Sobha P.K. v. State of Kerala, University of Kerala, Sree Ayyappa College Eramallikkara, and Sri Anil Kumar K.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938** **WP(C).No. 17365 of 2014 (U) ---------------------------PETITIONER(S): ------------SOBHA P.K ASSOCIATE PROFESSOR, DEPARTMENT OF COMPUTER SCIENCE, SREEAYYAPPA COLLEGE, ERAMALLIKKARA, CHENGANNUR, ALAPPUZHA DISTRICT RESIDING AT KALEEKKAVADAKKATHIL HOUSE, PORUVAZHI P.O., KOLLAM DISTRICT - 690 520** **BY ADVS.SRI.P.CHANDRASEKHAR SRI.SOORAJ T.ELENJICKAL SRI.P.K.ABDU RAHEEM** **RESPONDENT(S):** **-------------1. THE STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, GOVERNMENT OF KERALA, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM - 695 001** **2. THE UNIVERSITY OF KERALA** **THIRUVANANTHAPURAM REPRESENTED BY ITS REGISTRAR - 695 001** **3. THE PRINCIPAL** **SREE AYYAPPA COLLEGE, ERAMALLIKKARA P.O., CHENGABNNUR, ALAPPUZHA DISTRICT - 689 109** **4. SRI.ANILKUMAR K.S.,** **ASSOCIATE PROFESSOR, DEPARTMENT OF COMPUTER SCIENCE, SREE AYYAPPA COLLEGE, ERAMALLIKKARA P.O., CHENGANNUR, ALAPPUZHA DISTRICT- 689 109** **R1 BY GOVERNMENT PLEADER SRI.BIJOY CHANDRAN BY ADV. SRI.A.N.RAJAN BABU(B/O) R2 BY ADV. SRI.BECHU KURIAN THOMAS, SC, BY ADV. SRI.THOMAS ABRAHAM, SC, R3 BY ADV. SRI.S.MUHAMMED HANEEFF R4 BY ADVS. SMT.ASHA CHERIAN SMT.SARAMMA CHERIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-11-2016,THE COURT ON 25/11/2016 DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 17365 of 2014 (U)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** - **P1: - TRUE COPY OF ORDER NO. ACAD A IV/2812/95 DT. 21ST DECEMBER, 1996 OF THE 2ND RESPONDENT** - **P2: - TRUE COPY OF ORDER G.O(RT) NO. 1062/2011/H,EDN DT. 15.7.11** - **P3: - TRUE COPY OF ORDER NO. AC. FIII/2/44453/11 DT. 13.4.12 OF THE 2ND RESPONDENT** - **P4: - TRUE COPY OF STATEMENT OF RE-FIXATION OF PAY DUE TO THE 4TH RESPONDENT** - **P5: - TRUE COPY OF G.O(MS) NO. 150/2014/H.EDN DT. 27.3.14 P5(A):LETTER DT. 23.3.2001 OF THE 2ND RESPONDENT P5(B):TRUE COPY OF THE STATEMENT OF ACCOUNT PREPARED AND SUBMITTED BY THE PETITIONER AS HOD TO THE 3RD RESPONDENT** - **P6: - TRUE COPY OF LETTER DT. 07.1.14 OF THE 3RD RESPONDENT TO ADVOCATE SANTHOSHKUMAR** - **P7: - TRUE COPY OF ORDER NO. SAC/ADMIN/IA DT. 30.6.14 OF THE 3RD RESPONDENT** - **P8:COPY OF G.O.(MS) NO. 148/2015/HE DT 28/4/2015. RESPONDENT(S)' EXHIBITS : -----------------------** - **EXT.R4(a): COPY OF THE CERTIFICATE NO.R.F.27/B1/98 DT O1/O4/1998 OF THE R3.** - **EXT.R4(b): COPY OF THE CERTIFICATE DT 1/6/2001 OF THE PROFESSOR AND HEAD OF THE DEPARTMENT OF FUTURE STUDIES OF UNIVERSITY OF KERALA.** - **EXT.R4(c): COPY OF THE COMMUNICATION DT 9/5/2008 OF REGISTRAR, UNIVERSITY OF KERALA, TO THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM.** - **EXT.R4(d): COPY OF THE JUDGMENT DT 7/2/2011 IN WPC 5450/2006 OF THE HONOURABLE COURT OF KERALA.** - **EXT.R4(e): COPY OF THE CIRCULAR NO. 72/05/FIN DT 30/12/2005 OF GOVERNMENT OF KERALA.** - **EXT.R4(f): COPY OF THE ORDER NO. AC.AIV/3/4.10.C/2014 DT 17/7/2014 OF THE UNIVERSITY OF KERALA.** ## **WP(C).No. 17365 of 2014 (U)** **EXT.R4(g): COPY OF THE ELIGIBILITY CERTIFICATE DT 17/6/2014 ISSUED BY THE UNIVERSITY OF KERALA.** **EXT.R4(h): COPY RELEVANT PAGES OF THE NORMS AND PROCEDURE FOR SELECTION OF TEACHERS OR APPOINTMENT IN PRIVATE AFFILIATED COLLEGES COMING UNDER THE UNIVERSITY OF KERALA.** **EXT.R4(i): COY OF RELEVANT PAGES OF UGC REGULATION 2010.** - **EXT.R4(j): COPY OF RELEVANT PAGES OF CLAUSE 3 OF CHAPTER XIII OF KERALA UNIVERSITY FIRST ORDINANCE 1978.** - **EXT.R3(a): COPY OF THE G.O.(RT) NO. 1062/2011/H.EDN DT 15/7/2011.** - **EXT.R3(b): COPY OF THE COMMUNICATION NO.AC.F.III/1/823779/08 DT 9/5/2008.** - **EXT.R3(c): COPY OF THE ORDER NO. AC AIV/3/4 10.5.C/2014 DT 17/7/2014 OF THE R2.** **//TRUE COPY//** **P.A. TO JUDGE** **bp** ## **ANU SIVARAMAN, J.** = = = = = = = = = = = = = = = = = = = = = = = = = = **W.P.