T.K. Sugathan v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 19TH DAY OF SEPTEMBER 2016/28TH BHADRA, 1938** **OP.No. 11071 of 2003 (R) -------------------------** **PETITIONER(S):** **-------------** **T.K.SUGATHAN, ASSISTANT EXECUTIVE ENGINEER, HIGHER GRADE, MECHANICAL SUB DIVISION, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR.** **BY ADVS.DR.K.P.KYLASANATHA PILLAY SRI.ARUN B.VARGHESE SMT.SREEDEVI KYLASANATH** ## **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REP. BY THE SECRETARY, AGRICULTURAL DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE KERALA AGRICULTURAL UNIVERSITY, REP. BY ITS REGISTRAR, UNIVERSITY OFFICE, VELLANIKKARA, TRICHUR.** **3. VICE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, TRICHUR.** **4. EXECUTIVE COMMITTEE, REP. BY ITS CONVENOR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, TRICHUR.** **5. P.R.GOVINDAN, EXECUTIVE ENGINEER, KERALA AGRICULTURAL UNIVERSITY ENGINEERING DIVISION, COLLEGE OF FISHERIES, PANANGADU, ERNAKULAM.** **6. K.SURESH BABU, EXECUTIVE ENGINEER (PENDING REVERSION) KERALA AGRICULTURAL UNIVERSITY ENGINEERING DIVISION, KELAPPAJI COLLEGE OF ENGINEERING, TECHNOLOGY, TAVANUR, MALAPPURAM.** **R1 BY SENIOR GOVERNMENT PLEADER SRI.SANTHOSH PETER R2-R4 BY ADV. SRI.BABU JOSEPH KURUVATHAZHA, SC** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 11071 of 2003 (R) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1: TRUE COPY OF THE JUDGMENT DTD. 14.3.2003 IN OP.NO.31308/2002 EXHIBIT P2; TRUE COPY OF THE REPRESENTATION DTD.21.3.2003 SUBMITTED BY THE PETITIONER. EXHIBIT P3: TRUE COPY OF THE COMMUNICATION NO.GA/A3/ 36700/2002 DTD.25.3.2003. EXHIBIT P4: TRUE COPY OF THE NOTE DTD.26.3.2003 SUBMITTED BY THE PETITIONER.** **EXHIBIT P5: TRUE COPY OF THE COMMUNICATION NO.GA/A3/ 36700/2002 DTD.26.3.2003. EXHIBIT P6: TRUE COPY OF THE COMMUNICATION RECEIVED BY THE PETITIONER ON 2.5.1973. EXHIBIT P7: TRUE COPY OF PROCEEDINGS NO.GA(4)/21465/75/D.DIS DTD.30.7.1976 OF THE 2ND RESPONDENT. EXHIBIT P8: TRUE COPY OF THE COMMUNICATION NO.A3-4747/76/DPP DTD.4.8.1976 OF 2ND RESPONDENT. EXHIBIT P9: TRUE COPY OF THE COMMUNICATION NO.A3/5329/90 DTD.9.11.1992 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P10: TRUE COPY OF PROCEEDINGS NO.A3/2688/87 DTD.1.3.1993. EXHIBIT P11: TRUE COPY OF THE PROCEEDINGS NO.GA/1835/A1/86 DTD.13.4.1987 PROMOTING THE PETITIONER. EXHIBIT P12: TRUE COPY OF STATUTE NOTIFIED AS NO.63546/P5/76/AD DTD.23.10.1976 VIDE SRO NO.1122/1976. EXHIBIT P13: TRUE COPY OF THE PROCEEDINGS NO.GA/3A/33033/87/D.DIS DTD.30.11.1991. EXHIBIT P14: TRUE COPY OF THE PROCEEDINGS NO.GA/A3/23205/ 2000 (ii) DTD.11.7.2000. EXHIBIT P15: TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT VIDE NO.GA/J1/20464/99 DTD.3.10.2002. EXHIBIT P16: TRUE COPY OF THE COMMUNICATION NO.GA/J1/20464/99 DTD.11.10.2002. Msv/** **-2-** **-2-** ## **WP(C).No. 11071 of 2003 (R) ---------------------------** **EXHIBIT P17: TRUE COPY OF THE NOTIFICATION NO.G.O.(MS) NO.149/81/AD DTD.6.4.1981 OF SRO 623/81. EXHIBIT P18: TRUE COPY OF REPRESENTATION DTD.12.12.2000 SUBMITTED BY THE PETITIONER. EXHIBIT P19: TRUE COPY OF REPRESENTATION SUBMITTED BEFORE 2ND RESPONDENT. EXHIBIT P20: TRUE COPY OF COMMUNICATION DTD.12.9.2002 BEARING NO.GA/A3/29646/2001/L.DIS. EXHIBIT P21: TRUE COPY OF PROCEEDINGS NO.GA/B1/7891/94 DTD.12.9.1996. EXHIBIT P22: TRUE COPY OF REPRESENTATION DTD.17.7.2002 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P23: TRUE COPY OF COMMUNICATION NO.GA/A3/22185/2002/L.DIS. DTD.9.10.2002. EXHIBIT P24: TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE RESPONDENT 5 AND 6 IN OP.31308/2002. EXHIBIT P25: TRUE COPY OF REPLY AFFIDAVIT FILED BY THE PETITIONER ON 4.2.2003 TO P24 COUNTER. EXHIBIT P26: TRUE COPY OF C.M.P.NO.9968/2003 ALONG WITH AFFIDAVIT AND DOCUMENTS PRODUCED BEFORE THIS HON'BLE COURT BY THE PETITIONER IN OP.NO.31308/2002. EXHIBIT P11: TRUE COPY OF THE ORDER GA/A3/17382/04 DTD.31.5.2004. EXHIBIT P11: TRUE COPY OF THE G.O.(P) NO.248/80/AD DTD.8.7.1980.** **RESPONDENT(S)' EXHIBITS -----------------------** ## **NIL** **//TRUE COPY//** **Msv/** **P.S.TO JUDGE** ## **P.V.ASHA J.** ## **-------------------------------------------O.P.No.11071 of 2003** **---------------------------------------------** Dated this the 19[th] day of September, 2016 ## **J U D G M E N T** The petitioner who retired from service as Assistant Executive Engineer (Hr.Gr.) on 31.03.2003 has filed this writ petition challenging Ext.P5 order by which the University rejected his representation for promotion as Executive Engineer. The grievance of the petitioner is that there were no promotional avenues for an Assistant Executive Engineer in the Mechanical branch under the Kerala Agricultural University (hereinafter referred to as the 'University' for short), as in the case of those in the civil branch. 