Laila L.S. v. University of Kerala & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 10TH DAY OF JANUARY 2012/20TH POUSHA 1933** **WPC.No. 11670 of 2011 (G) =====================** **PETITIONER** **===========** **LAILA L.S., DEPUTY REGISTRAR (ACADEMY-II) UNIVERSITY OF KERALA THIRUVANANTHAPURAM-695 034.** **BY ADV.SRI.N.SUGATHAN** ## **RESPONDENTS** **=============** **1 THE UNIVERSITY OF KERALA, REPRESENTED BY THE REGISTRAR THIRUVANANTHAPURAM-695 034.** **2 THE VICE-CHANCELLOR, THE UNIVERSITY OF KERALA THIRUVANANTHAPURAM-695 034.** **3 HARILAL S., JOINT REGISTRAR CAMPUS ADMINISTRATION KARIAVATTOM UNIVERSITY OF KERALA THIRUVANANTHAPURAM-695 581.** **R3 BY ADV. SRI.T.A.SHAJI R1 & R2 BY SRI.GEORGE POONTHOTTAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.12.2011, THE COURT ON 10.01.2012 DELIVERED THE FOLLOWING:** **dlk** ## **WPC.No. 11670 of 2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT. P1 : COPY OF ORDER NO. AD.AI.I.551/2010-1 DATED 31.03.2010 ISSUED BY THE 1ST RESPONDENT.** - **EXT. P2 : COPY OF G.O.(P) NO. 42/2010/P&ARD DATED 20.12.201.** - **EXT. P3 : COPY OF CIRCULAR DATED 28.02.2011 ISSUED BY THE UNIVERSITY OF KERALA.** - **EXT. P4 : COPY OF REPRESENTATION DATED 21.03.2011 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **EXT. P5 : COPY OF ORDER NO. AD.AI.I.551/2011-1 DATED 01.04.2011 ISSUED BY THE 1ST RESPONDENT.** - **EXT. P6 : COPY OF ORDER NO. AD.A.I./1/554/2011 DATED 01.062011 ISSUED BY THE 1ST RESPONDENT.** - **EXT. P7 : COPY OF ORDER NO. AD.A.I I/554/2011 DATED 04.06.2011 ISSUED BY THE 1ST RESPONDENT;** ## **RESPONDENTS EXHIBITS: NIL** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **dlk** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 11670 of 2011-G** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 10th day of January, 2012** ## **JUDGMENT** After the unification of the retirement age of University employees in tune with the Government Orders, the University issued a circular as per Ext.P3 modifying the period of probation. The question raised in the writ petition is whether, in the absence of amendment of the relevant University Statutes, the same could be enforced. The petitioner contends that the same is enforceable. The dispute between the petitioner and the third respondent regarding the eligibility for promotion to the post of Joint Registrar, is the ancillary question to be decided which depends upon the answer to the first question. 2. After the entry in service as Assistant Grade II, the petitioner obtained successive promotions and became an Assistant Registrar in the year 2008. Ext.P1 is a common order issued by which various persons were granted promotion to different posts. The petitioner is serial No.8 therein and the third respondent is serial No.9. Both have been promoted as Deputy Registrar. The order is dated 31.3.2010. According to the petitioner, going by the relevant provisions of the Kerala University First WPC.11670/2011 2 Statutes, 1977 the period of probation prescribed for persons appointed to various categories is one year from the date of joining duty within a continuous period of two years. The Government initially issued Ext.P2 order modifying the period of probation in the light of the unification of retirement age. Certain amendments to the Kerala State and Subordinate Service Rules were also proposed in tune with the proposals in Ext.P2. The University thereafter issued Ext.P3 order dated 28.2.2011. The period of probation has been reduced to six months duty within a continuous period of one year as regards the persons like the petitioner and third respondent. It is the case of the petitioner that she completed six months duty within a continuous period of one year on 30.9.2010 in the post of Deputy Registrar. No other test qualification is prescribed for satisfactory completion of probation. By a representation dated 7.3.2011 the petitioner requested the first respondent to declare her probation in the post of Deputy Registrar. 3. As regards the third respondent, it is pointed out that even though he joined duty in the post of Deputy Registrar on 1.4.2010, before completing duty of six months in that post, he took earned leave for 180 days from 1.7.2010 to 27.12.2010 and commuted leave from 28.12.2010 to 7.1.2011 and he rejoined in the post of Deputy Registrar on 10.1.2011. Therefore, he will not be completing the period of probation of six months WPC.11670/2011 3 on duty within a continuous period of one year in the post of Deputy Registrar. 4. In the meanwhile, on attainment of superannuation of two Joint Registrars, vacancies arose with effect from 1.4.2011 and the petitioner staked a claim for promotion in one of the vacancies, as per Ext.P4. It is her case that ignoring her claim, the third respondent and another person were promoted as per Ext.P5. These orders are under challenge in this writ petition. Ext.P6 is a subsequent order passed by the University declaring the completion of probation of the third respondent with effect from 10.4.2011. Ext.P7 is a later order dated 4.6.2011 whereby the probation of various officers including that of the petitioner has been declared with effect from 1.10.2010. 5. Heard learned counsel for the petitioner Shri N. Sugathan, learned Standing Counsel for the University Shri George Poonthottam and learned counsel for the third respondent Shri T.A. Shaji. 