K. R. Viswanadhan v. Cochin University of Science & Technology

**C.R.** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 20TH DAY OF MARCH 2017/29TH PHALGUNA, 1938 WP(C).No. 7142 of 2012 (P) --------------------------- PETITIONER: ------------- K.R.VISWANADHAN, S/O. LATE K.V. RAGHAVAN, KANDASSERIL HOUSE, SOUTH PARAVOR.-682320. BY ADVS.SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU SRI.B.PREMNATH (E) RESPONDENTS: ------------ 1. COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY SOUTH KALAMASSERRY, CUSAT.P.O., PIN-682022, REPRESENTED BY ITS REGISTRAR. 2. THE REGISTRAR, COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY, SOUTH KALAMASSERRY, CUSAT.P.O., PIN-682022. R1,R2 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAI,SC, COCHIN UNIVERSITY OF SCIENCE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC No.7142 of 2012 APPENDIX PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF REPRESENTATION DT.4-2-2003. SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P2 TRUE COPY OF RELEVANT PAGES OF MINUTES OF 466TH MEETING OF SYNDICATE HELD ON 7-11-2003. EXT.P3 TRUE COPY OF MINUTES OF THE 468TH MEETING HELD ON 17-1-2004. EXT.P4 TRUE COPY OF CONFIRMED MINUTES OF THE 468TH MEETING. EXT.P5 TRUE COPY OF REPRESENTATION DATED 25-9-2006 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P6 TRUE COPY OF REPRESENTATION DATED 30-7-2008 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P7 TRUE COPY OF LETTER ISSUED BY THE PUBLIC INFORMATION OFFICER, CUSAT, DT.26-8-2008. EXT.P8 TRUE COPY OF REPRESENTATION DT-21-1-2009 FILED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P9 TRUE COPY OF REPRESENTATION DT. 27-1-2012 FILED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P10 TRUE COPY OF INTIMATION INFORMING THE DECISION OF THE 1ST RESPONDENT DATED 21-2-2012. EXT.P11 TRUE COPY OF MINUTES OF THE 423RD MEETING OF THE SYNDICATE DATED 5-5-2000. RESPONDENTS' EXHIBITS EXT.R1(a) TRUE COPY OF THE JUDGMENT IN O.P.No.9103/96 dtd. 20.6.1996. EXT.R1(b) TRUE COPY OF THE JUDGMENT IN O.P.No.3396/79 DATED 22.9.1982. EXT.R1(c) TRUE COPY OF THE JUDGMENT IN DAMODARAN V DR.PANKARAS, 1996(1) KLT 244 TRUE COPY css/ P.S.TO JUDGE ## **Dama Seshadri Naidu, J.** ------------------------------------------- WPC No.7142 of 2012 -------------------------------------------Dated this the 20[th] day of March, 2017 ## **JUDGMENT** ## **Introduction:** Denied promotion for his lacking the qualificaiton, an employee stagnated in the post, and later retired. He found another person, similalry situated, given the benefit of higher scale of pay by the employer. The employee claims it to be a “long-standing practice.” He applies for the benefit on the principle of parity; the benefit denied, he approached this Court. The fulcrum of his case is discrimination. Has he been discriminated agaisnt? The answer: No. ## **Facts:** 2. K. R. Viswanadhan, the petitioner, joined the respondent University on 1.8.1978 as a Gardener-cum-Road Mazdoor. During his tenure, he obtained promotions, the last one being Selection Grade Assistant in CUSAT. Though Viswanadhan’s juniors were promoted to the next higher post—Section Officer—he stagnated as Selection WPC No.7142 of 2012 2 Grade Assistant because he did not possess graduation, the basic qualification for the next promotion. Viswanadhan retired on 31.3.2011. 3. While Viswanadhan was serving, the respondent University extended the benefit of hihger scale of pay to one Mr.P.A.Thomas, said to be similarly placed as Viswanadhan was. The benefit was extended because Mr. P. A. Thomas could not be promoted to a higher post for he lacked qualification. Calling this conferment of higher pay a long-standing practice in the univerty, Viswanadhan too sought that benefit. When the University, through Ext.P10 proceedings, refused to accede to Viswanadhan's request, he filed the writ petition. ## **Submissions:** ## **Petitioner’s:** 4. The learned counsel for Viswanadhan has drawn my attention to Ext.P11 Senate proceedings issued by the University to hammer home his contention that Mr.P.A.Thomas, a similarly situated person, was extended the benefit. According to him, there WPC No.7142 of 2012 3 has been a long standing practice in the University to provide higher pay to the employees not promoted on the sole ground they did not possess the qualification, to wit, graduation. In the end, the learned counsel has submitted that the respondent University by denying that benefit to Viswanadhan, it has invidiously discriminated agasint him. It offends Article 14 of the Constitution of India. ## **Respondent’s:** 5. The learned standing counsel for the University, taking me through the counter affidavit filed by the University, has submitted that barring the solitary instance of Mr.P.A.Thomas, the University has allowed no higher scale of pay to any other employee, contrary to Viswanadhan’s assertion. As recorded in paragraph-3 of the counter affidavit, Mr.P.A.Thomas's case, according to the learned Standing Counsel, is special , more particularly, because of the decision taken by the Senate of the University. To my specific query, the learned counsel has, however, failed to explain how Mr.P.A.Thomas's case can be treated as a special one. He has nevertheless insisted that that was the only solitary instance. WPC No.7142 of 2012 4 6. The learned standing counsel has further submitted that by the time Mr.P.A.Thomas was extended the benefit, there was no cadre of Selection Grade Assistant; in fact, Mr.P.A.Thomas retired at a lower level. Then I queried whether Viswanadhan was promoted to the cadre of Selection Grade Assistant despite his lack of qualification, which benefit could not be extended to Mr. P. A. Thomas. The learned Standing Counsel has fairly submitted that Viswanadhan did have the qualification to be promoted as Selection Grade Assistant. Therefore, it could not be said that the University has extended any benefit to Viswanadhan over and above what he was entitled to. 