State of Kerala and Director, Directorate of Technical Education v. Kumari U.M.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** **OP(KAT).No.541 OF 2019** **AGAINST THE ORDER IN OA 174/2019 DATED 20-06-2019 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS:** **1 STATE REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER SECONDARY EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-PIN-695001. 2 THE DIRECTOR DIRECTORATE OF TECHNICAL EDUCATION, FORT P O, THIRUVANANTHAPURAM, PIN-695023.** **BY GOVERNMENT PLEADER** ## **RESPONDENT:** ## **KUMARI U.M** **W/O. JYOTHIKUMAR, AGED 54 YEARS, REVATHI HOUSE, MEENANGADI P O, WAYANAD-673591, ASSISTANT INSTRUCTOR (HG) GOVERNMENT COMMERCIAL INSTITUTE, MEENANGADI, WAYANAD, KERALA-673591.** **R1 BY ADV. SHRI.K.NIRMALAN R1 BY ADV. SRI.V.JAYADHAR** ## **OTHER PRESENT:** ## **SRI. T. RAJASEKHARAN NAIR- SR. G.P.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 19-08-2020, THE COURT ON 25-08-2020 DELIVERED THE FOLLOWING:** O.P.(KAT)No.541/2019 2 ## **JUDGMENT** ## **Dated this the 25th day of August 2020** ## **Gopinath, J.** This Original Petition (KAT) is filed by the State of Kerala & one of its officers challenging the order dated 20.06.2019 in O.A.No.174/2019. The respondent herein is the applicant before the Tribunal. 2. The short question that arises for our consideration is whether the B.Com Degree acquired by the respondent through distance education from the Annamalai University is sufficient qualification for being promoted to the post of Instructor in the Government Commercial Institute. The qualifications, method of recruitment etc., to the post of Lecturer (later re-designated as Instructor) were fixed in terms of G.O.(MS)No.783 dated 11.10.1960. In terms of that Government Order, the qualifications prescribed for the post of Lecturer was the following:- _“A. (i) B.Com Degree of a recognised University. (ii) Typewriting (Higher) - K.G.T.E or M.G.T.E (iii) Shorthand (Lower) - K.G.T.E or M.G.T.E. B. (i) Graduation (ii) Diploma in Commerce (K.G.T.E or M.G.T.E.”_ O.P.(KAT)No.541/2019 3 The provisions contained in the above Government Order have been replaced w.e.f 12.10.2002 by statutory Rules framed by the Government of Kerala under Section 2 of the Kerala Public Services Act. These Rules are called _'Kerala Technical Education Subordinate Service Rules, 2012'_ . These Rules provide that for the post of Instructor in Commerce, the qualifications shall be the following:- _“(1) 1[st] Class Bachelor's Degree in Commerce from any recognized University after undergoing regular institutional course of study._ _(2) Diploma in Commercial Practice awarded/recognized by Government of Kerala, after three years of regular Institutional course of study.”_ Thus from 12.10.2012 onwards, it is clear that the Bachelor's Degree in Commerce must not only be from a recognized University but also be one obtained after undergoing a regular institutional course of study. The Tribunal noticed these facts and, after referring to the document produced as Annexure-A18, which contains the details of recognition accorded to Universities, Institutions etc. by the University Grants Commission, found that the B.Com Degree awarded by the Annamalai University was from a recognized University satisfying the requirements of the Government Order dated 11.10.1960. Since the claim of the respondent was to vacancies which arose before 12.10.2012, the Tribunal found that the respondent was entitled to be considered for promotion as Instructor to a vacancy which arose before that date. O.P.(KAT)No.541/2019 4 3. We have heard Sri. T. Rajasekharan Nair, the learned Senior Government Pleader appearing for the petitioners and Sri. V. Jayadhar, the learned counsel appearing for the respondent. 4. The learned Senior Government Pleader would vehemently contend that the term ‘recognized University’ means a University which is recognized by any of the Universities in Kerala. He would contend that by Annexure-R2(a) document placed before the Tribunal, the University of Kerala had informed the Director of Technical Education that the B.Com Degree awarded by the Annamalai University is not a recognized qualification. He would, therefore, contend that even in terms of the Government Orders fixing qualification and before the introduction of special Rules on 12.10.2012, the requirement was for a B.Com Degree obtained from a recognized University, though it was not stipulated that it must be acquired after a regular course of study. The learned Senior Government Pleader would further contend, placing reliance on the judgment of the Supreme Court in _**State of Haryana and others**_ v. _**O. P.Gupta and others**_ [(1996) 7 SCC 533] that even if promotions were to be granted to the respondent, she would not be entitled to any arrears of pay during the period that she had not worked. In support of the same proposition, he would also place reliance on the judgments in _**A.K. Soumini**_ v. _**State Bank of**_ O.P.