Shaju Varghese v State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942** ## **WP(C).No.27677 OF 2020(H)** ## **PETITIONER :-** **SHAJU VARGHESE, AGED 52 YEARS S/O.CHACKO VARGHESE, PRINCIPAL IN CHARGE, ST. PETER'S COLLEGE, KOLENCHERY, ERNAKULAM DISTRICT, RESIDING AT VATHYAMPILLIL HOUSE, THRIKKALATHOOR P.O, MUVATTUPUZHA, ERNAKULAM DISTRICT.** **BY ADVS. SRI.GEORGE POONTHOTTAM (SR.) SMT.NISHA GEORGE SRI.A.L.NAVANEETH KRISHNAN** ## **RESPONDENTS :-** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 DIRECTOR OF COLLEGIATE EDUCATION, HOSPITAL ROAD, NEAR MCRV MEN'S HOSTEL 11, SHENOYS, ERNAKULAM - 682 011.** - **3 THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, CENTRAL ZONE, HOSPITAL ROAD, NEAR MCRV MEN'S HOSTEL 11, SHENOYS, ERNAKULAM – 682 011.** - **4 MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, ATHIRAMPUZHA P.O, KOTTAYAM - 686 560, REPRESENTED BY ITS REGISTRAR.** - **5 THE MANAGER, ST. PETER'S COLLEGE, KOLENCHERY, ERNAKULAM DISTRICT - 682 311** **BY SMT.NISHA BOSE, SR.GOVERNMENT PLEADER BY ADV. SRI.ASOK M.CHERIAN, SC, MG UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.27677 OF 2020(H) -: 2 :- ## **JUDGMENT** ## **Dated this the 12th day of March, 2021** This writ petition is filed seeking the following reliefs :- - “i. Issue a writ of mandamus directing the 4[th] respondent University to approve the revised promotion order of the petitioner submitted by the college along with Exhibits P11 and P13. - ii. Issue a writ declaring that the petitioner is entitled for promotion as Senior Grade Lecturer w.e.f. 02.01.2008 and as Selection Grade Lecturer w.e.f. 02.01.2013 in the light of Exhibits P6 & P7. - iii. Issue a writ declaring that the delay from the part of the University in approving the revised promotion order of the petitioner is arbitrary and unfair. - iv. Issue a writ declaring that the University cannot deny the revision of promotion of the petitioner reckoning the service period in the leave vacancy in view of Exhibit P7 approval order already issued by the University. - v. Issue a writ of mandamus directing respondent 1 to 3 to disburse the consequential benefits to the petitioner pursuant to approval of the revised promotion orders of the University. - vi. Issue a writ declaring that the petitioner is entitled for all service benefits including promotion reckoning the service period from 02.01.2002 to 02.06.2002.” 2. Heard the learned counsel for the petitioner and the learned Government Pleader as well as the learned Standing Counsel appearing for the respondent University. Though notice was taken WP(C).No.27677 OF 2020(H) -: 3 :- out to the 5[th] respondent, there is no appearance for the 5[th] respondent. 3. The learned counsel for the petitioner submits that the petitioner was appointed in a leave vacancy for the period from 2.1.2002 to 14.10.2003 by Ext.P1. It is submitted that the appointment was pursuant to a regular selection conducted by a selection committee including a Government nominee. Thereafter, when a regular vacancy arose on 1.4.2002, the petitioner was appointed by Ext.P2 to the said regular vacancy. By Ext.P4, the appointment in the regular vacancy was approved. Thereafter, pursuant to directions issued by this Court, the issue of approval in the leave vacancy for the period from 2.1.2002 to 2.6.2002 was also considered and the said period was also approved and monetary benefits were released to the petitioner. The petitioner thereupon preferred a representation before the 3[rd] respondent seeking counting of the period from 2.1.2002 to 2.6.2002 also for the purpose of grant of Senior scale and Selection grade. However, no orders have been passed thereon. It is submitted that communications were carried out between the University and the College and Ext.P13 clarification was also issued by the College stating that the grant of benefits to the petitioner, without reckoning the earlier period of approved service in a leave vacancy was due to