Tojo Sebastian and Others v. Institute of Human Resources Development (IHRD) and Director, IHRD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** ## **&** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 1[ST] DAY OF OCTOBER 2021 / 9TH ASWINA, 1943** ## **WP(C) NO. 17571 OF 2019** ## **PETITIONERS:** - **1 TOJO SEBASTIAN, AGED 44 YEARS** - **(DEMONSTRATOR/WORKSHOP INSTRUCTOR(ELECTRONICS),S/O K M DEVASIA, KALATHIMATTAM, THUMBASSERY, KODATHIPADY, ETTUMANNOOR, KOTTAYAM, KERALA-686661.** - **2 BAIJU E.N, AGED 1 YEARS** - **(DEMONSTRATOR/WORKSHOP INSTRUCTOR(ELECTRONICS),S/O K NARAYANAN NAIR, EDAKKAT, ATHOLI, KOZHIKODE,KERALA673 315.** - **3 DEEPU JOSEPH, AGED 1 YEARS** - **(DEMONSTRATOR/WORKSHOP INSTRUCTOR(ELECTRONICS),C/O ASHAVARGHESE, PUTHENPURACKAL HOUSE, PUTHUPPALLY, KOTTAYAM, KERALA-686 011.** - **4 SAJITHA V, AGED 1 YEARS** - **(DEMONSTRATOR/WORKSHOP INSTRUCTOR(ELECTRONICS),W/O JITHESH GANGADHARAN, SUNNY SIDE(H), NAMBIDIPARAMBATHU, PALAZHI-PALA, G.A COLLEGE P.O.KOZHIKODE, KERALA,673 014.** - **5 AJITHKUMARI P, AGED 1 YEARS** **(DEMONSTRATOR/WORKSHOP INSTRUCTOR(ELECTRONICS),C/O SHAJI E.K, ELLATHUVELI, KARIKKADU P.O.THANNEERMUKKOM S.O.ALAPPUZHA, KERALA-688 527.** ## **BY ADV E.ADITHYAN** :2: WP(C).No.17571 of 2019 ## **RESPONDENTS:** - **1 INSTITUTE OF HUMAN RESOURCES DEVELOPMENT, REPRESENTED BY ITS DIRECTOR, PRAJOE TOWERS, VAZHUTACAUD, THIRUVANANTHAPURAM,KERALA,INDIA-695 014.** - **2 DIRECTOR, INSTITUTE OF HUMAN RESOURCE DEVELOPMENT, PRAJOETOWERS, VAZHUTACAUD, THIRUVANANTHAPURAM, KERALA, INDIA-695 014.** **BY ADV SRI.DEEPU THANKAN, SC, IHRD BY ADV SMT.UMMUL FIDA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :3: WP(C).No.17571 of 2019 ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** This Writ Petition had come up for hearing along with W.P(C).No.24820 of 2012 and W.P(C).No.4179 of 2018 that were preferred by persons working, inter alia, as Technicians Grade II (Electronics) in various institutions run by the Institute of Human Resource Development (IHRD). The grievance of the writ petitioners essentially pertained to the non-consideration of their candidature for promotion to the post of lecturer in the said institution. The case projected in the Writ Petition was that in terms of the Special Rules that were in force in the IHRD with effect from 03.11.2001, the promotion to the post of lecturer was to be made of candidates having the required qualification of a degree in Engineering Technology with 60% marks or a pass in Section A and B of AMIE together with three years regular service in the IHRD. The writ petitioners had acquired the necessary qualification in terms of the Special Rules 2001 only after 10.05.2011, by which time the Special Rules itself were amended to prescribe different qualifications. The amended Rules also envisaged future appointments to the post of lecturer to be through direct :4: WP(C).No.17571 of 2019 recruitment and not by promotion. The petitioners, however, contended that inasmuch as the vacancies to the post of lecturer had arisen on various dates prior to 07.02.2011, the effective date of amendment of the Rules, the said vacancies, even if filled thereafter, had to be filled in accordance with the erstwhile Special Rules that had governed the field till 07.02.2011. 2. After hearing the learned counsel this Court dismissed the Writ Petitions on the following reasoning: “5. Learned counsel for the petitioners would contend that the IHRD was not justified in keeping the posts of lecturers unfilled and without promoting the petitioners, since the date of arising of the vacancies in the post of lecturer. It is their further contention that, notwithstanding the fact that they had obtained the qualification contemplated under the erstwhile Special Rules, only after 07-02-2011, the effective date of the amended Rules, their entitlement to promotion had to be determined based on the qualifications obtained by them which were in accordance with the erstwhile Special Rules. In particular, it is contended that unless the IHRD demonstrated that there were valid reasons to keep the vacant posts of lecturers unfilled from the date of arising of the vacancies in the said posts, till the effective date of the revised Rules, they cannot resort to a filling up of the posts of lecturers through direct recruitment, and with persons having the new qualifications prescribed. In support of their contention, they rely on the decision in Dr.K.Ramulu and another v. Dr. S.Suryaprakash Rao and others (1997 (3) SCC 59). As regards the petitioners in W.P.