(KAT)No.541/2019 5 _**Travancore and another**_ [AIR 2003 SC 3137] and _**Union of India**_ v. _**Jha**_ [2008 (3) KLT Suppl.1644(SC)]. 5. On the other hand, the learned counsel for the respondent would contend with reference to Annexure-A3 notification and the Government Order dated 11.10.1960 that the qualification is prescribed in two parts namely ‘A’ & ‘B’ and that these are alternate qualifications. According to him even if the respondent was not qualified in terms of the qualifications prescribed in 'A' of that notification/Government Order, she should be treated as being qualified under 'B' of that notification. He would also refer to documents which would show that persons similarly situated having similar qualifications acquired through distance education had been granted promotion. He would specifically refer to the case of one Sarojini.K and one Mayamol. He would refer to the provisions of Rules 23 (c) & 23 (d) of Part I KSR and the judgment of the Division Bench of this Court in _**Sucheendran M.K.**_ v. _**State of Kerala**_ [2005 (3)KLT 499] to contend that the Government had wrongly denied consequential benefits on account of promotion granted with effect from 1.6.2012 on notional basis (through Ext.P5 order issued in compliance with the directions of the Tribunal). 6. We have considered the submissions of either side. On a perusal of the Government Order, G.O.(MS)No.783 dated 11.10.1960, O.P.(KAT)No.541/2019 6 we find that the qualification prescribed was B.Com Degree from a recognized University. As held by the Tribunal, there is nothing in that Government Order to suggest that the words 'recognized University' meant, a University recognized by the Universities in Kerala. Therefore, nothing turns on the fact that the University of Kerala had informed the Director of Technical Education that B.Com Degree obtained through distance education from Annamalai University is not recognized by the University of Kerala. The stipulations in the Government Order referred to above have been replaced by statutory Rules with effect from 12.10.2012. Those Rules clearly stipulate that for the post of Instructor, B.Com Degree must be one obtained from a recognized University after undergoing a regular institutional course of study. Since these Rules were in replacement of existing stipulation contained in the Government Order, we feel that the stipulation that the B.Com Degree must be one obtained from a recognized University after undergoing regular institutional course of study is only prospective and cannot be applied in respect of posts or vacancies to be filled up under the stipulations contained in the Government Order, G.O.(MS)No.783 dated 11.10.1960. We, therefore, feel that the Tribunal was right in holding that the respondent had necessary qualifications for being considered against the vacancy of Instructor which arose prior to the date on which the Statutory Rules O.P.(KAT)No.541/2019 7 came into force. 7. We notice that the Director of Technical Education has already implemented the order of the Kerala Administrative Tribunal by issuing Ext.P5 order dated 20.8.2019 through which the respondent has been promoted as Instructor, notionally w.e.f 01-062012. Therefore the only question is whether the respondent is entitled to consequential benefits as directed by the Tribunal. The decisions referred to by the learned Government Pleader establish that in the case of notional promotion and in the situation where the person concerned has not rendered service or worked in the promoted post, he or she is not entitled to benefits of pay and allowances from the date of the notional promotion. The decision of the Division Bench of this Court in _**Sucheendran's case**_ (supra), which has been referred to by the learned counsel for the respondent is with reference to the provisions of Rule 23(c) of Part I KSR before its deletion w.e.f 01-03-2007 by G.O (P) 83/2007/Fin. dated 01-032007. Thereafter Rule 23(c) was re-introduced through G.O (P) 629/2010/Fin. dated 25-11-2010 and on such re-introduction, it reads as under:- _“In the case of notional promotion back arrears of pay and allowances are not admissible”_ The aforesaid amendment to Rule 23 on 25-11-2010 also introduced a new Rule as Rule 23(d) of Part I of KSR w.e.f 01-03-2007 which reads O.P.(KAT)No.541/2019 8 ## as follows:- _“Promotions which do not involve change of duties shall have effect from the date of occurrence of vacancy, or the date of acquiring eligibility for promotions, whichever is later, but monetary benefit shall be admissible only for a maximum period of one year prior to the date of order of promotion.”