High Court of KeralaSingle Judge2021-03-09Writ petitions allowed; reversions quashed; per...

Netra Bahadur Chetri v. State of Kerala and Others; Bam Dev Sharma v. State of Kerala and Others

Case / Petition Number:WP(C).No.719/2017 (L) & WP(C).No.744/2017

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Amit Rawal
Judgment Date: 2021-03-09
Court Decision / Holding: Reversion orders quashed; writ petitions allowed. Petitioners aged over 50 receive permanent exemption from the obligatory departmental tests, and their continuance in the Library/Laboratory Assistant posts is protected under the statutory framework. Pay/pensionary implications to be adjusted consistent with the exemption.
Final Disposition: Writ petitions allowed; reversions quashed; permanent exemption from testing for petitioners aged 50+ recognized; government orders to revert invalidated.

Parties to the Case

Appellants / Petitioners

Netra Bahadur Chetri
Bam Dev Sharma

Respondents

State of Kerala represented by the Secretary to Government, Higher Education Department, Secretariat, Thiruvananthapuram
Director of Collegiate Education, Thiruvananthapuram
Deputy Director of Collegiate Education, Hospital Road, Ernakulam
Principal, Sacred Heart College, Thevara, Kochi

Legal Representation & Advocates

Counsels for Petitioners

• Sri T.B. Hood
• Sri Amal Kasha
• Smt. M. Isha

Counsels for Respondents

• Government Pleader

Case Synopsis & Summary

The petitioners, two Laboratory Assistants at Sacred Heart College, Thevara (a private aided college under Mahatma Gandhi University), challenged government‑ordered reversions from Library/Laboratory Assistant posts after they crossed the age of 50. They contended that permanent exemption from the obligatory departmental tests exists for employees aged 50 and above under Rule 57 of the Mahatma Gandhi University Statute 1997 and related provisions in Rule 72 and the Kerala Service Rules, and that the read together Statutes exempt them from the attender’s test. They argued that the PSC had not conducted attenders tests consistently, and Exts show delayed or non-conducted testing; hence reversions were illegal and would adversely affect their pension and salary. The respondents argued that qualification norms and the attender test remain essential, and that even if there was an exemption, the petitioners failed to meet the required conditions; they referenced the Government circular E1/530/18 directing reversions and relied on the Supreme Court’s decision in Pramod Kumar v. UP Secondary Education Services Commission to justify action against unqualified staff. The High Court, after examining the statutory framework, held that there is a permanent exemption from test for those over 50, and the reversions were therefore unsustainable. The writ petitions were allowed and the reversions quashed, with clerical/ pensionary implications addressed.

Provisions of Law Cited

Proviso to Statute 44(12) of Mahatma Gandhi University Statute 1997Rule 57 (Permanent exemption from test qualification)Rule 72 (Kerala Service Rules applicability to non-teaching staff)Kerala Service Rules Part I, Chapter IIRule 44(12) Part C of Mahatma Gandhi University Statute 1997SSLC or equivalent with a pass in Attender's Test conducted by the Kerala Public Service CommissionPass in Form III (Std.VII new) or equivalentFive years regular service under private CollegesRule 12(7) of Kerala Service Rules Part-I Chapter II (explanation of attender test eligibility)

Legal Doctrines & Maxims

Permanent exemption from test qualification for employees aged 50 years and above (Rule 57)
Conjoint reading of statutes to arrive at an intelligible reading of the statutory framework
Prohibition against arbitrary or selective grant of benefits (cannot adopt a pick-and-choose policy)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submitted that they are permanent staff aged over 50, permanently exempt from passing the obligatory departmental tests under Rule 57 of the Mahatma Gandhi University Statute 1997 and Rule 72 of the Kerala Service Rules; they argued the test (attender) was not consistently conducted by KPSC and recent government orders and RTI material show the inadmissibility of reverting such employees; the combined statutory text requires only the specified qualification and attender test in certain conditions, and the age-based exemption overrides reversion orders; they urged the court to quash the reversion and retain their positions given the statutory exemption and potential pension implications.

