State of Kerala v. Dr. Devasia M.D. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **FRIDAY, THE 07TH DAY OF FEBRUARY 2020 / 18TH MAGHA, 1941** **WA.No.2227 OF 2018** **AGAINST THE JUDGMENT DATED 20.12.2017 IN WP(C) 36084/2017(I) OF HIGH COURT OF KERALA** ## **APPELLANT:** **STATE OF KERALA, REPRESENTED BY THE SECRETARY, HIGHER EDUCATION (C) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** ## **BY GOVT. PLEADER B VINOD** ## **RESPONDENTS/PETITIONERS & 2ND RESPONDENT IN WPC:** - **1 DR. DEVASIA M.D., S/O DEVASIA, MADTHIPURATH HOUSE, RESIDING AT SHARON HOMES, NEAR NGO QUARTERS, THRIKKAKKARA P.O, PIN-682021.** - **2 THE REGISTRAR, KANNUR UNIVERSITY, THAVAKKARA, KANNUR-670002.** - **3 ADDL.R3 THE UNIVERSITY GRANTS COMMISSION REPRESENTED BY ITS SECRETARY, BAHADUR SHAH ZAFAR MARG, NEW DELHI-110002.** 2 W.A.No.2227/2018 **4 ADDL.R4 MINISTRY OF HUMAN RESOURCES DEVELOPMENT REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION, GOVERNMENT OF INDIA, 127-C, SHASTRI BHAVAN, DR.RAJENDRA PRASAD ROAD, NEW DELHI-110001.** **(ADDL.R3 AND R4 SUO MOTU IMPLEADED AS PER ORDER DATED 05/04/2019)** **R1 BY ADV. SRI.J.JULIAN XAVIER R2 BY SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY R3 BY ADV. SRI.S.KRISHNAMOORTHY (B/O) R4 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 W.A.No.2227/2018 ## **JUDGMENT** Dated this the 7[th] day of February 2020 ## **Shaffique, J** This appeal is filed by the State of Kerala challenging the judgment dated 20.12.2017 in W.P.(C).No.36084/2017. The petitioner had approached this Court inter alia seeking the following reliefs: “i. To call for the records connected with the case leading to Ext.P7 and quash the same by issuing a writ of certiorari. ii. To declare that in the light of the qualification and experience, petitioner is eligible to be appointed and designated as Professor in the Post Graduate Department of Economics in Nirmalagiri College, Kannur. iii. To issue a writ of mandamus or any other appropriate writ, order or direction directing the 2[nd] respondent to assess the number of posts eligible to be earmarked for Professors in the Post Graduate Department of Economics in Nirmalagiri College, Kannur, affiliated to the 2[nd] respondent and give placement to the petitioner as Professor, on the basis of his qualification and experience, within a time frame fixed by this Hon'ble Court.” 2. The learned Single Judge did not find it necessary to quash Ext.P7, however issued the following directions: “5. In the above view of the matter, there will be a direction to the 1[st] respondent to take effective steps for the 4 W.A.No.2227/2018 implementation of the 6[th] UGC Scheme as approved by the Government Order dated 27.03.2010 and especially clause 5.2 and 6.2 contained in the UGC Scheme within a period of three months from the date of receipt of a copy of this judgment.” 3. The main contention urged by the learned Government Pleader is that, though the petitioner had only sought for his appointment as a Professor in the Department of Economics at Nirmalagiri College, Kannur, a blanket direction had been issued by the learned Single Judge directing the State to implement Clauses 5.2 and 6.2 contained in UGC Scheme which was approved as per Government Order dated 27.03.2010. The learned Government Pleader further submits that it is for the State Government to fix the conditions of service in terms of Article 309 of the Constitution of India and therefore, the Government should not be mulcted with the liability to pay the salary fixed by the UGC under the said scheme. Learned Government Pleader also placed reliance on Article 41 of the Constitution of India which reads as under: “ **Art.41** . The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.” Reliance is also placed on the judgment of the Apex Court in **B. Bharat Kumar & Others v. Osmania University & Others** [(2007) 11 SCC 58], wherein the Apex Court after considering the question 5 W.A.No.2227/2018 regarding retirement age of the employees of various Universities held that, in so far as the State Government has not accepted the UGC Regulations to fix the age of superannuation at 60 years, teachers cannot claim as a matter of right that they were entitled to retire on attaining the age of 60 years. Paragraphs 12 and 13 of the said judgment are relevant which reads as under: “ **12.