6. Shri N. Sugathan, learned counsel for the petitioner contended that the modified period of probation as provided under Ext.P3 will apply as far as the petitioner and the third respondent and other officers, etc. of the University are concerned. In fact, the University also followed the same by declaring the probation of both the petitioner and third respondent as WPC.11670/2011 4 evident from Exts.P6 and P7. The declaration of probation of the third respondent as per Ext.P6 cannot be accepted since he had not completed the required period of probation even by the modified order, as he was on leave for six months during the period of probation and therefore he will not be deemed to have completed duty in the post of Deputy Registrar for a period of six months within a continuous period of on year. And as on 1.4.2011 he has not satisfactorily completed the probation in the post of Deputy Registrar and he was not eligible to be considered for promotion as Joint Registrar. The petitioner had completed her probation as on 30.9.2010 and going by Ext.P7 it has been declared also with effect from 1.10.2010. Therefore, the claim of the petitioner for promotion would not have been ignored and the promotion granted to the third respondent is arbitrary. 7. Learned counsel for the petitioner relied upon the principles stated by a Full Bench of this Court in V **arghese & others v. State of Kerala and others** (1981 KLT 458 - FB) that the question of promotion would be determined as on the date of occurrence of vacancy. He also relied upon the decision of the Apex Court in **Haridasan v. High Court of Kerala** (2000 (3) KLT 430 - SC) as well as the decision of a learned Single Judge of this Court in **Appukuttan Nair v. State of Kerala** (1990 (2) KLT 806). WPC.11670/2011 5 8. The stand taken by the University and the third respondent in their separate counter affidavits shows that Ext.P3 cannot be invoked by the petitioner as the Kerala University First Statutes was not amended in tune with it. Therefore, the period of probation will be one year from the date of promotion within a continuous period of two years. If that be so, in the light of Rule 28(a) of Part II of KS & SSR a probationer cannot be superseded for promotion to a higher post by his junior in the vacancy which arose during the period of probation and if he is otherwise eligible. It is therefore submitted that when the petitioner and the third respondent were promoted, Ext.P3 order was not in force. Therefore, the period of probation is one as prescribed by the relevant University Statutes. Since the vacancy arose during the period of probation, he is entitled to be considered for promotion. It is pointed out that Ext.P3 cannot have any effect so as to determine the rights of parties. 9. Learned counsel for the third respondent, Shri T.A. Shaji submitted that Ext.P3 is only an executive order which cannot supersede a statutory prescription in case of conflict which position is well settled. 10. In answer to this, Shri N. Sugathan, learned counsel for the third respondent submitted that the University cannot evidently go back on Ext.P3 as the third respondent also has been benefited by Ext.P6 order WPC.11670/2011 6 declaring his probation in tune with Ext.P3 itself. Therefore, after the order Ext.P3 has been implemented in respect of various parties, the contention otherwise cannot be raised at all. It is also pointed out that the third respondent has not challenged Ext.P3 in any proceedings. Shri T.A. Shaji, in answer to the above contention, submitted that the period of probation of the third respondent was governed by the relevant University First Statutes, 1977 and therefore it is not necessary for the third respondent to separately challenge Ext.P3 before this Court. The illegality and unenforceability of Ext.P3 which is in conflict with the relevant provisions of the Statute, can be agitated by the third respondent in these proceedings, as the same is sought to be enforced by the petitioner. 11. The provisions under the Kerala University First Statutes, 1977 therefore will have to be considered. Chapter 4 therein relates to the terms and Conditions of Service of the Non teaching Staff of the Kerala University (Other than University Teachers). Statute 2 of Part I makes applicable the relevant rules of Kerala State and Subordinate Service Rules, 1959 and the Government Servants Conduct Rules, 1960 as amended from time to time in so far as may be applicable and except to the extent expressly provided for in the Statutes. Statute 9 of Part II deals with the probation. It reads as follows: WPC.11670/2011 7 “9. Probation and confirmation of non-teaching staff:- (1) Every person appointed to class I, II and III post shall, from the date on which he joins duty by on probation for a period of one year within a continuous period of two years: Provided that where there are more than one grade to the same category and duties and responsibilities attached to the various grades are one and the same and appointment to the higher grades are made by promotion from the lower grades, then probation shall be insisted only in the lowest grade to such category. Provided that it shall be competent for the Syndicate to extend the period of probation for a period not exceeding one year for good and sufficient reasons. (2) If, on expiry of the prescribed period or extended period of probation, the Syndicate decides that a person appointed to any class or category is not suitable for continuance in the post to which he has been appointed, it shall discharge him from service or revert him to his original appointment as the case may be, after giving him a reasonable opportunity of showing cause against the action proposed to be taken against him. (3) On satisfactory completion of probation, every person shall be declared to have satisfactorily completed his probation by a written order of the competent authority. Thereafter, he shall become eligible for confirmation.” Going by the same, the period of probation will be a period of one year WPC.11670/2011 8 within a continuous period of two years. Under Statute 9(3), on satisfactory completion of probation, every person shall be declared to have satisfactorily completed his probation by a written order of the competent authority. Thereafter, he shall become eligible for confirmation. 