(C) No.17571/2019, it is the submission of the learned counsel Sri Adithyan Ezhapilly, that the petitioners had the necessary qualification even under the revised Rules and hence the IHRD was not justified in :5: WP(C).No.17571 of 2019 relying on the amendment to the method of recruitment to deny them appointment to the post of lecturer. 6. On a consideration of facts and circumstances of the case and the submissions made across the bar, we are of the view that in as much as it is the admitted case that as on the effective date of the revised Special Rules namely 07-02-2011, the writ petitioners did not have the necessary qualification even as per the unamended Special Rules of 2001, their contention that there was no conscious decision taken by the IHRD to keep the vacant posts of lecturers unfilled, cannot come to their aid since even if the IHRD had decided to fill the said vacancies, the petitioners could not have been promoted. Their right for consideration for promotion would, in that event, have been postponed to the date on which they acquired the necessary qualification under the un-amended special rules. In the instant case, by the time the petitioners obtained the qualifications as per the erstwhile Special Rules, sanction had already been accorded for implementation of the amended Special Rules. For the period after 07-02-2011 therefore, the IHRD could not be faulted for not filling up the vacancies in the post of lecturer based on the erstwhile Special Rules, for it is settled law that an employer can choose to fill up vacant posts in accordance with amended rules, even if they are in a draft stage. It is also well settled that candidates do not have a vested right for promotion and an amendment in a Rule resulting in the candidate W.P.(C) Nos.24820 of 2012 and connected cases 15 in a feeder category being rendered ineligible for promotion cannot be seen as affecting the right of the said candidate. It is the Rule that is prevalent at the time when the consideration for promotion takes place that would be applicable on the facts and circumstances of the case. (See: Deepak Agarwal and another v. State of Uttar Pradesh and others (2011 (6) SCC 725). That apart, while it may be true that a conscious decision has to be taken by an employer in choosing not to fill up a vacant post by promotion, there is no absolute Rule that vacancies must be filled in accordance with the Rule existing as on the date of occurrence of the vacancy, unless the Rule in question lays down any particular time frame within which the :6: WP(C).No.17571 of 2019 selection process is to be completed (See: State of Tripura and another v. Nikhil Ranjan Chakraborthy and others (2017 (3) SCC 646 and Union of India and others v. Krishnakumar and others (2019 (4) SCC 319). In the instant cases, as already noticed, the petitioners cannot find fault with the IHRD for not effecting promotions to the post of lecturer till 07-022011, since they were admittedly not qualified for such promotion even as per the un-amended Special Rules. Their subsequent acquisition of qualification as per the unamended Special Rules also could not come to their aid since by that time the amended Special Rules had come into force, W.P.(C) Nos.24820 of 2012 and connected cases 16 notwithstanding that they received the formal approval of the Government only in 2014 (Exhibit P13 in W.P.