Contentions of Respondents

The respondents contended that attainment of required qualifications and passing the attender test are essential; the petitioners’ continuance is subject to passing the attender test; PSC had conducted five tests but the petitioners did not pass; Government circular E1/530/18 instructs revert in such cases; rely on Pramod Kumar v UP Secondary Education Services Commission to argue that lack of qualification cannot be promoted; asserted that permanent exemption from tests cannot supersede statutory requirements in the private college context; sought dismissal of the writ petitions or denial of the relief sought.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Pramod Kumar v. UP Secondary Education Services Commission and Others	2008 (7) SCC 153	Mentioned Only	Cited to illustrate the principle that a person lacking qualification cannot be promoted; used as a reference point but not adopted to defeat the statutory age-based exemption granted here.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942** ## **WP(C).No.719 OF 2017(L)** ## **PETITIONER:** **NETRA BAHADUR CHETRI AGED 51 YEARS LABORATORY ASSISTANT, SACRED HEART COLLEGE, THEVARA, KOCHI 682013** **BY ADVS. SRI.T.B.HOOD SRI.AMAL KASHA SMT.M.ISHA** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695001** - **2 THE DIRECTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM 695001** - **3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION HOSPITAL ROAD, ERNAKULAM 682011** - **4 THE PRINCIPAL SACRED HEART COLLEGE, THEVARA, KOCHI 682013 BY GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2021, ALONG WITH WP(C)744/2017(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.719 & 744 OF 2017** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942 WP(C).No.744 OF 2017** ## **PETITIONER:** **BAM DEV SHARMA AGED 50 YEARS LABORATORY ASSISTANT, SACRED HEART COLLEGE, THEVARA, KOCHI 682 013.** **BY ADVS. SRI.T.B.HOOD SRI.AMAL KASHA SMT.M.ISHA** ## **RESPONDENTS:** **1 STATE OF KERALA REP. BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPRUAM 695 001. 2 THE DIRECTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM 695 001. 3 THE DEPUTY DIRECTOR OF COLLEGATE EDUCATION HOSPITAL ROAD, ERNAKULAM 682 011. 4 THE PRINCIPAL SACRED HEART COLLEGE, THEVARA, KOCHI 682 013.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.03.2021, ALONG WITH WP(C).719/2017(L), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.719 & 744 OF 2017** **3** ## **JUDGMENT** [ WP(C).Nos.719 & 744 of 2017] ## **Dated this the 9th day of March 2021** The petitioners are Laboratory Assistants of Sacred Heart College, Thevara, a private aided colleges affiliated to Mahatma Gandhi University and had crossed the age of 50 years. 2. Learned counsel appearing on behalf of the petitioners submitted that as per the proviso to statute 44(12) of Mahatma Gandhi University Statute 1997, continuance of the petitioners in the post of Library Assistants was subject to their passing in one of the five consecutive attenders' test conducted by Kerala Public Service Commission for the last grade staff of private colleges, thus, for all intends and purposes the attenders test conducted by the Public Service Commission would come within the purview of obligatory departmental test as explained in Rule 12(7) of Kerala Service Rules Part-I Chapter II. Statute No.72 of Mahatma Gandhi University Statute 1997 and the rules contained in Rules 1 and 2 of Kerala Service Rules apply to the non-teaching staff of private colleges. A conjoint reading of the statutes and the explanation makes it clear that the petitioners are permanently **WP(C).No.719 & 744 OF 2017** **4** exempted from passing the obligatory departmental test. Kerala Public Service Commission did not conduct the attenders test frequently as per the information received under the Right to Information Act. Vide Ext.P5 the reversion of the petitioners was ordered on account of having not undergone the attenders test. Such action was assailed in this Court and there is interim stay. 3. Rule 57 of the aforementioned statute also grant exemption from undergoing the obligatory test in case the employees are above the age of 50 years reliance of Rule as sought for by the respondents would not be applicable. Conditions enumerated in clause 44 of 72 would also not apply. 