023. 3. Based on Exts.P2 to P4 complaints, the Registrar ordered an enquiry and constituted a three-member committee. The committee examined the petitioner, the concerned employee, and other witnesses and submitted a report to the Registrar on 22.03.2023. The concerned employee had submitted before the enquiry committee that she did not wish to proceed with the issue. The committee submitted Ext.P14 report in which it is stated that there has been no misconduct on the part of the petitioner. Ext.P15 is the opinion given by the Legal Advisor wherein it is stated that in the light of the stand expressed by the victim, as well as in the light of the finding that the employee concerned has not committed any misconduct, the disciplinary authority may take an appropriate decision. It appears that on 30.03.2023, the Syndicate, after considering the enquiry report and the opinion of the Legal Advisor, decided to transfer the petitioner to another campus and to appoint an enquiry committee to conduct a detailed enquiry. By Ext.P18 order on 01.04.2023, the petitioner was transferred. Ext.P18 is a general order promoting and transferring several employees. On 22.05.2023, the petitioner was issued with a memo by the Deputy Registrar directing the petitioner to be present for a hearing before the sub-committee scheduled to be held on 23.05.2023. The WP(C) No.20170/2023 -6- petitioner submitted Ext.P21 explanation before the committee. 4. While so, the Syndicate considered the proposal for promotion, transfer, and posting of several employees, including the petitioner. Ext.P22 is the minutes of the meeting. It can be seen that the petitioner was to be promoted to act as Joint Registrar in the scale of pay 118100-163400 in the vacancy of Smt.K.Sobhana Kumari, who retired from service on 31.5.2023. It was decided to post him as Joint Registrar (Examination CBCS and ES), which was a post held by one Sri C.S.Saji, who also retired from service on 31.5.2023. However, the minutes also state that as on that date, no disciplinary proceedings have been initiated against the petitioner, and his promotion to the next higher cadre cannot be denied as per the Rules. However, finally, it was resolved by the Syndicate to keep the promotion of the petitioner to the post in abeyance, pending enquiry. Based on the said decision, while issuing Ext.P24 orders of promotion on 12.06.2023, the petitioner's name was not included. The petitioner has challenged the above proceedings, stating that as long as no disciplinary action has been initiated against the petitioner, the promotion that was due to him cannot be denied. 5. A statement has been filed by the Standing Counsel for the respondents based on the instructions. The statement narrates the incidents and reiterates the contents of the report of the enquiry WP(C) No.20170/2023 -7- and the decision of the Syndicate. The petitioner has filed a reply to the statement producing Exts.P26 and P27, which are the statements given by the Senior Grade Assistant and one Joint Registrar before the Enquiry Committee. The petitioner has thereafter filed I.A.No.1 of 2023, producing additional documents Exts.P28 to P30. Exts.P28 and P29 are the memo of charges and the statement of allegations, respectively, issued by the Enquiry Committee. The memo of charges is dated 14.6.2023. The petitioner hence submits that it is evident that the disciplinary action itself has commenced only after the promotions ordered, and as such, the petitioner cannot be denied promotion. 