an inadvertent omission. It is submitted WP(C).No.27677 OF 2020(H) -: 4 :- that in spite of all these communications, the petitioner's request before the 3[rd] respondent has not been examined and orders have not been rendered thereon. The learned counsel would also contend that the petitioner would lose the benefit of Ext.P14 order and Ext.P15 circular if the benefits are not granted to him and the petitioner submits the option on or before 31.3.2021. It is further contended by the learned counsel for the petitioner that Ext.P19 Government Order would make it abundantly clear that the petitioner who satisfies all the requirements of clause 7.1 thereof is eligible for counting the period of prior service put in by him in a leave vacancy for the grant of benefits including placement in the Senior scale and Selection grade. 4. A counter affidavit has been placed on record by the 3[rd] respondent. It is the specific case of the 3[rd] respondent that though the petitioner was appointed in a leave vacancy from 2.1.2002 to 14.10.2003 by Ext.P1, he was shifted to a retirement vacancy and the said appointment was approved from 3.6.2002 onwards. It is contended that the embargo in clause 7.7 of Ext.P19 Government Order would apply to the petitioner, since the petitioner's prior service is for a period of less than a year in a leave vacancy, that is, from 2.1.2002 to 2.6.2002. WP(C).No.27677 OF 2020(H) -: 5 :- 5. A reply affidavit has also been placed on record by the petitioner. 6. I have considered the contentions advanced. Clauses 7.1 ## to 7.7 of Ext.P19 Government Order specifically read as follows :- - “7.1 COUNTING OF PAST SERVICE - Previous service, without any break as a Lecturer or equivalent, in a University, college, national laboratory, or other scientific organisation, e.g. CSIR, ICAR, DRDO, UGC, ICSSR, ICHR and as a UGC Research Scientist, should be counted for placement of lecturer in Senior Scale/ Selection Grade provided that: - 7.2 The post was in an equivalent grade/scale of Pay as the post of Lecturer. - 7.3 The qualifications for the post were not lower than the qualifications prescribed by the UGC for the post of Lecturer. - 7.4 The Candidates who apply for direct recruitment should apply through proper channel; - 7.5 The concerned Lecturers possessed the minimum qualifications prescribed by the UGC for appointment as Lecturers; - 7.6 The post was filled in accordance with the prescribed selection procedure as laid down by the University/State Government/Central Government/Institution's regulations. - 7.7 The appointment was not ad-hoc or in a leave vacancy of less than one year duration. Ad-hoc service of more than one year duration can be counted provided - - (a) the ad hoc service was of more than one year duration; - (b) the incumbent was appointed on the recommendation of duly constituted Selection WP(C).No.27677 OF 2020(H) ## -: 6 :- Committee; and (c) the incumbent was selected to the permanent post in continuation to the ad hoc service, without any break.” The embargo contained in clause 7.7 is, therefore, specifically that the appointment should not have been ad-hoc appointment or in a leave vacancy of less than one year duration. 7. It is clear from Ext.P1 that the petitioner was initially appointed in a leave vacancy from 2.1.2002 to 14.10.2003. The respondents have no case that the petitioner's appointment was not after a due process of selection. During the currency of the first appointment, a retirement vacancy arose in the college. The petitioner was shifted to the said vacancy. The said appointment was approved by the University with effect from 3.6.2002. Later, the period when the petitioner had worked in the leave vacancy from 2.1.2002 to 2.6.2002 was also approved by the University and the monetary benefits were released to the petitioner. In the above view of the matter, since the specific embargo in clause 7.7 is that the appointment should not be on an ad-hoc basis or in a leave vacancy having a duration of less than 12 months, the petitioner who had been appointed by Ext.P1 in a leave vacancy having a duration of 19 months after undergoing a regular selection would not be hit by the embargo in clause 7.7 of Ext.P19 Government Order. It appears from WP(C).No.27677 OF 2020(H) -: 7 :- the materials on record that the only reason why the request of the petitioner as raised in Ext.P10 is kept pending is because the University has sought for clarification in this regard from the Government. 