State of Kerala (represented by the Secretary to Government, Higher Education, Department) v Mathew Jacob, Lecturer (Selection Grade) in Physical Education, M.A. College, Kothamangalam; Mahatma Gandhi University; M.A. College, Kothamangalam; Mar Athanasius College, Kothamangalam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **MONDAY, THE 17TH DAY OF FEBRUARY 2014/28TH MAGHA, 1935** ## **WP(C).No. 23940 of 2010 (N)** ## **----------------------------** ## **PETITIONER(S):** - **--------------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION, DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM.** ## **BY ADV. SRI.VIJU THOMAS, GOVERNMENT PLEADER** ## **RESPONDENT(S):** - **----------------------------** **1. MATHEW JACOB, LECTURER (SELECTION GRADE) IN PHYSICAL EDUCATION, M.A.COLLEGE KOTHAMANGALAM, PIN-686 691.** **2. MAHATHMA GANDHI UNIVERSITY REP.BY ITS REGISTRAR, ETTUMANOOR, KOTTAYAM PIN-686 560.** - ***3. M.A.COLLEGE, KOTHAMANGALAM** - **REP.BY ITS MANAGER, PIN-686 691.** - **MAR ATHANASIOUS COLLEGE, REPRESENTED BY ITS MANAGER, KOTHAMANGALAM, KERALA-686691.** **ADDRESS OF R3 CORRECTED AS PER ORDER DATED 05.01.2011 IN IA.NO.10207/2011.** **BY ADV. SRI.K.K.M.SHERIF BY ADV. SRI.LAL K.JOSEPH BY ADV. SRI.A.A.ZIYAD RAHMAN BY ADV. SRI.V.R.REKESH BY ADV. SRI.GEORGE JACOB BY ADV. SRI.VARUGHESE M.EASO, SC, M.G. UNIVERSITY BY ADV. DR.P.LEELAKRISHNAN, SC, M.G.UNIVERSITY BY SRI. T.A. SHAJI, SC, M.G.UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 23940 of 2010 (N)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** **EXT.P1- TRUE COPY OF THE ORDER OF APPOINTMENT DATED 7.7.1994.** **EXT.P2- TRUE COPY OF THE ORDER DATED 01.12.2003.** **EXT.P3-TRUE COPY OF THE ORDER DATED 22.08.2007.** **EXT.P4-TRUE COPY OF THE GOVERNMENT ORDER G.O(P)171/99/H.EDN.DATED 21.12.1999.** **EXT.P5-TRUE COPY OF THE LETTER DATED 15.01.2008.** **EXT.P6-TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.8787/2010 DATED 05.04.2010.** **EXT.P7-TRUE COPY OF THE OBJECTION DATED 04.05.2010.** **EXT.P8-TRUE COPY OF THE JUDGMENT IN W.A.470/2008.** ## **RESPONDENT(S) EXHIBITS:** **EXHIBIT R1(A)- TRUE COPY OF THE AFORESAID ORDER DATED 19.12.2005 PASSED BY THE UNIVERSITY.** ## **EXHIBIT-R1(B)- TRUE COPY OF THE GOVERNMENT ORDER DATED 14.01.2008.** **EXHIBIT-R1(C)- TRUE COPY OF THE JUDGMENT DATED 23.09.2008 IN W.P.(C) 17358/2008.** **EXHIBIT R2(A) -TRUE COPY OF THE ORDER NO.AC.B V-1-798-05 DATED 19.12.2005 ISSUED BY THE RESPONDENT.** R.AV //TRUE COPY// PA TO JUDGE ## **A.M.SHAFFIQUE, J.** ## *** * * * * ** * * * *** W.P.C.NO.23940 OF 2010 ---------------------------------------- Dated this the 17[th] day of February 2014 ## **JUDGMENT** ## **------------------** This writ petition is filed by the Government inter alia challenging Exts.P2 and P3 issued by the 2[nd] respondent, University granting placement to the 1[st] respondent as Lecturer - Senior scale and Lecturer - Selection grade. 2. The facts involved in the above case would disclose that the 1[st] respondent was appointed as a Lecturer in the 3[rd] respondent College on 07.07.1994 in a leave vacancy. He was regularised on 01.06.1995. Later, by way of Ext.P2 dated 01.12.2003 he was promoted to the post of Lecturer - Senior scale with effect from 28.11.1999. By Ext.P3 dated 22.08.2007 the 1[st] respondent was promoted as Lecturer - Selection grade with effect from 28.11.2004. Government did not pay the salary of the petitioner in the scale of pay applicable to the placement. The 1[st] respondent filed W.P.C.No.8787/2010 for disbursing the salary. This court disposed of the writ petition reserving the right of the petitioner to challenge the validity of University orders. 3. According to the petitioner as per Ext.P4 Government Order dated 21.12.1999 which interalia prescribes the method of appointment, promotion etc. the minimum 2 service required for promotion as Lecturer - Senior scale is continuous service of 5 years and Lecturer - Selection grade is 10 years. In regard to appointment in leave vacancy or ad-hoc appointment certain conditions are imposed in Paragraph 7.7 which reads as under:- - _“7.7 The appointment was not ad-hoc or in a leave vacancy of less than one year duration. Adhoc 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 committee; and_ - _(c) the incumbent was selected to the permanent post in continuation to the ad-hoc service, without any break”._ It is hence contended that since the 1[st] respondent's broken service was for less than one year duration, he was not entitled for promotion to the post of Lecturer Senior grade with effect from 28.11.1999 as he had not completed five years of service computed with effect from 01.06.1995, the date on which he was regularised. The Government also relies upon the judgment of this Court in W.A.No.470/2008 at Ext.P8 in order to contend that the 1[st] respondent was not eligible to be promoted to the 3 said post during the relevant time as he had not completed continuous service for the relevant period from the date of regular appointment. 