** We would, therefore, first examine as to whether the two Division Benches have rightly relied upon the said judgment held against the appellants. We have examined the judgment in extenso. This is also a case where UGC had floated a scheme in 1986 which was framed by the Central Government pursuant to the Mehrotra Committee Report. In that scheme there was a Circular dated 17-6-1987 addressed by the Ministry of Human Resource Development, Department of Education to the Education Secretaries of all the States, UTs and it was clearly mentioned therein that the adoption of the scheme was voluntary and the only result that follow from the State Government not adopting the scheme might be that the State Government may not get the benefit of the offer of reimbursement from the Central Government to the extent of 80% of the additional expenditure involved in giving effect to the revision of pay scales as recommended by the scheme. Therefore, the factual situation was almost identical as in the present case. This Court approved specifically a paragraph in the Kerala High Court judgment which we have already quoted earlier in this judgment in para 5. In that the Kerala High Court had specifically rejected the contention that the State Government having accepted the UGC scheme and as the scheme provided for the higher age of 60 years, the clause of the scheme regarding age of retirement also would become applicable. The Kerala High Court had specifically further observed that the UGC scheme did not become applicable as it was not obligatory for the Government and the universities to follow the same. The Kerala High Court read 6 W.A.No.2227/2018 a discretion in the State Government to accept or not to accept the scheme. **13.** The situation is no different in the present case also. The very language of the letter dated 27-7-1998 suggests that the scheme is voluntary and not binding at all. Further it is specified in the judgment of the Kerala High Court that the teachers had no right to claim a specific age because it suggested in the scheme which scheme was itself voluntary and not binding. The Court clearly observed that “the appellant cannot claim that major portion of the scheme having been accepted by the Government, they have no right not to accept the clause relating to fixation of higher age of superannuation”. The Court therein observed that it is a matter between the State Government on the one hand and the University Grants Commission on the other and it would be for the University Grants Commission to extend the benefit of the scheme or not to extend the same depending upon its satisfaction about the attitude taken by the State Government in the matter of implementing the scheme. It was lastly clearly observed that as long as the State Government has not accepted UGC's recommendations to fix the age of superannuation at 60 years, teachers cannot claim as a matter of right that they were entitled to retire on attaining the age of 60 years.” 4. On the other hand, the learned counsel appearing for the petitioner/1[st] respondent herein would submit that by Ext.P1 Government order dated 27.3.2010, the Government itself have decided to accept the revised UGC Scheme for revision of pay scale and it is pursuant to the same that orders had been issued. Various pay band to which Professors were entitled has also been specifically mentioned therein. It is also pointed out that the University has filed an affidavit before this Court inter alia stating that the Government 7 W.A.No.2227/2018 itself by letter dated 29.1.2019 had called upon the University to provide details regarding the sanctioned strength of Assistant Professors, Associate Professors and Professors in all the Departments in Nirmalagiri College and also had called for the details as to whether the 1[st] respondent has sufficient API scores to be promoted as Professor. By reply dated 6.6.2019 sent by the University to the Principal Secretary to Government, Higher Education Department, it was stated that the Dr. Devassia M.D has requested to exempt him from verifying API Scores for Professorship on the basis of the University Order dated 10.01.2019, which inter alia stated that API Scores are not necessary for promotion pending before 23.02.2016. 5. It is therefore contended that already the details had been furnished to the Government which is pending consideration for sanction of the said post. The learned Government Pleader further submits that as the matter stands now UGC had stopped providing financial assistance and therefore it is the prerogative of the State to decide on the pay scale of the teachers who were appointed in the respective positions. 6. We don't think it necessary to go into such details in the present case. We only clarify that the direction issued by the learned Single Judge shall be confined to the petitioner alone in this case and it shall be open for the Government to take appropriate decision on a 8 W.A.No.2227/2018 case to case basis depending upon the facts of each case. With the above modification the writ appeal is disposed of. Necessary order shall be passed by the Government within a period of two months from the date of receipt of a copy of this judgment. **Sd/-** **A.M.SHAFFIQUE** **JUDGE** **Sd/-** **MARY JOSEPH** kp True copy **JUDGE** P.A. To Judge. 9 W.A.No.2227/2018 ## **APPENDIX:** ## **APPELLANT'S EXHIBITS: NIL** ## **RESPONDENTS' EXHIBITS:** **ANNEXURE R2(a): A TRUE COPY OF THE LETTER DATED 29,01.2019 ISSUED BY THE UNDER SECRETARY TO THE GOVERNMENT, TO THE UNIVERSITY.** **ANNEXURE R2(b): A TRUE COPY OF THE LETTER DATED 06.06.2019 ISSUED BY THE UNIVERSITY TO THE GOVERNMENT IN REPLY TO EXHIBIT R2(a).** **ANNEXURE R2(c): A TRUE COPY OF THE ORDER NO.Acad.B2/15464/2010 DATED 10.1.2019.**