_ At the time when _**Sucheendran's case**_ (supra) was decided Rule 23(c) read as follows:- _Promotions which do not involve change of duties shall have effect from the date of vacancy which occasions the promotion”_ It is therefore clear that the decision in _**Sucheendran's case**_ (supra) cannot come to the aid of the respondent. It is also the specific case of the learned Sr. Government Pleader that the post of Instructor involves a change of duties and therefore that at any rate even Rule 23(d) has no application to the case of the respondent. We are of the opinion that the argument raised by the learned Senior Government Pleader is well-founded. There is yet another reason as to why we would hold that the respondent was not entitled to any benefit on account of the notional promotion granted to her with effect from 1.6.2012. Though the claim of the respondent was to a vacancy which had arisen prior to 12.10.2012, the Original Application is seen filed before the Kerala Administrative Tribunal only in January 2019. The Tribunal had decided the matter by order dated 20.6.2019 and the respondent was granted promotion through O.P.(KAT)No.541/2019 9 Ext.P5 on 20.8.2019. In such circumstances, we are inclined to set aside the order of the Tribunal to the extent it directs grant of promotion with consequential benefits. We, therefore, allow this O.P (KAT) in part by setting aside Ext.P4 order of the Kerala Administrative Tribunal to the extent it directs that the respondent shall, on promotion, be entitled to all consequential benefits. We hold that the respondent will be entitled to the benefits of promotion only with effect from the date of Ext.P5 order, i.e., 20.8.2019 and not with effect from an earlier date. The O.P (KAT) will stand disposed of on the aforesaid terms. In the facts and circumstances of the case, we make no order as to costs. sd/- **A.M.SHAFFIQUE JUDGE** sd/- **GOPINATH P. JUDGE** **acd** O.P.(KAT)No.541/2019 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A PHOTOCOPY OF THE O.A ALONG WITH ANNEXURE.** **EXHIBIT P1(A1) TRUE COPY OF THE B.COM DEGREE CERTIFICATE OF THE APPLICANT REG.NO.009D11080P00612 OF ANNAMALAI UNIVERSITY. EXHIBIT P1(A2) TRUE COPY OF THE M.COM DEGREE CERTIFICATE OF THE APPLICANT WITH REG.NO.023D15080P00675 OF ANNAMALAI UNIVERSITY.** **EXHIBIT P1(A3) TRUE COPY OF THE CIRCULAR NO.EB1/25665/2008 DATE D0.11.2012 OF THE 2ND RESPONDENT. EXHIBIT P1(A4) TRUE COPY OF PROFORMA APPLICATION DATED 16.11.2012 OR THE POST OF INSTRUCTOR GCI BY THE APPLICANT. EXHIBIT P1(A5) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT DATED 14.05.2013. EXHIBIT P1(A6) TRUE COPY OF THE ORDER NO.GCIQ/102/2011 DATED 29.07.2011 OF THE SUPERINTENDENT GOVERNMENT COMMERCIAL INSTITUTE, KOYILANDY.** - **EXHIBIT P1(A7) TRUE COPY OF THE LETTER NO. EB1/27012/12/DTE DATED 11.06.2013 OF THE 2ND RESPONDENT.** - **EXHIBIT P1(A8) TRUE COPY OF THE LETTER F.NOUGC/DEB/2013 DATED 14.10.2013 BY THE UGC ADDRESSED TO ALL INDIAN UNIVERSITIES.** **EXHIBIT P1(A9) TRUE COPY OF THE PUBLIC NOTICE F NO.19/2018 (DEB-1) OF UGC DATED 23.1.2018 OF THE UGC. EXHIBIT P1(A10) TRUE COPY OF THE GAZETTE NOTIFICATION DATED 15.11.2014 FOR THE POST OF INSTRUCTORS IN GOVERNMENT COMMERCIAL INSTITUTE OF CATEGORY NO.419/2014.** O.P.(KAT)No.541/2019 11 **EXHIBIT P1(A11) TRUE COPY OF THE CIRCULAR NO. EG3/47456/17/DTE DATED 03.01.2018 OF THE 2ND RESPONDENT. EXHIBIT P1(A12) TRUE COPY OF THE PROFORMA APPLICATION SUBMITTED BY THE APPLICANT TO THE 2ND RESPONDENT DATED 10.01.2018.** - **EXHIBIT P1(A13) TRUE COPY OF THE LETTER NO.EG3/47456/17/DTE DATED 08.03.2018 OF THE 2ND RESPONDENT ADDRESSED TO SUPERINTENDENT GOVERNMENT COMMERCIAL INSTITUTE, MEENANGADI.** **EXHIBIT P1(A14) TRUE COPY OF THE REPRESENTATION DATED 22.03.2018 OF THE APPLICANT ADDRESSED TOT HE 2ND RESPONDENT. EXHIBIT P1(A15) TRUE COPY OF THE GAZETTE NOTIFICATION DATED 12.10.2012 AS PER SRO NO.728/2012. EXHIBIT P1(A16) TRUE COPY OF THE REPRESENTATION DATED 11.06.2012 THE APPLICANT ADDRESSED TO THE 2ND RESPONDENT. EXHIBIT P1(A17) TRUE COPY OF THE LETTER NO. EB1/27012/12/DTE DATED 06.09.2013 OF THE 2ND RESPONDENT. EXHIBIT P1 TRUE COPY OF THE M.A(EKM) NO.1268/2019. EXHIBIT P1(A18) TRUE COPY OF RELEVANT PAGES OF UNIVERSITY GRANT COMMISSION RECOGNITION DETAILS, (INSTITUTIONAL RECOGNITION AND PROGRAMME WISE RECOGNITION) SHOWING B.COM DEGREE OF ANNAMALAI UNIVERSITY BY DISTANT EDUCATION MODE.** **EXHIBIT P3 TRUE COPY OF REPLY STATEMENT FILED BY THE 2ND RESPONDENT. EXHIBIT P3 R2(A) TRUE COPY OF LETTER NO. AC.C/58732/2012 DATED 26.12.2012. EXHIBIT P4 A TRUE PHOTOCOPY OF THE FINAL ORDER DATED 20.06.2019 IN OA 174/2019. EXHIBIT P5 A TRUE PHOTOCOPY OF THE ORDER EB1/30423/19/D.T.E DATED 20.08.2019.**