7. Eventually, the learned Standing Counsel has drawn my attention to earlier judicial findings , illustratively, O.P.No.3396 of 1979 and Damodaran v Dr.Pankras[1] : This Court declared that providing any service benefits either by way of promotion or by way of higher scale of pay to unqualified employees is illegal. Thus, the learned Standing Counsel urges this Court to dismiss the writ petition. > 1 1996(1) KLT 244 WPC No.7142 of 2012 5 8. Heard the learned counsel for the petitioner and the learned Standing Counsel for respondents 1 and 2, besides perusing the record. ## **Issue:** Has the Universtiy discriminated against the petitioner in denying him the benefit of higher scale of pay, violating “a longstanding” practice, though others have been extended the benefit? ## **Discussion:** 9. Indeed, the issue raised by Viswanadhan runs in a narrow compass. The facts are not disputed. Viswanadhan lacked the qualification to be promoted as a Section Officer. But, he contends that there has been a long-standing practice in the University to extend higher scale of pay to an employee denied promotion for want of educational qualification. Extension of this benefit, according to him, is subject to two conditions: (a) the superseded officer must put in 15 years of service as a Senior Grade Assistant, and (b) a junior with qualification should have been promoted from the same cadre. WPC No.7142 of 2012 6 10. Viswanadhan maintains that, to earn the higher scale of pay, a stagnated employee needs to fulfil either of the abvoe contingencies—not both.The record, in the first place, does not reveal, nor has there been any particular instance brought to this Cour’s notice, that there has been, at any point of time, an established practice of providing higher scale of pay to employees denied promotion for want of qualification—even when they had fulfiled either of the above criteria. Indeed, there is no gainsaying the fact that Mr.P.A.Thomas, who was extended this benefit, was not arrayed as a party to this writ petition. So the legality of the University’s extending that benefit to him cannot be considered. 11. All the same, the University has tried its best to impress upon the Court about its action in granting the benefit to Mr. P. A. Thomas is unexceptionable: (1) that it was a rare, one-off situation faced by the University; (2) that the Senate has approved the sanction; (3) that the cadre of Selection-Grade Assistant was unavailable when Mr. P. A. Thomas was serving; (4) that this conferring of largesse has never been repeated; (5) and that the WPC No.7142 of 2012 7 University has faced severe audit obejction in this regard. The leanred counsel for Viswanadhan is quick to point out that to this day the benefit extended to Mr.P.A.Thomas has not been withdrawn, the audit objection notwithstanding. 12. As I have already observed, Selection Grade Assistant, the cadre to which Viswanadhan was promoted, prescribed a qualification which Viswanadhan fulfilled, so it cannot be said that he was extended any benefit over and above what he was entitled to. On the benefit extended to Mr.P.A.Thomas, as seen from Ext.P11, the Universty has provided no justification—convincing or not—to defend its action. All the above enumerated defences taken by the Uniersity are, at best, an after thought. But, as I have already observed, absent Mr. P. A. Thomas, Ext.P11’s legality is out of bounds. 13. That said, turning to the merits, I may observe that Viswanadhan, indeed, failed to establish that he is entiteld to the higher scale of pay because of his stagnation; nor could he demonstrate before this Court that there has been a consistent WPC No.7142 of 2012 8 practice of granting higher scale of pay to a person like him. So, it is too well-established to be contradicted that an illegality cannot be perpetuated in the name of equality or party. If it were an aspect of equality, it would be negative equality, which Article 14 has not recognised; on the contrary, it has shunned it. 14. There can be no cavil about an almost aphoristic dictum that Article 14 of the Constitution does not envisage negative equality, and it cannot be used to perpetuate any illegality. In Basawaraj & Anr. v. The Spl. Land Acquisition Officer[2] , the Supreme Court has held that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. That provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted a relief or benefit inadvertently or by mistake, such an order confers no legal right on others to get that relief. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality, it is trite, cannot be claimed in illegality and, therefore, cannot be enforced by a citizen or court negatively. > 2 AIR 2014 SC 746 WPC No.7142 of 2012 9 15. Basawaraj further observes that if an illegality and irregularity has been committed to favour an individual or a group of individuals, or a wrong order has been passed by a Judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality, or for passing a similarly wrong order. A wrong order or decision in favour of any party entitles no other party to claim benefits based on the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. 16. In Chaman Lal v. State of Punjab[3] , the Supreme Court has observed that if a wrong benefit has been conferred upon someone inadvertently or otherwise it may not be a ground for a court to grant similar relief to others. 17. Circling back to the facts, I may observe that this Court cannot be happy at the University’s shifting stand in extending a benefit—and illegally, at that—to one employee and brand it a special case. But I must furhter observe that the Court cannot issue 3 2014(15) SCC 715 WPC No.7142 of 2012 10 a mandamus to the University to do something which is palpably illegal or not sanctioned by law. Under these circumstances, I find no merit in the petitioner's contention. So, the writ petition stands dismissed. No order on costs. ## **sd/- Dama Seshadri Naidu, Judge** css/ true copy P.S.TO JUDGE