OP.No.10208 of 2002 (M) - Dr. A. Augustin v. Kerala Agricultural University and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 11TH DAY OF FEBRUARY 2016/22ND MAGHA, 1937** ## **OP.No. 10208 of 2002 (M)** ## **-------------------------** ## **PETITIONER(S):** **-------------------------DR.A.AUGUSTIN, ASSOCIATE PROFESSOR, ALL INDIA CO-ORDINATE PROJECT ON MEDICINAL AND AROMATIC PLANTS, COLLEGE OF HORTICULTURE KERALA AGRICULTURE UNIVERSITY, VELLANIKKARA, THRISSUR.** **BY ADVS.SRI.P.T.DINESH SRI.C.N.SAMEER** ## **RESPONDENT(S):** **----------------------------** **1. KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR, REPRESENTED BY THE REGISTRAR.** ## **2. THE CHANCELLOR OF KERALA AGRICULTURAL UNIVERSITY, GOVERNOR'S SECRETARIAT, THIRUVANANTHAPURAM.** ## **3. STATE OF KERALA REPRESENTED BY ITS** **CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.** **4. SMT.DR.N.REMABHAI PROFESSOR AND HEAD, K.A.U RICE RESEARCH STATION MANKOMBU.** **5. ACHAMMA UMMEN PROFFESSOR DEPARTMENT OF PLANT GRADING, COLLEGE OF HORTICULTURE AGRICULTURAL UNIVERSITY, VELLANKKARA.** ## **6. DR.T.M.KURIAN** **ASSOCIATE PROFESSOR (NC), SUGAR CANE RESEARCH STATION THIRUVALLA.** ## **7. DR.SUBRAMINIA IYER** **ASSOCIATE PROFESSOR (NC), COLLEGE OF AGRICULTURE VELLAYANI.[REMOVED]** **(ADDL. RESPONDENTS 4 TO 7 ARE IMPLEADED AS PER ORDER DATED 14.02.03 IN I.A NO.57335 OF 2002)** **[ADDL.R7 IS REMOVED FROM THE PARTY ARRAY AS PER ORDER DATED 02.12.2009 IN IA 14949/09.]** **CONTD..2..** **.. 2 ..** ## **OP.No. 10208 of 2002 (M)** ## **8. DR.C.T.ABRAHAM** **ASSOCIATE PROFESSOR & HEAD, ICRP OF WEED CONTROL DEPARTMENT OF AGRONOMY, COLLEGE OF HORTICULTURE, KAU VELLANIKKARA, THRISSUR. (ADDL.R8 IS IMPLEADED AS PER ORDER DATED 08.04.2003 IN IA 18103/03).** **R, BY ADV. GOVERNMENT PLEADER SMT. SUNITHA VINOD R,R1&2 BY ADV. SRI.N.N.SUGUNAPALAN (SR.) R,R5 BY ADV. SRI.KRB.KAIMAL (SR.) R,R1&2 BY ADV. SRI.N.D.PREMACHANDRAN, SC, AGRL.UNTY. R1-R2 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA,SC,KERALA AGRICULTURAL UNIVERSI** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP.No. 10208 of 2002 (M) -----------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** |**EXT.P1-**|**TRUE COPY OF THE ORDER NO.GA/32514/A1/78 DATED 16.12.78**| |---|---| |**EXT.P2-**|**TRUE COPY OF S.R.O.NO.264/72**| |**EXT.P3-**|**TRUE COPY OF NOTIFICATION DATED 22.12.1989**| |**EXT.P4-**|**TRUE COPY OF THE RELEVANT EXTRACT OF ORDER**| ||**NO.GA/C1/3282/86(I) DATED 16.6.1986 ISSUED BY THE UNIVERSITY.**| |**EXT.P5-**|**TRUE COPY OF THE RELEVANT EXTRACT OF ORDER**| ||**NO.GA/C1/3282/86(II) DATED 16.6.86 ISSUED BY THE UNIVERSITY.**| |**EXT.P6-**|**TRUE COPY OF THE CIRCULAR DATED 29.10.1988 ISSUED BY THE**| ||**FIRST RESPONDENT.**| |**EXT.P7-**|**TRUE COPY OF THE APPLICATION ON 29.11.88 FOR UP-**| ||**GRADATION SENT BY THE PETITIONER.**| |**EXT.P8-**|**TRUE COPY OF THE REPRESENTATION DATED 16.11.1988 SENT BY**| ||**THE PETITIONER TO THE FIRST RESPONDENT.**| |**EXT.P9-**|**TRUE COPY OF THE REPRESENTATION DATED 21.5.1992 SENT BY**| ||**THE PETITIONER TO THE FIRST RESPONDENT.**| |**EXT.P10-**|**TRUE COPY OF THE ORDER DATED 20.11.1991 ISSUED BY THE**| ||**UNIVERSITY TO THE PETITIONER.**| |**EXT.P11-**|**TRUE COPY OF THE ORDER NO.AGE.CDL./GA/P2/49043/93 DATED**| ||**23.3.1994 ISSUED BY THE UNIVERSITY.