W.A. No. 1782 of 2018 (Kerala High Court) – Registrar, Sree Sankaracharya University of Sanskrit, Kalady & another v. Dr. C.S. Rajan & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 20TH DAY OF JANUARY 2020 / 30TH POUSHA, 1941** **WA.No.1782 OF 2018** **AGAINST THE JUDGMENT DATED 5.2.2018 IN WP(C) 951/2008(L) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 & 2 IN WPC:** **1 THE REGISTRAR SREE SANKARACHARAYA UNIVERSITY OF SANSKRIT, KALADY** **2 SREE SANKARACHARYA UNIVERSITY OF SANSKRIT KALADY REPRESENTED BY ITS REGITRAR** **BY ADV. PRASANTH S., SC** ## **RESPONDENTS/PETITIONER & 3RD RESPONDENT IN WPC:** **1 DR. C.S. RAJAN READER IN HINDI (RETIRED), SREE SANKARACHARAY UNIVERSITY OF SANSKRIT, KALADY, NOW RESIDING AT HOUSE NO.33/102/E SOUMYA NAGAR ROAD, ALINCHUVADU, EDAPPALLY P.O., KOCHI-24** **2 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** **R1 BY ADV. N.N.SUGUNAPALAN (SR.) R1 BY ADV. S.SUJIN SMT. RAJI. T. BHASKAR- G.P. FOR R2** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 10-01-2020, THE COURT ON 20-01-2020 DELIVERED THE FOLLOWING:** 2 W.A.No.1782/2018 ## **JUDGMENT** Dated this the 20[th] day of January 2020 ## **Shaffique, J** This appeal is filed by respondents 1 and 2 in W.P. (C).No.951/2008, challenging the judgment dated 5.2.2018 by which the learned Single Judge had set aside the impugned order Ext.P7 and directed that the petitioner should be considered for promotion to the post of Professor on him being satisfied with other norms of promotion. By Ext.P7, the Government took a view that in so far as the petitioner had less than 8 years of service as Reader, his claim for Professorship with effect from 1.11.2002 is not allowable. 2. The short facts of the case are as under: The petitioner was initially appointed as a Lecturer in NSS College on 30.08.1970 and he was promoted as Selection Grade Lecturer (Senior Scale) on 1.1.1986. He continued in the said post for 8 years and 10 months. On 1.11.1994, he joined Sree Sankaracharya University of Sanskrit as Professor and was relieved from there, after completion of 2 years and 11 months. On 17.11.1997 he re-joined as Reader in the said University and retired on 30.04.2006. The contention of the petitioner is that as per the norms prescribed by the University, Reader 3 W.A.No.1782/2018 with 8 years service has to submit an application for promotion as Professor. The petitioner is having a total service of 34 years and his service as Professor from 1.11.1994 till the retirement should be counted for the purpose of considering him to the post of Professor. According to the petitioner, he was functioning as a Reader from 17.11.1997 to 15.05.2005. He had rendered service from 1994 to 1997 in the University and therefore he is entitled to have the period from 1.11.1994 to 15.5.2005 counted as Reader for conferring Professorship. He had submitted several representations and ultimately by Ext.P9 his request was denied. 3. Objection has been filed by respondents 1 and 2 inter aila stating that the petitioner joined the service as Professor in Hindi in Sree Sankaracharya University of Sanskrit on 1.11.1994. But the said appointment was set aside by this Court and accordingly he was relieved from the service of the University with effect from 30.9.1997. His period of service between 1.11.1994 to 30.9.1997 was treated as “on deputation”. Subsequently, he was appointed as Reader on regular basis in the University on 17.11.1997 and continued in the post till 31.05.2005. It is contended that the 1[st] spell of service of the petitioner as Professor is treated as service on deputation and therefore it cannot be stated that he was in regular service of University. He joined regular service of the University only on 17.11.1997 and completed 7 years, 5 months and 15 days as on date 4 W.A.No.1782/2018 of retirement. It is stated that the claim for professorship can be conferred only on Readers with 8 years service and since the petitioner lacks 8 years qualifying service, he cannot be considered for promotion to the cadre of Professor. The University has taken the matter with the Government and the Government clarified that the petitioner is not entitled for promotion to the post of Professor since he has less than 8 years service as Reader. 4. The learned Single Judge while allowing the writ petition observed that in so far as the past service in the post of Lecturer in an aided college cannot be reckoned for the purpose of promotion as Professor, as per UGC Regulations, experience as Reader alone can be reckoned for promotion. However, it was held that, since the petitioner has more than 2 ½ years service as Professor, which indicates that he had higher experience in the said post than that of a Reader, the petitioner has sufficient experience which could be reckoned for the purpose of counting the number of years, in which event, the petitioner shall be entitled to get sufficient number of years for the purpose of getting promotion. 5. The learned counsel for the appellants while impugning the aforesaid judgment took us to the various Regulations and the orders passed. He also placed reliance on the judgments of the Apex Court in **Bhupendra Nath Hazarika & Another v. State of Assam & Others** ( 2013 (2) SCC 516) and a Division Bench judgment of this 5 W.A.No.1782/2018 ## Court in **Sree Sankaracharya University of Sanskrit V. State** (1996 (2) KLT 378). 6. On the other hand, the learned Senior counsel Sri. N.N. Sugunapalan appearing on behalf of the 1[st] respondent contended that the learned Single Judge was justified in allowing the writ petition taking into account the over all facts and circumstances involved in the case. This is a case in which the petitioner was having substantial experience in teaching and he was working as a Professor for quite a long time. The appointment as Professor in the University came to be challenged before this Court. This court has set aside the appointment. Though the said period during which he was working as a Professor was treated as 'on deputation', the fact that he was working as Professor cannot be disputed. That apart, he was working as Lecturer Selection Grade for a considerably long period and there is no difference between the scale of pay of a lecturer Selection Grade and Reader in which event he was working in the post of Reader for a considerably long period which ought to be tagged along with the service rendered as Reader in the University. 