4. On the other hand Sri.B.Harishkumar, learned Government Pleader submitted that the aforementioned Rule prescribes the qualifications to be appointed as Library Assistants/Laboratory Assistants and required to pass in Form III (Std.VII new) or equivalent and clear attender test conducted by Kerala Public Service Commission or five(5) years of regular service under Private Colleges, provided that the last grade staff who possess qualifications mentioned above except pass in attender test and are in service, would be eligible for **WP(C).No.719 & 744 OF 2017** **5** appointment in the order of seniority. Their continuance in Lab/Laboratory Assistant was subject to their pass in one of the five consecutive attender tests conducted by Kerala Public Service commission. Government instructed the Director of Collegiate Education and Deputy Director of Collegiate Education to ensure strict compliance of the directions for reverting the petitioners. After the appointment of the petitioners, the Public Service Commission conducted test five times but the petitioners did not pass. Though the salary recieved by the unqualified hands need not be recovered, but their pay shall be required to be re-fixed if they had not been promoted and would definitely have effect on the pensionary benefits too. In this regard, a circular bearing No.E1/530/18 dated 21.02.2018 was issued by the Government. Petitioners cannot claim the exemption as sought for in view of the ratio decidendi culled from the Hon'ble Supreme Court in _**Pramod Kumar v. UP Secondary Education Services Commission and Others**_ [2008 (7) SCC 153] wherein it was held that a person failed to have a qualification cannot be promoted and urged this Court for dismissal of this writ petition. 5. I have heard the learned counsel for the parties and **WP(C).No.719 & 744 OF 2017** **6** appraised the paper book. 6. Rule 44(12) of Part C of Mahatma Gandhi University Statute 1997 deals with a minimum qualification for various categories of non-teaching staff in private colleges as SSLC or equivalent with pass the written test as conducted by Kerala Public Service Commission. The same reads as under: 12. Library Assistants/ Laboratory Assistants SSLC or equivalent with a pass in Attender's Test conducted by the Kerala Public Service Commission. Technical qualification or experience required in the particular section, department or institution: 1) Pass in Form III (Std.VII new) or equivalent 2) Pass in Attender's Test conducted by the Kerala Public Service Commission or 1) Five years regular service under private Colleges 2) Pass in Attender's test conducted by the Kerala Public Service Commission 7. No doubt the petitioners while working as last grade were promoted as library assistants but had to undergo the test which, as per the stand of the respondents, is being held by Kerala Public Service Commission. In one of the writ petitions, **WP(C).No.719 & 744 OF 2017** **7** W.P(C) No.15891/2015, a statement was made by the learned counsel that the petitioner regarding accord of benefit. The said writ petition is dismissed as infructuous. The Government cannot adopt pick and choose policy by granting the benefits to few and deny the same to others. I cannot remain unmindful of applicability of Rule 57 where the permanent exemption from test qualification has been granted, the same reads as under: **“Permanent exemption from test qualification:-** All members of the non-teaching staff of private colleges who have attained the age of 50 years shall stand permanently exempted from passing the obligatory departmental tests as in the case of Government servants.” Rule 72 of the 1997 statute no doubt stipulates that Kerala Service Rules would be applicable to non-teaching staff but the one relied upon would not take away the right of the petitioners and exemption granted would not permit the respondents to revert the petitioners. The reversion orders are quashed. The writ petitions are allowed. ## **Sd/-** ## **AMIT RAWAL** **JUDGE** nak **WP(C).No.719 & 744 OF 2017** **8** ## **APPENDIX OF WP(C) 719/2017** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 27.04.2007 ISSUED BY THE 3RD RESPONDENT ALONG WITH THE STATEMENT ANNEXED TO THE ORDER** **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 08.05.2015 SENT BY THE 3RD RESPONDENT TO THE COLLEGES** **EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 19.09.2016 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT** **EXHIBIT P4** - **TRUE COPY OF THE LETTER DATED 18.10.2016 SENT BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT** **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 13.12.2016 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT** **EXHIBIT P6 TRUE COPY OF THE GAZETTE NOTIFICATION DATED 01.08.1995** **EXHIBIT P7 TRUE COPY OF THE GOVERNMENT ORDER DATED 20.07.2015** **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 20.10.2015 IN WRIT PETITION (CIVIL) NO. 31896/2015** **WP(C).No.719 & 744 OF 2017** **9** ## **APPENDIX OF WP(C) 744/2017** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TREU COPY OF THE ORDER DATED 19.9.2012 ISUED BY THE 3RD RESPONDENT ALONG WITH THE STATEMENT ANNEXED TO THE ORDER** **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED 8.5.2015 SENT BY THE 3RD RESPONDENT TO THE COLLEGES** **EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 19.9.2016 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT** **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 18.10.2016 SENT BY THE 4TH RESPONDET TO THE 3RD RESPONDENT** **EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 13.12.2016 SENT BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT** **EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDER DATD 20.7.2015** **EXHIBIT P7** **TRUE COPY OF THE ORDER DATD 20.10.2015 IN WRIT PETITION (CIVIL NO. 31896/2015**