6. Heard learned counsel for the petitioner and learned counsel for the respondents. 7. The Counsel for the petitioner submits that going by the provisions of Rule 28(b)(i)(7) of the KS and SSR, it is only officers under suspension or against whom departmental proceedings have been initiated for the imposition of a major penalty or against whom criminal proceedings are pending, who are to be not included in a select list. Even in the case of such officers, their suitability is to be assessed and a finding reached. It is submitted that the case of the petitioner does not fall into any of such categories. The counsel for the petitioner submitted that even if a sealed cover procedure is to WP(C) No.20170/2023 -8- be followed, that can only be followed if the disciplinary action is already initiated at the time of promotion. It is submitted that promotion cannot be denied, anticipating disciplinary action. Reliance is placed on the decision rendered by a Division Bench of this Court in the **State of Kerala & Ors. v. Babu Prasad B. [2019 KHC 940]** to submit that the commencement of disciplinary proceedings will be on the issuance of a charge sheet and since the charge sheet is issued after the promotion granted to the juniors, the petitioner cannot be denied promotion. The counsel also relied on the decision of the Hon'ble Supreme Court in **Union of India & Ors. v.** **K.V.Jankiraman & Ors. [1991 (4) SCC 109]** , wherein it is held that sealed cover procedure can be adopted only after the date of issuance of charge memo/charge sheet, that being the date from which the disciplinary/criminal proceedings is taken to have been initiated. The counsel also submitted that as per Statute 32 of Part III of Chapter IV of Kerala University First Statutes, 1977, an enquiry is contemplated only on the basis of a formal complaint or any investigation or any other such reasons. It is submitted that the allegations levelled against the petitioner are not of any criminal nature or of any violation of the provisions of the University Statute. It is hence submitted that there is no legal basis for even continuing with an enquiry. As per Statute 2 of Chapter IV of Kerala University WP(C) No.20170/2023 -9- First Statutes, 1977, dealing with Terms and Conditions of Service of Non-Teaching Staff of The University, the Kerala Service Rules have been made applicable, except to the extent expressly provided for in the Statute. Statute 32 of the said Chapter, specifically says that on the satisfaction that there is a _prima facie_ case for taking action against a University employee, the authority shall frame definite charges, which shall be communicated to the University employee, together with a statement of allegations on which the charge is raised. 8. Evidently, at the time of issuance of Ext.P24, no charge memo had been issued to the petitioner. So also, on 09.06.2023, when the Syndicate resolved to keep the promotion in abeyance, no disciplinary proceedings were initiated. In view of the decisions of the Hon'ble Supreme Court and the Division Bench of this Court referred to above, the petitioner cannot be denied promotion anticipating a disciplinary enquiry. 