2. The petitioner is a diploma holder in Mechanical Engineering. He commenced service as Engineering Assistant on 02.05.1973, on his appointment on temporary basis. He was regularized with effect from 12.07.1976. He was further promoted as Overseer and thereafter as Overseer Gr.I. In the year 1981, he was promoted as Assistant Engineer and in the year 1987, he was promoted as Assistant Executive Engineer with effect from 12.07.1983, as per Ext.P11 order. The petitioner submits that the Assistant Executive Engineers in the civil branch are eligible for promotion as Executive Engineers. O.P.No.11071 of 2003 2 Respondents 5 and 6, who were appointed as Assistant Engineers in the civil wing in the year 1983 and 1986 got promotion as Assistant Executive Engineers in November, 1988 and June 1993 and they got further promotion as Executive Engineers with effect from 04.01.1997 and 15.04.2000, respectively. 3. The qualification and method of appointment for the posts in the Engineering wing are governed by the University Statutes. Separate Statutes were provided for each branch of Engineering. Ext.P12 statutes prescribed the qualification and method of appointment to the post of Executive Engineer and Assistant Engineer in the Engineering wing of the University. B.Sc Degree in Engineering (Civil) is the qualification prescribed for appointment as Executive Engineer. For appointment as Assistant Engineer B.Sc., Degree in Engineering (Civil) is the qualification prescribed. Appointment to the post of Executive Engineer is made by promotion from Assistant Engineers having qualification in Civil branch of Engineering. Ext.P12 statutes was framed on 23.10.1976. Ext.P17 statutes framed on 09.06.1981 provides for qualification and method of appointment to the post of Assistant Executive Engineers (Mechanical) in the University. But there is no statute which provides for the post of Executive Engineer (Mechanical) in it. O.P.No.11071 of 2003 3 Promotion to the post of Assistant Executive Engineer (Mechanical) is to be made by promotion from Assistant Engineer (Mechanical). 4. Petitioner submits that he has been submitting representations requesting for promotion as Executive Engineer, as he was stagnating in the post of Assistant Executive Engineer right from 1983. Referring to the promotions granted to respondents 5 and 6, he had approached this Court earlier and this Court by Ext.P1 judgment had directed the respondent-University to consider his representation and to take a decision before his retirement after hearing the petitioner. Ext.P5 was the order passed thereupon, after hearing the petitioner, rejecting his request saying that an Assistant Executive Engineer in the Mechanical branch can aspire for promotion as Executive Engineer, only if there is a vacancy in the said post. It was further stated that there is no statute governing the appointment to the post of Executive Engineer (Mechanical) and there is no sanctioned post in existence, in the cadre of Executive Engineer (Mechanical). 5. Petitioner retired from service on 31.03.2003 and this writ petition was filed on 31.03.2003 challenging Ext.P5 and claiming notional promotion to the cadre of Executive O.P.No.11071 of 2003 4 Engineer with reference to the seniority of petitioner and respondents 5 and 6. He has also challenged Ext.P12 statutes on the ground that the same discriminates against the petitioner for promotion to the post of Executive Engineer. Even though petitioner had challenged Ext.P23 order, rejecting his claim for counting his service on daily wages, the learned counsel for the petitioner submitted that the petitioner does not press that relief. 6. Learned counsel for the petitioner relied on the judgments of the Apex Court in **Food Corporation of India and Others v. Parashotam Das Bansal and Others** [2008 (5) SCC 106], **Council of Scientific and Industrial Research and Another v. K.G.S. Bhatt and Another** [1989 (4) SCC 635] and **O.Z.Hussain v. Union of India** (AIR 1990 SC 311) wherein the denial of promotional avenues was held to be violative of Article 14 and 16 of Constitution of India. The learned counsel also relied on the judgment of this Court in **Narayanankutty Nair.K. v. University of Calicut, Malappuram and Others** (2015 KHC 135) where the denial of promotional avenues to the Coaches in the Calicut University was held unjust. It was found that the post of Coach had to be included in the relevant statutory provisions applicable for teaching posts. After referring to the judgments of the Apex O.P.No.11071 of 2003 5 Court in **Food Corporation of India's case (supra), State of Tripura and Others v. K.K.Roy** [2004 (9) SCC 65], **Raghunath Prasad Singh v. Secretary, Home (Police) Department, Government of Bihar and others** (AIR 1988 Supreme Court 1033), **M/s.UJagar Prints v. Union of India** (AIR 1989 Supreme Court 972) etc., this Court held that the denial of opportunity for promotion for long years is unconstitutional and in such circumstances the constitutional courts have jurisdiction to issue directions to make a scheme. It is relevant to note that the Apex Court in **Food Corporation of India's** case after considering the judgments regarding the absence of promotional avenues rendered by in various cases, held as follows in paragraphs 9 and 10: “9. Appellant is a 'State' within the meaning of Article 12 of the Constitution of India. An employee of a State although has no fundamental right of promotion, it has a right to be considered thereof. What is necessary is to provide an opportunity of advancement; promotion being a normal incidence of service. 