4. Counter affidavit is filed by the 1[st] respondent supporting the impugned orders interalia relying upon Ext.R1(a) an order dated 19.12.2005 issued by the Mahatma Gandhi University (hereinafter referred to as M.G. University) making applicable the restriction imposed in Ext.P4 from 1.1.1996 which reads as under:- ## _“MAHATMA GANDHI UNIVERSITY_ ## _(Abstract)_ _Career advancement of teachers in affiliated colleges coming under direct payment scheme - Counting of broken spells of service below one year as qualifying service - Approved - Orders issued._ ## _ACADEMIC B V SECTION_ _Ac.B V-1-798-05 Dated, Priyadersini Hills,_ _19.12.2005._ _Read:- (1) G.O.(P) No.171/99/H.Edn dated, 21.12.1999._ _(2) Item No.10/5.56/3091 of the minutes of the meeting of the syndicate held on 2- 12-2005._ ## _ORDER_ _The Government, vide the G.O. read above, have implemented the revised UGC Scheme 1998 with effect from 27-7-1998. The University has been_ 4 _granting approval to the promotions of eligible teachers as per the above order as well as per the directions of the Government issued from time to time. In the process, the University has not placed any objections to the counting of approved broken spells of service irrespective of its length. But, the Deputy Directors of Collegiate Education, the authorities to sanction salary to the teachers, withhold the revised salary in some cases where broken spells of less than one year had been reckoned as qualifying service, on the ground that it is against the provision 7.7 of the Government Order. Many aggrieved teachers approached the Hon'ble High Court for the release of their salary. The Director as well as the Deputy Directors of Collegiate Education requested to reconsider such approvals and the matter was placed before the Syndicate SubCommittee on affiliation and the Syndicate for a decision._ _The meeting of the Sub-Committee of the Syndicate on affiliation held on 12.01.2005resolved that the stipulation of minimum one year duration for counting broken service for promotion as Lecturer, Senior Scale/Selection Grade insisted by G.O.(P) No.171/99/H.Edn dated, 21.12.1999 is to be made applicable only from 01.01.1996. It was also resolved to follow the precedents in the University prior to 01.01.1996. The Syndicate meeting held on 02.12.2005, vide item No.10/5.56/3091, has resolved to stick on to the very same resolution._ 5 _Hence it is ordered that all the broken spells of service prior to 01.01.1996, which were approved by the Universities concerned and the respective Deputy Directors of Collegiate Education, shall be reckoned as qualifying service for Career Advancement as Lecturer, Senior Scale/Selection Grade. Ad-hoc service or service in a leave vacancy of more than one year duration after 01.01.1996, however, shall be counted as qualifying service if the appointment was made on the recommendations of duly constituted Selection Committee and if the incumbent was selected to permanent post in continuation to the ad-hoc service/service rendered against the leave vacancy._ _Orders are issued accordingly._ ## _REGISTRAR.”_ The University therefore decided that all the broken spells of service prior to 01.01.1996, which were approved by the Universities concerned and the respective Deputy Directors of Collegiate Education, shall be treated as qualifying service for Career Advancement as Lecturer, Senior Scale/Selection Grade. It is also contended that the writ petition is liable to be dismissed on the ground of delay and laches in challenging Exts.P2 and P3. University also supports the stand taken by the 1[st] respondent. 6 5. The learned Government Pleader on behalf of the petitioner submits that when the Government had issued Ext.P4 order, the University had no right to pass another order resolving to make applicable Ext.P4 only from 01.01.1996. In so far as, Ext.P4 had been issued based on UGC guidelines and the liability to pay salary is on the State Government, University cannot approve promotions overlooking UGC guidelines which has been accepted by the Government. 6. On the other hand, the learned counsel appearing for the 1[st] respondent submits that as long as the authority to make appointments, promotion and approval of the same in respect of Lecturers of the Colleges/University vests with the University, the Government cannot interfere with the said appointment. Reference is made to the Division Bench of this Court in **Cherian Mathew v Principal, S.B.College, Changanassery** reported in **(1998 (2) KLT 144)** and also the judgment of the learned Single Judge of this Court in W.P. (C)No.17358 of 2008. Further reference is made to Statute 16 of Chapter 45 of Mahatma Gandhi University Statutes 1997 which reads as under:- _“16: Approval of Appointments: (1) Approval of every appointment to the teaching post shall be made by the Syndicate subject to the condition that_ 7 _the appointment is in accordance with the staff pattern fixed by the University and that the person so appointed is fully qualified, for the post._ _(2) The Deputy Director of Collegiate Education concerned shall verify before making direct payment of salaries as to whether the post for which payment is claimed is in accordance with the staff pattern and workload fixed by the University. Doubtful cases shall be referred to the University for clarification and the correctness of direct payment ensured._ _(3) In the case of those private colleges coming under the direct payment scheme, the Director of Collegiate Education or the officer authorized by him in this behalf shall verify in consultation with the University as to whether the teaching post in private colleges are in excess of posts sanctioned by the University. However, in the case of incumbents declared as supernumerary is by the University, the controlling offices shall ensure that no fresh appointment East made against future vacancies and tail all the supernumeraries are absorbed against those vacancies. The direct payment of salaries shall not be made to the person appointed against fresh vacancies, before the absorption of supernumeraries.”