**| |**EXT.P12-**|**TRUE COPY OF THE ORDER NO.G.O.(MS)NO.190/93AD DATED**| ||**22.9.1993 ISSUED BY THE UNIVERSITY.**| |**EXT.P13-**|**TRUE COPY OF THE LETTER NO.GA/K1/2241/934 DATED 21.11.1995.**| |**EXT.P14-**|**TRUE COPY OF THE REPRESENTATION DATED 24.8.1996.**| |**EXT.P15-**|**TRUE COPY OF THE REPRESENTATION DATED 25.3.1997.**| |**EXT.P16-**|**TRUE COPY OF THE ORDER NO.GAC27935/2001 DATED 31.3.2001.**| |**EXT.P17-**|**TRUE COPY OF THE ORDER NO.ES(2)2010/71-1/2000-2001 DATED**| ||**23.6.2001 AND PURSUANT TO THE SAME A PAY SLIP WAS ISSUED.**| ||**CONTD..2..**| **.. 2 ..** ## **OP.No. 10208 of 2002 (M)** **EXT.P18TRUE COPY OF THE JUDGEMENT IN O.P.NO.13974 OF 1999 DATED 13.11.2001. EXT.P19TRUE COPY OF THE REPRESENTATION DATED 20.3.2002. EXT.P20TRUE COPY OF THE ORDER DATED 23.3.2002. EXT.P21TRUE COPY OF THE ORDER NO.GA/C1/19669/93/D-DIS. DATED 16.11.1993. EXT.P22TRUE COPY OF THE REPRESENTATION DATED 3.4.2002. EXT.P23TRUE COPY OF THE REPRESENTATION DATED 4.12.2000. EXT.P24TRUE COPY OF THE REPRESENTATION DATED 5.4.2002.** **EXT-P25 – TRUE COPY OF RELEVANT PART OF G.O.MS. NO.401/81/AD DATED 21.12.1981** **EXT-P26 – TRUE COPY OF RELEVANT PART OF ORDER NO.GA/64041/C1/79 DATED 11.8.1987 BY THE REGISTRAR** **EXT-P27 – TRUE COPY OF THE RELEVANT PART OF NOTIFICATION NO. NO.318811/AG P4/72/AD DATED 15[TH] JUNE 1972** **EXT-P28 – TRUE COPY OF RELEVANT PART OF NOTIFICATION NO.49098/AG.P5/72/AD DATED 30[TH] AUGUST, 1972** - **EXT.P29 - TRUE COPY OF THE NOTIFICATION NO.GA/E3/981/2004 DATED 16[TH] JUNE 2009 BY THE REGISTRAR** - **EXT-P30 – TRUE COPY OF THE ORDER NO.GA(1)92777/76(11) DATED 1.1.1977** **EXTP31 - TRUE COPY OF THE NOTIFICATION NO.GA/K3/31926/89 DATED 13.11.1989 BY THE REGISTRAR** - **EXT-P32 – TRUE COPY OF THE RELEVANT PART OF THE MINUTES OF THE 414[TH] MEETING OF THE EXECUTIVE COMMITTEE HELD ON 13.6.2005** **EXT-P33 – TRUE COPY OF THE ORDER NO.GA/C1/21318/05 DATED 07.09.2005** - **EXT.P34 – TRUE COPY OF LETTER NO.ESA2/25316/08 DATED 13.9.2010 BY THE COMPTROLLER** **CONTD..3..** ## **..3.. OP.No. 10208 of 2002 (M)** **EXT-P35 –TRUE COPY OF THE ORDER NO.GA/C2/23346/99(II) DATED 08.07.1999** **EXHIBIT-P35(A) – TRUE COPY OF ORDER NO. GA/C2/23346/99(III) DATED 08.07.1999 BY THE REGISTRAR** **EXT-P35(B) – TRUE COPY OF THE ORDER NO. GA/C2/23346/99(541) DATED 29.1.2008** **EXT-P36 – TRUE COPY OF THE PROCEEDINGS NO.GA/9312/A1/81(II) DATED 25.3.1981** **EXT-P36(A) – TRUE COPY OF ORDER NO.GA/C2/28789/10 DATED 22/10/2011** **EXT-P36(B) – TRUE COPY OF THE LETTER NO.ACV(2)/98/86 DATED 21.3.2012 BY THE DEPUTY COMPTROLLER ALONG WITH THE REVISED PAY/LEAVE SALARY SLIPS OF DR.N.REMA BAI** **EXT-P37 – TRUE COPY OF THE ORDER NO.GA/C2/30002/11 DATED 20-9-2011 BY THE REGISTRAR** **EXT-P37(A) – TRUE COPY OF THE ORDER NO.GA/C2/23346/99(540) DATED 25.8.2007 BY THE REGISTRAR** **EXT-P37(B) –TRUE COPY OF THE LETTER NO.ESA1/1369/1/2008, THE PAY/LEAVE SALARY SLIP ISSUED BY THE DEPUTY COMPTROLLER ON 2.3.2012** **EXT-P38 – TRUE COPY OF THE LETTER NO.F.2-3/97(PS) DATED 17.3.1999 BY THE UGC TO THE VICE CHANCELLOR, KAU** **EXT-P39 – TRUE COPY OF ORDER NO.GA/C2/39123/09 DATED 30/09/2010** **EXT-P39(A) – TRUE COPY OF THE LETTER NO.ES(1)/1124/122-IV/98-99 DATED 9.12.2010.