(C) No.4179/2018). Thus, in any view of the matter, the petitioners cannot aspire for a promotion to the post of lecturer in the various institutions of IHRD. The writ petitions therefore fail and are dismissed. As a consequence W.A.No.424/2021, preferred against the interim order dated 24-02-2021 in W.P.(C).No.17571/2019, is allowed. “ 3. In the Review Petition preferred by the petitioners in W.P(C).No.17571 of 2019, it was their contention that their Writ Petition was dismissed on an erroneous finding that the petitioners, although qualified under the amended Special Rules, could nevertheless not aspire for promotion to the post of lecturer since the amended Special Rules had also brought about a change in the manner of recruitment to the post of lecturer. It was their case that even as per the amended Rules, there is a quota reserved for promotion as lecturers and they are qualified in all respects to be considered for promotion as lecturer :7: WP(C).No.17571 of 2019 under the said quota. It was contended by Sri.Elvin Peter, the learned counsel for the review petitioners that the review petitioners were not seeking appointment to the post of Assistant Professor in the Engineering Colleges which fell under different streams but were seeking appointment to the post of lecturer in Engineering/Technology in the Polytechnic Colleges under the IHRD and for the said petitioners the amended Rules that govern appointment as lecturer reads as follows: ## “ **S(MPT) 3.Lecturer in Engineering/Technology** |Scale of Pay|Rs.11910-340-13610-380-16650-450-19350| |---|---| |**For DIRECT RECRUITMENT (65%)**|| |Qualifications|First class Bachelor's Degree in<br>appropriate<br>branch<br>of<br>Engineering/Technology<br>from<br>a<br>recognized<br>university<br>after<br>undergoing a regular course of<br>study*| |Method of<br>Appointment|By Direct Recruitment<br>Mode of selection:- As per Rule XIII<br>at Page No.44| |Appointing<br>Authority|Director, IHRD| |**For INTERNAL SELECTION (35%)**|| ||Bachelor's Degree in appropriate| :8: WP(C).No.17571 of 2019 |Qualifications|branch of Engineering/Technology<br>(with not less than 60% mark<br>aggregate) from a recognised<br>University after undergoing a regular<br>course of study| |---|---| |Method of<br>Appointment|(1) By selection from among qualified<br>Foreman under IHRD Service with 3<br>years experience<br>(2) In the absence of (1) above, by<br>selection from among the qualified<br>Demonstrator/Workshop Instructor<br>under IHRD service in the<br>appropriate branch who have<br>acquired 4 years experience<br>Mode of selection:- As per Rule XIII<br>at Page No.44| |Appointing<br>Authority|Director, IHRD| *Protection for the Lecturers of Polytechnics who were in service under IHRD as on 07.02.2011. ## **Note:** 1.BTech Degree holders in Electrical and Electronics are not eligible for recruitment of lecturer in Electronics Engineering 2. B.Tech Degree holders in Electronics are eligible for recruitment of Lecturer in Telecommunication Technology.” 4. He reiterates that as far as the petitioners are concerned they cannot be seen at par with the petitioners in the other Writ Petitions inasmuch as there is a special provision protecting their interests even under the amended Rules of 2014, which took effect from 2011. :9: WP(C).No.17571 of 2019 5. Per contra, it was the submission of Smt.Ummul Fida, the learned counsel for the IHRD that while it may be a fact that the amended Rules rendered the petitioners qualified for the post of lecturer in Engineering/Technology in the Polytechnics under the IHRD, the IHRD had, apart from taking a conscious decision not to fill up the post of lecturers in terms of the erstwhile Rules, also taken a decision to postpone the promotions on account of financial constraints faced by them. 6. On a consideration of the rival submissions, we were convinced that our judgment dated 29.03.2021 in relation to W.P(C).No.17571 of 2019 required to be recalled. Accordingly, we allowed the Review Petition and took up this Writ Petition for fresh consideration on merits. While it is the submission of the learned