_ 7. It is not in dispute that as per Ext.P4 the period of ad-hoc service or service in leave vacancy can be considered only under certain circumstances. In order to count the past service of the employee for the purpose of placement in the 8 senior scale under the UGC scheme, the ad-hoc service or the service in leave vacancy shall not be less than one year. Only in such event the said period shall be counted for the purpose of continuity in service. Admittedly the petitioner did not have the continuous period of one year service in leave vacancy as his appointment was from 07.07.1994 to 01.06.1995. Ext.P4 came into force with effect from 01.01.1996. As on that date admittedly going by paragraph 7.7 of Ext.P4 the 1[st] respondent's service in broken spells could not be counted for promotion. If such a view is taken, apparently the 1[st] respondent is not entitled to get placement as Lecturer Senior scale with effect from 28.11.1999. It is also relevant to note that Ext.P2 was issued only on 01.12.2003. At that time Ext.P4 Government order was in force and it was not open for the University to have approved the appointment of the 1[st] respondent to the said post with effect from 28.11.1999. In other words, Ext.P2 was squarely contrary to Ext.P4 Government Order. Subsequently the University came forward with another order which is produced as Ext.R1(a). In Ext.R1(a) the University had taken a view that the stipulation of one year duration for counting broken service for promotion will be applicable only from 01.01.1996 and the precedents prior to the said date has to be followed. 9 8. It is the contention of the learned counsel appearing for the respondents that prior to 01.01.1996 there was no such restriction. This decision is clarified in the subsequent Government order dated 14.01.2008 and produced as Ext.R1 (b). Further, as far as Ext.P8 judgment is concerned that was a case in which the broken period of service was admittedly beyond 01.01.1996 and therefore the factual situation in that case has no application to the case on hand. In this case the 1[st] respondent had been working during the broken period prior to 01.01.1996 which was not the case in Ext.P8. The learned counsel appearing for the respondents also contended that there is a delay to file this writ petition and therefore the writ petition is liable to be rejected on the ground of delay and laches. 9. Having regard to the factual situation and legal issues raised by either side the short question to be considered is whether Exts.P2 and P3 are liable to be interfered with and that too at this point of time. 10. It cannot be disputed that at the time when Ext.P2 was passed, Ext.P4 Government order was in force and the rule clearly indicated that if a person was not having broken service for more than one year the same cannot be taken into consideration for the purpose of computing the period of service 10 for promotion to the next grade. 11. It is clear that the University had issued several orders like Ext.P2 over a period of time and finally when it came to the situation that irregular orders were to be regularised and to overcome Ext.P4 they have issued Ext.R1(a). It is indicated in Ext.R1(a) that Sub-Committee of the Syndicate on affiliation had resolved that the stipulation of minimum one year duration for counting broken service for promotion as Lecturer, Senior Scale/Selection Grade is to be made applicable only from 01.01.1996. This benefit was not available to any such person going by Ext.P4 which is clear from Ext.P8 judgment also. Therefore the question would be whether the University can issue such an order virtually modifying Ext.P4 without the consent and approval of the Government. 12. The learned counsel for respondents placed reliance on statute 16 of Chapter 45 of the University First statutes, the judgment of this Court in **Cherian Mathew's** case (supra) and another judgment in W.P.(C) No.17358/2008, at Ext.R1(c) to indicate that approval of promotion made by the University has to be accepted by the Government and the Government cannot interfere with such appointments. 