8. Having considered the contentions advanced, I am of the opinion that the objection raised that the petitioner's initial appointment in the leave vacancy was for a period having a duration of less than a year cannot stand in the light of the specific language of clause 7.7 of Ext.P19. In the above view of the matter, there will be a direction to the respondents to consider the period of approved service in the leave vacancy from 2.1.2002 to 2.6.2002 also as qualifying service for the grant of grade promotions to the petitioner. The necessary shall be done by the respondents within a period of two months from the date of receipt of a copy of this judgment. The petitioner shall also be permitted to submit options in terms of Ext.P14 Government Order and Ext.P15 circular on the strength of the directions issued in this writ petition. This writ petition is ordered accordingly. ## **Sd/ANU SIVARAMAN JUDGE** Jvt/17.3.2021 WP(C).No.27677 OF 2020(H) -: 8 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO. S.12/2002 (1) DATED 02.01.2002 ISSUED BY THE SECRETARY OF ST. PETERS COLLEGE TRUST.** - **EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER NO. S12/2001 DATED 01.04.2002 ISSUED BY THE SECRETARY OF ST. PETERS COLLEGE TRUST.** - **EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 26.03.2003 IN O.P. NO. 21817 OF 2002 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P4 TRUE COPY OF THE ORDER NO. AC. B.IV-3-1497/93 VOL.II DATED 18.03.2004 PASSED BY MAHATMA GANDHI UNIVERSITY.** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 03.02.2005 IN W.P.C NO. 3966 OF 2005.** - **EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS OF THE MAHATMA GANDHI UNIVERSITY DATED 04.05.2005.** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO. AC.BIV-3-1497/93. VOL-II DATED 06.05.2006 PASSED BY THE MAHATMA GANDHI UNIVERSITY.** - **EXHIBIT P8 TRUE COPY OF THE LETTER NO. ES.HTS/355/06 DATED 14.07.2006 ISSUED BY THE PRINCIPAL, ST. PETERS COLLEGE.** - **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 18.11.2008 IN W.P.C NO. 1986 OF 2008 PASSED BY THIS HON'BLE COURT.** - **EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 17.02.2009 ALONG WITH THE COVERING LETTER ISSUED BY THE PRINCIPAL DATED 25.02.2009.** - **EXHIBIT P11 TRUE COPY OF THE LETTER NO. ESTT./735/2020 DATED 27.01.2020 ALONG WITH ITS ANNEXURES.** - **EXHIBIT P12 TRUE COPY OF THE LETTER NO. ACB/V/3/8530/2018 DATED 19.05.2020 ISSUED BY THE MAHATMA GANDHI UNIVERSITY.** - **EXHIBIT P13 TRUE COPY OF THE LETTER NO. ESTT./735/2020 DATED 02.06.2020 DATED 02.06.2020 WITHOUT ANNEXURES.** WP(C).No.27677 OF 2020(H) -: 9 :- - **EXHIBIT P14 TRUE COPY OF THE G.O(RT) NO. 676/2020/DHE DATED 27.05.2020.** - **EXHIBIT P15 TRUE COPY OF THE CIRCULAR NO.A1/9243/2019/DCEDDEKM DATED 24.06.2020.** - **EXHIBIT P16 TRUE COPY OF THE LETTER NO. ESTT./735/3/2020 DATED 15.06.2020 WITHOUT ITS ANNEUXRES.** - **EXHIBIT P17 TRUE COPY OF THE LETTER NO. ESTT. /735/4/2020 DATED 19.10.2020 ISSUED BY THE SECRETARY ST. PETER'S COLLEGE TRUST.** - **EXHIBIT P17 A TRUE COPY OF THE LETTER NO. ESTT. /735/5/2020 DATED 02.11.2020 ISSUED BY THE SECRETARY ST. PETERS COLLEGE TRUST.** - **EXHIBIT P18 TRUE COPY OF THE LETTER NO. 60128/AC B-5/2020/AC B5 DATED 07.11.2020 ISSUED BY THE MAHATMA GANDHI UNIVERSITY.** - **EXHIBIT P19 TRUE COPY OF THE RELEVANT PORTIONS OF THE GOVERNMENT ORDER BEARING G.O.(P) NO.171/99/H.EDN DATED 21/12/1999.** //TRUE COPY// P.A. TO JUDGE