9. The writ petition is hence allowed. There will be a direction to respondents 1 and 2 to consider the recommendation for promotion of the petitioner as contained in Ext.P22 and promote the petitioner to the post of Joint Registrar. Exts.P24 and P25 to the extent they deny promotion to the petitioner and promotes his juniors ie; respondents 4 to 6, to the post of Joint Registrar, are WP(C) No.20170/2023 -10- found to be not in accordance with the law, and the respondents 1 & 2 are directed to pass orders including the petitioner above his juniors in the list of persons promoted. Necessary orders shall be issued within three weeks from the date of receipt of a certified copy of this judgment. Sd/- **T.R.RAVI JUDGE** dsn WP(C) No.20170/2023 -11- ## **PETITIONER'S EXHIBITS** |Exhibit P1|TRUE COPY OF PERMISSION TO RE-JOIN DUTY AFTER| |---|---| ||LEAVE, ISSUED BY THE DEPUTY REGISTRAR ADMIN I| ||DATED 4-03-2023 TO MRS. ARCHANA C.V| |Exhibit P2|TRUE COPY OF THE COMPLAINT DATED 20-3-2023| ||FILED BY THE KERALA UNIVERSITY WOMEN' CLUB| |Exhibit P3|TRUE COPY OF THE COMPLAINT DATED 20-3-2023| ||FILED BY THE KERALA UNIVERSITY EMPLOYEES UNION| |Exhibit P4|TRUE COPY OF THE COMPLAINT DATED 20-03-2023 BY| ||THE KERALA UNIVERSITY STAFF UNION| |Exhibit P5|TRUE COPY OF THE NEWSPAPER REPORT DATED 21-3-| ||2023 IN KERALA KAUMUDY, THIRUVANANTHAPURAM| |Exhibit P6|TRUE COPY OF THE NEWSPAPER REPORT DATED 21-3-| ||2023 IN KERALA KAUMUDY, DIGITAL MEDIA| |Exhibit P7|TRUE COPY OF THE ORDER DATED 20-3-2023 ISSUED| ||BY 3RD RESPONDENT| |Exhibit P8|TRUE COPY OF THE MODIFIED ORDER DATED 21-3-2023| ||ISSUED BY 3RD RESPONDENT| |Exhibit P9|TRUE COPY OF THE STATEMENT MADE BY MRS. ARCHANA| ||C.V DATED 21-3-2023| |Exhibit P10|TRUE COPY OF THE STATEMENT MADE BY MRS. ARCHANA| ||C.V DATED 21-3-2023| |Exhibit P11|TRUE COPY OF THE STATEMENT DATED 21-3-2023 MADE| ||BY THE PETITIONER| |Exhibit P12|TRUE COPY OF THE STATEMENT DATED 21-3-2023 MADE| ||BY THE DEPUTY REGISTRAR, RESMI. R| |Exhibit P13|TRUE COPY OF THE STATEMENT DATED 21-3-2023 MADE| ||BY AJITH KUMAR, ASSISTANT REGISTRAR| |Exhibit P14|TRUE COPY OF THE REPORT DATED 23-3-2023| ||SUBMITTED BY THE THREE-MEMBER COMMITTEE TO THE| ||3RD RESPONDENT| |Exhibit P15|TRUE COPY OF THE LEGAL OPINION DATED 30-3-2023| ||OF THE LEGAL ADVISOR| |Exhibit P16|TRUE COPY OF THE PROCEEDINGS NOTE OF THE 3RD| ||RESPONDENT| |Exhibit P17|TRUE COPY OF THE MINUTES OF THE SYNDICATE| ||MEETING DATED 30-3-2023| |Exhibit P18|TRUE COPY OF THE MINUTES OF THE SYNDICATE| ||MEETING DATED 30-3-2023| |Exhibit P19|TRUE COPY OF THE ORDER DATED 1-4-2023 ISSUED BY| ||3RD RESPONDENT| |Exhibit P20|TRUE COPY OF THE MEMO DATED 22-05-2023 ISSUED| ||BY THE 3 MEMBER COMMITTEE| |Exhibit P21|TRUE COPY OF THE STATEMENT DATED 19-4-2023| WP(C) No.20170/2023 -12- SUBMITTED BY THE PETITIONER TO THE NEW THREEMEMBER COMMITTEE - Exhibit P22 TRUE COPY OF THE MINUTES OF THE SYNDICATE DATED 9-6-2023 WITH REGARD TO THE PROVISIONAL PROMOTION LIST Exhibit P23 TRUE COPY OF THE MINUTES OF THE SYNDICATE RESOLUTION DATED 9-6-2023 - Exhibit P24 TRUE COPY OF THE PROMOTION ORDER DATED 12-62023 ISSUED BY THE 1ST RESPONDENT - Exhibit P25 TRUE COPY OF THE ORDER DATED 12-6-2023 ISSUED BY THE 3RD RESPONDENT - EXHIBIT P26 TRUE COPY OF THE STATEMENT MADE BY ARCHANA C V BEFORE THE ENQUIRY COMMITTEE APPOINTED BY THE KERALA UNIVERSITY SYNDICATE DATED 23-5-2023 - EXHIBIT P27 TRUE COPY OF THE STATEMENT MADE BY JOINT REGISTRAR, SHOBHANA KUMARI, BEFORE THE ENQUIRY COMMITTEE DATED 19-4-2023 - EXHIBIT P28 TRUE COPY OF THE MEMO OF CHARGES ISSUED BY THE ENQUIRY COMMITTEE CONSTITUTED BY THE SYNDICATE OF THE KERALA UNIVERSITY DATED 14-6-2023 - EXHIBIT P29 TRUE COPY OF THE STATEMENT OF ALLEGATION FURNISHED TO THE PETITIONER BY THE ENQUIRY COMMITTEE DATED 14-6-2023 - EXHIBIT P30 TRUE COPY OF THE REPLY TO THE MEMO OF CHARGES MADE BY THE PETITIONER DATED 20-6-2023