(C).No.17365 of 2014** = = = = = = = = == = = = = = = = = = = = = = = = = Dated this the 25[th] day of November, 2016 ## JUDGMENT - 1.Petitioner challenges Exhibits P2, P3, P4 and P7 orders in so far as it relates to the 4[th] respondent, and seeks directions to the 3[rd] respondent to appoint the petitioner as Head of the Department of Computer Science in the Sree Ayyappa College, Eramallikkara. - 2.The petitioner and the 4[th] respondent were appointed as lecturers in the Sree Ayyappa College, Eramallikkara on 01.06.1998. The petitioner, who was ranked No.1 in the list published, after due selection procedure, was placed above the 4[th] respondent and other teachers who ranked lower in the said list. The 4[th] respondent availed leave without allowance for acquiring M.Tech Course from 01.06.2001 to 02.02.2002. Leave was granted under Rule 88 Part I KSR and he acquired M.Tech degree. Therefore, the 4[th] respondent was placed in the Senior Scale of lecturer w.e.f. 03.02.2004 and in the selection grade on 03.2.2009. The petitioner was placed in the W.P.(C).No.17365/14 2 Senior Scale on 01.06.2004 and in the Selection Grade on 01.06.2009. The petitioner claims that the duration of M.Tech course undergone by 4[th] respondent was 1½ years, and therefore he was entitled to be placed in the Selection Grade only 1½ years later than the petitioner. On implementation of the UGC Schemes, teachers who put in three years of service as Selection Grade Lecturer were entitled to be re-designated as Associate Professor. It is contended by the learned counsel for the petitioner that Exhibit P5 order provided for the nomination of the senior most Professor/Associate Professor as Head of the Department. It is contended that the petitioner was functioning as the Head of the Department of Computer Science in the college, though no order appointing her as such is produced. However, by Exhibit P7, it is contended that the 3[rd] respondent had appointed the 4[th] respondent as Head of the Department of Computer Science. This order is under challenge. - 3.Heard the learned counsel for the petitioner, the learned Government Pleader appearing for the 1[st] respondent, the W.P.(C).No.17365/14 3 learned counsel appearing for the 2[nd] respondent and the learned counsel appearing for respondents 3 and 4. 4. It is contended by the learned counsel for the petitioner that the petitioner had entered service on 01.06.2009 and was placed as senior to the 4[th] respondent, having been selected and placed in the first rank. The 4[th] respondent, who was ranked below her, had also availed leave without allowance. It is stated that the 4[th] respondent, being junior to the petitioner, can have no claim for appointment as Head of the Department in preference to the petitioner. 5. The learned Government Pleader has filed a counter affidavit stating that the 4[th] respondent had approached this Court by filing W.P.(C).No.5450/2006 challenging an order of the Government declining to treat the period of leave as deputation. This Court had set aside the order of the Government and directed the reconsideration of his request in the light of Circular No.72/2005/Fin. dated 30.12.2015. Accordingly, his claim was reconsidered and the period was counted for W.P.(C).No.17365/14 4 seniority/promotion and grant of Half Pay Leave. Consequently, it is contended that the 4[th] respondent, who had acquired M.Tech qualification, became eligible for placement in the Senior Scale from 01.06.2003 and Selection Grade from 01.06.2008. He was re-designated as Associate Professor on 01.06.2011. Therefore, being the senior most Associate Professor, the 4[th] respondent was eligible for posting as Head of the Department, it is contended. 6. The 2[nd] respondent University has also filed a counter affidavit supporting the claim of the 4[th] respondent and further contended that after the 1996 UGC Regulation, appointment to the post of the Head of Department does not require approval from the University. It is stated that Exhibit P3 approval of revision of date of placement in Senior Scale as Selection Grade is based on Exhibit P2 order issued by the Government, and is perfectly legal and valid. By Exhibit P2 order of the Government dated 15.07.2011, it is stated that the period of leave granted under Rule 88, Part I KSR by the 4[th] respondent will be reckoned for seniority/promotion, and accumulation of half pay leave as W.P.(C).No.17365/14 5 permitted by Government Circulars. 