** ## **EXT-P40 - TRUE COPY OF THE LETTER DATED 31.8.1991 TO THE REGISTRAR** **EXHIBIT-P40(A) - TRUE COPY OF THE ORDER NO.UGC CELL (1) 38307/91 DATED 30.9.1991 BY THE DEPUTY REGISTRAR (ADMN –II)** **EXT-P40(B) - TRUE COPY OF THE RELEVANT PART OF THE FORM FOR EXERCISING OPTION UNDER UGC/ICAR SCALE OF PAY** **EXT-P40(C) – TRUE COPY OF THE RELEVANT PART OF THE OPTION DATED 21.12.1993** **CONTD..4..** **.. 4 ..** ## **O.P. NO.10208 OF 2002 (M)** ## **EXT-P41 – TRUE COPY OF THE JUDGMENT DATED 9.8.2012 IN W.P.(C)NO.25175/2007 OF THIS HON’BLE COURT** **EXT-P42 – TRUE COPY OF THE JUDGMENT DATED 12.10.2012 IN W.P.(C)NO.23817/2006 OF THIS HON’BLE COURT** **EXT-P43 – TRUE COPY OF THE ORDER NO.GA/L1/34299/2007 DATED 14.12.2012** - **EXT-P44 – TRUE COPY OF THE RELEVANT PART OF THE MINUTES OF THE 116[TH] GENERAL COUNCIL OF KERALA AGRICULTURAL UNIVERSITY** - **EXT-P45 – TRUE COPY OF ORDER NO.GA/C1/34399/2012 DATED 3.1.2013 BY THE REGISTRAR** - **EXT-P46 – TRUE COPY OF THE ORDER DATED 3.12.2012 BY THE CHIEF INFORMATION COMMISSIONER, THE STATE INFORMATION COMMISSIONER, KERALA** - **EXT-P47 – TRUE COPY OF THE LETTER DATED 18.2.2013 SUBMITTED BY THE PETITIONER TO THE REGISTRAR** - **EXT-P48 – TRUE COPY OF THE LETTER NO.GA/C2/4801/13 DATED 9.5.2013, THE MINUTES OF THE PERSONAL HEARING HELD ON 4.1.2013** - **EXT-P49 – TRUE COPY OF THE REPRESENTATION DATED 2.5.2013 SUBMITTED BY THE PETITIONER TO THE REGISTRAR** - **EXT-P50 – TRUE COPY OF THE JUDGMENT DATED 26.5.2015 IN W.P.(C)NO.16525/2012** - **EXT-P51 – TRUE COPY OF THE ORDER NO.GA/C2/3528/2015 DATED 20.11.2015 BY THE REGISTRAR** **EXT-P52 – TRUE COPY OF PAY/LEAVE SALARY SLIP NO.ACV(3)/1376/15 DATED 23.11.2015 BY THE SENIOR DEPUTY COMPTROLLER** - **EXT-P53 – TRUE COPY OF THE ORDER NO.GA/C2/23346/99(385) DATED 25.8.2007 BY THE REGISTRAR** - **EXT-P54 – TRUE COPY OF THE ORDER NO.GA/C2/23346/99(523) DATED 25.8.2007 BY THE REGISTRAR** ## **EXT-P55 – TRUE COPY OF ORDER NO.GA/C2/10177/99 DATED 4.8.2006** **RESPONDENTS EXHIBITS: NIL // TRUE COPY // P.A TO JUDGE** **SB** ## **K. VINOD CHANDRAN, J.** ## **===================== O.P. No.10208 of 2002 - M** ## **====================== Dated this the 11[th] day of February, 2016** ## **J U D G M E N T** The petitioner, who is a retired employee was before this Court, even prior to the retirement ie., in the year 2002, claiming that his pay has been fixed in such a manner that he draws the very same pay as his junior. Though the petitioner initially claimed parity of pay against respondents 4 to 8, on hearing, since all the parties are now retired, the learned Counsel for the petitioner specifically pointed out the case of Dr.N. Rema Bhai, the 4[th] respondent herein. The 4[th] respondent is claimed to be a junior of the petitioner, having been appointed to the University on 30.03.1981, while the petitioner was appointed on 26.12.1978. The petitioner contends that the petitioner's case is covered by Ext.P50 judgment and he is entitled to step-up of pay to that drawn by 4[th] respondent . **2** O.P. No.10208 of 2002 - M 2. None appeared for the University, when the matter was called for hearing. The petitioner, the 4[th] respondent and the Government, were represented through Counsel. It is also to be noticed that the petitioner has chosen to file a reply dated 08.02.2016 to the counter affidavit of the University dated 27.06.2002; without a petition to accept the same or to condone the long delay occassioned. 