counsel for the IHRD that the financial constraints were also a reason for the decision to defer promotions of persons to the post of lecturers in the Polytechnic institutions under the IHRD, we note that no such contention was taken in the counter affidavit filed in response to the Writ Petition. That apart, at the time of argument before this Court in the Writ Petitions that were earlier disposed by the judgment dated 29.03.2021, the contention of the IHRD was that they had postponed the promotion of persons as lecturers solely because they wanted to effect the :10: WP(C).No.17571 of 2019 promotions in accordance with the amended Special Rules. The present Writ Petition was earlier disposed along with the connected Writ Petitions as detailed above on the premise that the petitioners herein albeit qualified as per the amended Special Rules with effect from 2011, could not be considered for promotion in view of the changed mode of recruitment to the post of lecturer in terms of the AICTE norms. 7. We find now that, as per the amended Special Rules, the method of selection through internal selection was retained in respect of lecturers of Polytechnics who were in the service under the IHRD as on 07.02.2011 and it was in furtherance of the said protection that an internal selection of 35% of the posts was retained for qualified Demonstrator/workshop Instructors under the IHRD service, who had four years of experience. It is not in dispute that the petitioners in the present Writ petition were qualified Demonstrators/Workshop Instructors under the IHRD service. It would follow, therefore, that they can be considered for internal selection to the vacant posts of lecturer in the Polytechnic institutions under the IHRD treating the vacancies in the said post as arising on the date on which they satisfied the eligibility condition for consideration to the posts. :11: WP(C).No.17571 of 2019 Accordingly, we allow the Writ Petition by directing the respondents 1 and 2 to consider the petitioners for selection to the post of lecturer in the Department of Engineering/Technology in the Polytechnic Colleges under the IHRD in terms of the amended Special Rules of 2014, and against the quota prescribed thereunder for internal selection. The respondents shall do the needful to complete the exercise within three months from the date of receipt of a copy of this judgment. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **GOPINATH P. JUDGE** mns :12: WP(C).No.17571 of 2019 ## **APPENDIX OF WP(C) 17571/2019** **PETITIONER EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE DOCUMENT SHOWING APPOINTMENT DATES OF PETITIONERS 1 TO 5** **EXHIBIT P2 TRUE COPY OF THE NOTIFICATION FOR APPOINTMENT TO THE POST OF LECTURER IN ELECTRONICS ENGINEERING DATED 28.8.2018** **EXHIBIT P3 TRUE COPY OF THE PROVISIONAL CERTIFICATE ISSUED BY THE UNIVERSITY AWARDING B TECH DEGREE TO THE PETITIONERS** **EXHIBIT P4** - **TRUE COPY OF THE REPRESENTATIONS FORWARDED BY THE PETITIONERS** - **EXHIBIT P5 TRUE COPY OF THE REPLY OF THE SECOND RESPONDENT TO REPRESENTATIONS DATED 12TH JULY 2012** **EXHIBIT P6** - **TRUE COPY OF THE RELEVANT PORTION OF THE INSTITUTE OF HUMAN RESOURCES DEVELOPMENT SPECIAL RULES 2014 WITH REGARD TO APPOINTMENT TO THE POST OF LECTURER IN THE DEPARTMENT OF ENGINEERING/TECHNOLOGY** **EXHIBIT P7 TRUE COPY OF THE REVISED STAFF PATTERN DATED 14.02.2014** **EXHIBIT P8** - **TRUE COPY OF THE REPLY RECEIVED THROUGH RIGHT TO INFORMATION ACT** :13: WP(C).No.17571 of 2019 ## **EXHIBIT P9** **TRUE COPY OF THE JUDGMENT IN WP NO 2316 OF 2019 DATED 25TH DAY OF JANUARY 2019** **EXHIBIT P10** **TRUE COPY OF THE PROCEEDINGS OF THE INSTITUTE OF HUMAN RESOURCES DEVELOPMENT DATED 5TH MARCH 2019 TO THE POST OF LECTURER IN THE BRANCH OF MECHANICAL ENGINEERING** ## **EXHIBIT P11** **TRUE COPY OF THE ORDER OF THE SECOND RESPONDENT DATED 9TH MAY 2019** ## **RESPONDENT EXHIBITS** **EXHIBIT R1(A)** **TRUE COPY OF THE GO(MS) NO692/2014/H.EDN.DATED 20.8.2014** ## **//TRUE COPY//** **P.A TO JUDGE**