7. The learned counsel appearing for the 3[rd] respondent would contend that though the petitioner was senior to the 4[th] respondent by virtue of being ranked first in the selection to the post of Lecturer, the 4[th] respondent acquired M.Tech in 2002 and became entitled for placement in the Senior Scale in five years, whereas the petitioner who did not have the said qualification of M.Tech at the relevant time, would be placed in the Senior Scale only w.e.f. 01.06.2004, the date on which she completed six years of service as Lecturer. The 4[th] respondent was initially given placement in the Senior Scale from 03.02.2004, deducting the period of study leave availed by her, and in the Selection grade from 3.2.2009. Since by Exhibit P2, the Government ordered that period of study leave would be reckoned for seniority/promotion, the 4[th] respondent was placed in the senior scale on 01.06.2003 and in Selection Grade from 01.06.2009. Consequently, he was granted re-designation as Associate Professor from 01.06.2011 and since he was the senior most Associate Professor, he was nominated as the Head of the W.P.(C).No.17365/14 6 Department. 8. The learned counsel appearing for the 4[th] respondent would additionally contend that even before Exhibit P2 order of the Government directing that the period of study leave could be reckoned for seniority, the 4[th] respondent, who had acquired M.Tech qualification, was posted in the Senior Scale on 03.02.2004 and Selection Grade on 03.02.2009, excluding the period of leave. Even so, he would be senior to the petitioner, since the petitioner could be placed in the respective scales only later, because of her late acquisition of qualification. It is further contended that the re-designation of Associate Professor being dependent on the completion of 3 years as Selection Grade Lecturer, the said landmark was also crossed by the 4[th] respondent before the petitioner and the petitioner would have no claims as against the 4[th] respondent, who is an admitted senior in all categories. The learned counsel relies on Exhibit R4 (D) judgment as well as as well as Exhibit R4(E) series of orders to support Exhibit P2 Government Order. The judgment of a Division Bench of this Court reported in **Janardhanan Pillai v.** W.P.(C).No.17365/14 7 **Travancore Devaswom Board** [2005(4) KLT 522] is also relied upon to contend that an employee who was granted promotion as Selection Grade Lecturer earlier on account of his acquisition of higher qualification is entitled for promotion as Principal, ahead of persons who are senior in overall service since earlier acquisition of additional qualification counting for earlier promotion as Selection Grade Lecturer can certainly count for further promotion as Principal as well. 9. I have considered the rival contentions advanced as well as the pleadings and the materials on record - 10.It is clear from the documents produced that the leave availed by the 4[th] respondent from 01.06.2001 to 02.02.2002 was sanctioned under Rule 88 Part I KSR. It is also not in dispute that having acquired the qualification of M.Tech, the 4[th] respondent was placed in the Senior Scale and Selection Grade ahead of the petitioner. Re-designation as Associate Professor, being admittedly dependent on the date of placement in the Selection Grade, the said re-designation was also reached by the W.P.(C).No.17365/14 8 4[th] respondent ahead of the petitioner. All these placements were acquired by the 4[th] respondent even without reference to the revision of dates given by virtue of Exhibits P2 and P3 orders, prior to such acquisition by the petitioner. In view of the fact that the senior most Associate Professor is to be designated as the Head of the Department, there was no illegality in the order of the 3[rd] respondent nominating the 4[th] respondent as the Head of the Department. The challenge against Exhibit P7 therefore fails. In the light of Exhibit R4(d) judgment, I am also not persuaded to hold that Exhibits P2 and P3 are vitiated by any illegality or perversity. The challenge against said orders are also found to be not sustainable. In the result, the writ petition fails and is therefore dismissed. sd/- **Anu Sivaraman, Judge** sj