10. This Court in Dr. Ms. O.Z. Hussain v. Union of India [1990 Supp. SCC 688], opined: “7. This Court, has no more than one occasion, pointed out that provision for promotion increases efficiency of the public O.P.No.11071 of 2003 6 service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is , therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the no no-medical wing of the Directorate.” It was held therein that denial of an opportunity for promotion for long years which was 30 years in that case on the ground that he fell within a category of employees excluded from promotional prospects, had to be remedied by the Superior Courts by issuing necessary directions. 7. In this case the petitioner points out that even O.P.No.11071 of 2003 7 though the petitioner had been working in the post of Assistant Executive Engineer right from 1983, he had to retire from service after working in the very same post for a long period of 20 years, because of the inaction of the University to include the post of Executive Engineer in the Mechanical Branch, in the statute while the similarly situated Assistant Executive Engineers have got promotional avenues in the Civil branch. Hence, it is the claim of the petitioner that he should also be directed to be promoted as Executive Engineer in the Mechanical branch. 8. University has filed counter affidavit stating that the promotions to the post of Executive Engineer are governed by the provisions contained in the statute and the statute does not contain the post of Executive Engineer in the Mechanical branch. Moreover there is no post of Executive Engineer. Government has not sanctioned any post of Executive Engineer in the Mechanical branch for the University and there is no statutes governing the same. It is stated that the petitioner was granted promotion in accordance with the provisions contained in the statute and he was granted grade promotion. 9. Heard the learned counsel for the petitioner and the learned Standing Counsel for the University. 10. Grievance of the petitioner that there is no O.P.No.11071 of 2003 8 promotional avenue for an Assistant Executive Engineer even after stagnating in the post for 20 years is liable to be remedied and redressed by the University with the approval of Government. As held by the Apex Court denial of promotional avenues is unconstitutional. The promotional avenues are provided in order to improve the quality of service, as an incentive for the service rendered by the employees resulting in contentment in service whereby the employer will be able to extract the maximum output out of such service. As held by the Apex Court, denial of promotional avenues is to be remedied by providing appropriate escalations in status at regular intervals of the service career. In this case, the learned counsel for the University points out that no recruitment is being made in the Engineering branches. 11. However, it is for the respondents to consider the case of Engineers in the Engineering wing of the University in different branches and to see that there is no discrimination in different branches of Engineering. It is upto the respondents to seek approval from the Government and to effect modification to the statutes and provide for the promotional avenues depending on the conditions and requirements available in the University. While rejecting the request of petitioner by Ext.P5, the University has not considered any of these aspects. O.P.No.11071 of 2003 9 12. In the above circumstances, there shall be a direction to the respondents to consider the claim raised by the petitioner regarding the stagnation of Assistant Executive Engineers in the Mechanical Branch of Engineering due to the absence of promotional avenues for them in the Kerala Agricultural University and to do the needful to alleviate the problems on account of stagnation to the incumbents in the Mechanical Engineering branch, in terms of the law laid down by the Apex Court in the judgments supra. First respondent is therefore directed to consider the issue after affording an opportunity of hearing to the petitioner. 13. The petitioner will be free to submit supplementary representation before the first respondent along with a copy of the judgment, in which case the first respondent shall, after hearing the petitioner and the second respondent, take appropriate decision within a period of 'four months' from the date of receipt of copy of the judgment. Writ petition is disposed of with the above observations and directions. Sd/- ## **P.V.ASHA, JUDGE.** AS