3. Be that as it may, the petitioner's case has to be examined as against the 4[th] respondent. The petitioner was appointed as Assistant Professor in 26.12.1978. The 4[th] respondent was appointed as Assistant Professor on 06.04.1981. But however the 4[th] respondent had entered service in the Vellanikkara College of Agriculture, affiliated to the Kerala University. The Kerala Agricultural University (KAU) was formed on 22.04.1971. As per SRO 264/1972 the service of Instructor/Junior Assistant Professor was to be reckoned for up-gradation as Associate Professor. The 4[th] respondent was **3** O.P. No.10208 of 2002 - M hence granted up-gradation as Associate Professor w.e.f. 26.05.1986 by Ext.P4 dated 16.06.1986. It is to be noticed that the up-gradation as per Ext.P2 is considered only on application by the concerned faculty member and on an assessment of the performance of the faculty member on broad parameters laid down in Ext.P2. The petitioner does not have a case that the petitioner applied for such an up-gradation or had challenged the up-gradation of 4[th] respondent . 4. The petitioner then contends that he applied under Ext.P6 dated 29.10.1988. But at that point of time, admittedly the petitioner was under suspension w.e.f.07.04.1988 for involvement in a criminal case in which he was convicted by the trial Court, but later acquitted by this Court in appeal. The petitioner on acquittal was reinstated in service on 13.03.1991. The period of suspension was also treated as duty. So much is evident from Ext.P10 dated 20.11.1991. All this while 4[th] respondent continued as Associate Professor while the petitioner on **4** O.P. No.10208 of 2002 - M rejoining duty joined as Assistant Professor and continued in that post. 5. The University in its counter affidavit, rightly states that Exts.P2 and P6 are distinct and different. While Ext.P2 deals with up-gradation on application and by assessment, Ext.P6 is mere placement in the higher post which is time bound. The application for placement of the petitioner to the post of Associate Professor could not have been considered, since he was at that time suspended from service. Even in the application for such placement the petitioner raised no contention about his alleged supercession by 4[th] respondent . 6. As Ext.P2 the service for per qualifying up-gradation as Associate Professor is 12 years and the would have such service on petitioner completed only 26.12.1990. Only Assistant Professors with Phd. would be entitled for up-gradation on completion of 10 years service as per Ext.P2. For others the qualifying service is 12 years. The **5** O.P. No.10208 of 2002 - M petitioner acquired his Phd. only on 13.10.1995, long after. Incidentally it is to be noticed that 4[th] respondent obtained Phd. on 20.08.1989, even as per the reply affidavit filed by the petitioner. The stipulation for up-gradation on 10 years service, to Associate Professor even without Phd., came only be by Ext.P3 which was made effective retrospectively only from 13.12.1989. The petitioner was hence up-graded to the post of Associate Professor w.e.f 13.12.1989. 