12. Learned counsel for the petitioner, Shri N. Sugathan submitted that Ext.P3 order passed by the University clearly modifies the period of probation. It is pointed out that as on the date of occurrence of vacancy, the third respondent has not completed the period of probation provided under Ext.P3, and was no extension also. Therefore, in the light of the principles stated by this Court in **Appukuttan Nair's case** (1990 (2) KLT 806), he is not eligible for any extension of probation. 13. The judgments relied upon by Shri N. Sugathan, viz. **Varghese's case** (1981 KLT 458 - FB) and **Haridas's case** (2000 (3) KLT 430 - SC) definitely will be applicable in cases where as on the date of occurrence of vacancies, the juniors alone are qualified for promotion. Rule 28(a) of KS & SSR and its proviso, if applied, the senior will be eligible for promotion in cases wherein the conditions provided in the proviso are applicable. 14. In **Appukuttan Nair's case** (1981 KLT 806 - FB), the Full WPC.11670/2011 9 Bench was of the view that the qualification for promotion will have to be considered in terms of the date of occurrence of vacancy. 15. The crucial question herein is whether it is the period provided under Ext.P3 or that provided under the Statute that will apply. The legal position with regard to the same is clear from various decisions of the Apex Court and this Court that an executive order cannot modify or amend by a statutory provision. In case of conflict, the provisions of the Statute will override. This is the principle relied upon by the learned Standing Counsel for the University and learned counsel for the third respondent. 16. The promotion of the third respondent along with that of the petitioner is prior to the issuance and implementation of Ext.P3, obviously. The vacancies to which they were promoted arose on 31.3.2010 and the order Ext.P1 is also of the same date. As on that date the period of probation will evidently be governed by the provisions of Statute 9. The order Ext.P3 is dated 28.2.2011, much after Ext.P1 order of promotion was issued. Therefore, on that premise also it can be seen that the third respondent was undergoing probation in the light of Statute 9. In terms of Ext.P3 circular, the Statute 9 has not been amended also, so far. 17. The petitioner's contention therefore that the third respondent was not eligible for consideration for promotion, cannot be accepted. If the WPC.11670/2011 10 period of probation is one year within a continuous period of two years, the vacancy in the higher cadre has arisen within the period of probation. He was provisionally promoted also. Therefore, the promotion is perfectly justified in terms of Rule 28(a) of Part II of KS & SSR. If only the period of probation is one covered under Ext.P3, the petitioner can get promoted. 18. Learned counsel for the petitioner invited my attention to the definition of “approved probationer” in the relevant rules of KS & SSR to contend for the position that if the period of his probation is to be taken as six months, he was not an approved probationer in the lower post of Deputy Registrar. He was also not a probationer since the period of probation already expired on 31.3.2011 and was not extended further. This aspect can be considered in favour of the petitioner only if it is seen that Ext.P3 order applies. But evidently, Ext.P3 which is not in tune with the Statute, cannot have any applicability in the absence of an amendment of the First Statutes. If an amendment had been brought into force, or is later adopted with retrospective effect, the position would have been otherwise. 19. Even if it is true that Ext.P3 is an order passed by the University and it was being implemented, when it is confronted with the provisions of the Statute, the statutory provision alone will govern the matter. 20. Then the other question is with regard to the declaration of WPC.11670/2011 11 probation of the third respondent as per Ext.P6. Ext.P6 is dated 1.6.2011. The order Ext.P6 itself will show that he has availed 191 days of eligible leave during the period of probation. How that period is reckoned for making him eligible for such declaration, is not clear from Ext.P6. No averments are made in the counter affidavit also. The University evidently, has declared the probation by treating the period of probation as six months. That definitely goes against their own contentions in the counter affidavit. Therefore, the said aspect will be reconsidered by the University, as both cannot go together. 21. For all these reasons, the reliefs sought for by the petitioner, viz. to quash Ext.P5 and to direct the University to promote her as Joint Registrar, cannot be granted and the same is rejected. But the petitioner is entitled to succeed, as regards the challenge against Ext.P6. In order to declare the probation of the third respondent in terms of Statute 9, the University will have to pass appropriate orders in the light of the findings rendered above and in the light of the stand taken by the respondents that the Statute alone will apply. Ext.P6 is quashed to this extent. If redeclaration as above will have any impact on his promotion, the parties will be given due notice in the matter before taking a decision. This shall be done expeditiously, at any rate, within a period of six weeks from the date WPC.11670/2011 12 of receipt of a copy of this judgment. The writ petition is allowed to the above extent. No costs. **(T.R. Ramachandran Nair, Judge.)** **kav/**