13. In **Cherian Mathew’s** case (supra), the question was whether the Government can interfere in the decision 11 taken by the University with reference to the number of teachers to be appointed in a department in a College run by private management. It was also held that the Government is not entitled to impose a condition that prior approval from the Directorate of Collegiate Education is needed for a management to appoint a teacher in its staff. The said factual situation does not arise in the present case. As far as the judgment of a learned Single Judge of this Court in W.P.C.No.17358 of 2008 is concerned, a situation as similar to the present facts does not arise. The question that arose was regarding approval granted by the University which cannot be rejected by the Deputy Director. That is not the situation here. This is an instance where the U.G.C guidelines were made applicable by the Government which is binding on the University as well. Therefore, the factual situation in the said case also will not apply to the facts of the present case. True that, the Government cannot interfere with any appointments made by the University. But that does not mean that the Government cannot challenge the appointments so made if it is illegal or irregular. This is an instance where the Government had challenged the appointments made in favour of the 1[st] respondent which according to them is not legally sustainable. If the University had overlooked the Government orders which 12 relates to the procedure to be followed by accepting UGC guidelines, which the University is also bound to follow the Government can challenge such appointments. Once the Government had applied UGC guidelines, the Universities are bound to follow the same without any demur. Statute 16 of Chapter 45 does not further indicate that irregular appointments made by the University cannot be challenged by the Government invoking the jurisdiction of this Court. This is an instance in which the Government had challenged the University's order and if the appointment is found to be illegal on account of the Government orders issued based on UGC guidelines, it will be open for this Court to interfere with the same. 14. Ext.P4 Government order is issued on the basis of the UGC guidelines. From Ext.R1(a) it is clear that when the Government had implemented the UGC guidelines with effect from 01.01.1996, University has issued an order accepting the said norms. The University cannot issue any norms nullifying UGC guidelines by issuing Ext.R1(a). Therefore, I am of the view that Ext.R1(a) being contrary to UGC guidelines is illegal and would not give any benefit to the 1[st] respondent to contend that his service for less than one year has to be taken into consideration for his promotion/placement to the post of 13 Lecturer Senior scale/ Selection grade, and that he should be paid the scale of pay applicable to the said post. If the University had acted illegally by giving promotion contrary to such Government orders, the Government has the right to contend that they are not bound to pay the salary on the basis of such illegal promotion by the University. 15. True that, in the judgment in Ext.P8 there is a slight change in the factual situation as contended by the learned counsel appearing for the respondents. But the principle that has to be made applicable is well clear. This Court had held that a person who claims the benefit of Government order at Ext.P4 should satisfy the conditions. In this case the 1[st] respondent does not claim the benefit of Government order at Ext.P4. He relies upon Ext.R1(a) in order to contend that there is a modification made by the University. The University cannot modify Ext.P4. The Government has subsequently issued Ext.R1(b) order dated 14.1.2008, reiterating their stand that no modification can be made to Ext.P4. It only indicates that the Government has withdrawn the letter dated 20.4.2005, calling upon the Director of Collegiate Education to review the UGC placements by counting past service including broken service for the period between 1.1.1996 and 21.12.1999. 14 16. For the aforesaid reasons I am of the view that the promotion given to the 1[st] respondent in terms of Exts.P2 and P3 are contrary to Ext.P4 guidelines and are liable to be set aside. 17. The next question is regarding the delay in filing the writ petition. Ext.P2 has been issued as early as on 01.12.2003 and Ext.P3 has been issued on 22.08.2007. The writ petition is filed on 16.7.2010. The question is whether the Government has paid any salary with reference to Exts.P2 and P3. It is at the time when there was failure on the part of the Government in paying the salary in terms of the placement given to the 1[st] respondent by virtue of Exts.P2 and P3 that he had approached this Court by filing W.P.(C)No.8787 of 2010. This Court allowed the writ petition subject to the right of the Government to take up the validity of approval before the University during the placement of promotion. It is further considered as evidenced from Ext.P7 dated 04.05.2010. Therefore this was a case in which the Government did not undertake the liability to pay salary of the 1[st] respondent in terms with Exts.P2 and P3 and therefore I am of the view that the writ petition cannot be rejected on the ground of delay as it is a continuing cause of action in so far as the Government is concerned with the liability to pay the salary on the basis of Exts.P2 and P3. 15 In the above circumstances, this writ petition is allowed. Exts.P2 and P3 are quashed. The University is directed to issue fresh orders on the basis of Ext.P4 within a period of two months from the date of receipt of a copy of this judgment. ## **A.M.SHAFFIQUE, JUDGE** R.AV