7. As per the counter affidavit the petitioner was inducted as Assistant Professor (Sr. scale) on Rs.3000-5000 w.e.f 01.01.1986 and as Assistant Professor (Selection Grade) on Rs.3700-5700 w.e.f. 26.12.1986 and designated as Associate Professor w.e.f. 13.10.1995. Later as part of rectification of anomalies in the implementation of UGC/ICAR package 1986, the petitioner has been given upgradation as Associate Professor w.e.f 13.12.1989 pursuant to amendment of statute and inducted into the scheme forgoing his earlier induction. In such **6** O.P. No.10208 of 2002 - M circumstance, the contention that the petitioner was not senior to the party respondents for reason of all of them being in different disciplines need not be looked into. Intra-discipline seniority being followed in the University as against the cadre seniority claimed by the petitioner; though urged in the counter affidavit and sought to be refuted by the petitioner, hence pales into insignificance. 8. Dr.N. Rema Bhai ( 4[th] respondent ), as is seen from the reply affidavit itself, was promoted on 26.05.1986, while the petitioner was promoted on 13.12.1989, as an Associate Professor. The petitioner's claim is that the pay of the 4[th] respondent in the post of Associate Professor was more than the pay of the petitioner and hence the petitioner's pay has to be fixed so as to make it in consonance with the pay drawn by his junior as per Rule 28A of Part I K.S.R. 9. The petitioner has relied on Ext.P50, which according to this Court is not on similar situation. Therein, an **7** O.P. No.10208 of 2002 - M admitted junior was drawing higher pay than the petitioner in the writ petition. A reading of Ext.P50 would indicate that the fixation sought under Rule 48A was by one Dr.Sosamma Cherian as against one Dr.K.G.Padmakumar. Both were brought under UGC on 01.01.1986. Dr.Sosamma Cherian was recruited as Junior Assistant Professor on 19.09.1980, while Dr. K.G.Padmakumar was so on 27.11.1980. Dr.Sosamma Cherian was appointed promoted as Assistant Professor on 24.11.1983 and up-graded as per the Career Advancement Programme, to the post of Associate Professor on 19.09.1993. Dr.K.G. Padmakumar was given such benefits respectively on 29.09.1984 and 21.11.1993. They were again promoted as Professors on 19.09.2001 and 13.12.2001. Both were inducted to the 1996 UGC Scheme on 01.01.2006. Hence Dr. Sosamma Cherian was admittedly the senior in all the cadres and the fixation as per Rule 28A was only proper. Herein no such parallel can be drawn. 10. The petitioner and the 4[th] respondent were **8** O.P. No.10208 of 2002 - M inducted into service on two different dates but Dr.N.Rema Bhai had former service as Junior Assistant Professor. The promotion of Dr. N. Rema Bhai as Associate Professor happened in 1986 before the promotion of the petitioner to the post of Associate Professor, which was w.e.f. 13.12.1989 by actually made much later. In such circumstance, it is only proper that the Associate Professor, who was promoted earlier, gets a higher pay in that scale. If the petitioner had a claim that the promotion granted to Dr.N. Remba Bhai was in supercession of his claim, then the petitioner ought to have agitated the case before this Court at the appropriate time ie., when the promotion was granted to the 4[th] respondent in the year 1986. The petitioner was also inducted into 1986 scheme as Associate Professor w.e.f. 13.12.1989 by Ext.P37 dated 20.09.2011. Both the orders were left unchallenged and the petitioner accepted it. 11. The above writ petition was filed claiming parity, which cannot be granted. The 4[th] respondent was granted **9** O.P. No.10208 of 2002 - M up-gradation as Associate Professor long before the petitioner, which was not challenged. The 4[th] respondent was also promoted as a Professor on 13.12.1989, while the petitioner was so promoted only by Ext.P36(a) dated 22.10.2011. The subsequent promotions of 4[th] respondent also were not challenged. The claim of the petitioner is that, now that all have retired; the petitioner be directed to be fixed in the higher pay of 4[th] respondent and the monetary benefits be directed to be disbursed. The petitioner cannot claim any parity with the 4[th] respondent , since the 4[th] respondent was promoted long prior to the petitioner as an Associate Professor. The petitioner contends that the promotion of the 4[th] respondent in 1986 is also challenged herein. It is to be noticed that the writ petition is filed in the year 2002, after 16 years of the promotion of the 4[th] respondent . 12. Admittedly, there is considerable delay in filing the above writ petition. Going by the decision of the Hon'ble **10** O.P. No.10208 of 2002 - M Supreme Court in **K.R.Mudgal v. R.P.Singh [(1986) 4 SCC 531]** , seniority which has stood the test of time and promotion effected thereby should not be disturbed after a long lapse of time. The Hon'ble Supreme Court declared, applying the sit back theory, that employees in an organisation should have some element of certainty in their employment and continuity in higher posts and they should be allowed to carry on their duties peacefully without accepted positions being disturbed after a long period of time. On the question of delay and laches, the Hon'ble Supreme Court also relied on a Constitution Bench decision in **Malcom Lawrence Cecil D'Souza v. Union of India [1976)1 SCC 599],** wherein the Supreme Court deprecated raking up of old matters, like seniority, after a long time, which would result in administrative complications and difficulties and also would adversely affect the smoothness and efficiency of the service. An admitted senior for long years cannot be disturbed on account of a litigation initiated long after such seniority has **11** O.P. No.10208 of 2002 - M been determined. Further merely on the sole ground that all parties to a litigation have retired, revision of pay cannot be directed since it would burden the public exchequer. This Court cannot shut its eyes to the prejudice caused to public interest, especially when there is established no legal right. The petitioner on facts cannot have any claim for parity with the 4[th] respondent 's pay. The writ petition hence would stand dismissed. No costs. **Sd/K. VINOD CHANDRAN, JUDGE** SB/11/02/2016 // true copy // P.A to Judge