7. There is no dispute about the fact that to enable a person to be promoted to the post of Professor, as per the UGC Regulations 2000, the said person should work as a Reader with a minimum of 8 years of service. Apparently, the petitioner does not have 8 years service as a Reader. The learned Single Judge observed that the 6 W.A.No.1782/2018 petitioner was functioning as a Professor for about 2 ½ years which is a higher experience than the post of Reader and though the said appointment had been set aside by this Court, the said period can be computed along with the period during which the petitioner was appointed as a Reader. The aforesaid finding according to us cannot be sustained. The petitioner was appointed in the post of Professor which was set aside by a Division Bench of this Court in **Sree Sankaracharya University (supra).** In other words, the said appointment had become nonest in the eye of law as it was found to be illegal. Therefore, whatever benefits that had accrued to a person on the basis of the said illegal appointment or an appointment which was set aside cannot be counted for any service benefits. 8. However, the learned counsel for the petitioner/1[st] respondent would contend that since the pay scale of Senior Selection Grade Lecturer is the same as that of a Reader, petitioner qualifies for being appointed as a Professor in terms with UGC Regulations of 2000. Reference was made by the petitioner to Ext.P9 and order issued by the Government which reads as under: “In accordance with the guidelines issued by the UGC in their letters read above, regarding counting of past service for promotion from Reader to Professor under Career Advancement Scheme, Govt. are pleased to order that the past service of a Reader will be considered for promotion to the post of Professor only if he or she had rendered his or her service in the same scale of pay (Rs.3700-5700 (pre-revised), Rs.12000-18300 7 W.A.No.1782/2018 (revised) in the Govt. of India/State Govt./Autonomus bodies of Govt. of India or State Govt. Laboratories and if he or she had possessed qualifications equivalent to that of Reader while working in the aforesaid institution/establishments.” It is therefore contended that an equivalent qualification in the same pay scale of Reader is sufficient to appoint a person in the post of Professor, under the Career Advancement Scheme. 9. The counsel for the appellants had produced certain documents along with I.A.No.1/2020. From Annexure 1 dated 22.07.1988 which is the revision of pay scales of teachers in Universities and colleges, it is stated at clause IX as under: “IX. Those Lecturers in the Senior Scale who do not have Ph.D degree or equivalent published work and who do not meet the scholarship and research standards, but fulfill the other criteria prescribed for promotion to the post of Reader and have a good record in teaching and/or participation in extension activities, will be placed in the grade of Rs.3700-5700 subject to the recommendations of the Selection Committee for promotion to the post of Reader. They will be designated as Lecturers in the Selection Grade. They could offer themselves for fresh assessment after obtaining Ph.D and/or fulfilling other requirements for promotion as Readers, and if found suitable, could be given the designation of Reader.” 10. Further reference had been made to Annexure 2 letter dated 13.3.2003 wherein the UGC had issued guidelines for counting of past service for promotion from Reader to Professor under the Career Advancement Scheme. It was followed by yet another letter, Annexure 3 dated 27.5.2003 which reads as under: 8 W.A.No.1782/2018 “In continuation to this office circular of even number dated 13.3.2003 (copy enclosed for ready reference) on this subject cited above, I am directed to inform you that the Commission in its's meeting held on 9.4.2003, considered the guidelines for counting of past service for promotion from Reader to Professor and decided that past service of a Reader be considered for promotion to the post of Professor only if he or she had rendered his or her service in the same scale of pay [Rs.3700-5700 (pre-revised) Rs.12,00018,300 (revised)] in the Government of India/State Government/Autonomous Bodies of Government of India or State Government Laboratories and if he or she had possessed qualifications equivalent to that of Reader whilst working in the aforesaid institutions/establishments.” But the aforesaid letters were withdrawn by Annexure 4 letter dated 23.9.2003 which reads as under: “This is in supersession of this office letter No.F.2-5/2000 (PS) dated 13[th] March, 2003 and 27[th] May, 2003 (copies enclosed) on the subject cited above, I am directed to inform you that counting of past service for promotion from Reader to Professor under Career Advancement Scheme be kept in abeyance until further directions are given. The circulars above quoted may please be treated as withdrawn.” 11. It is clearly stated in Annexure 4 that counting of past service for promotion from Reader to Professor under Career Advancement Scheme will be kept in abeyance until further directions are given and the earlier letters Annexures 2 and 3 are withdrawn. It is apparent that Ext.P9 which has been relied upon by the petitioner was issued by the Government when the guidelines mentioned in Annexures 2 and 3 were in force. Therefore Ext.P9 has lost its 9 W.A.No.1782/2018 relevance. From this it is apparent that the past service in an equivalent post having the same scale of pay cannot be taken into consideration for the purpose of promotion from the post of Reader to Professor. Even the learned Single Judge had observed that such a past service cannot be reckoned for the purpose of Carrier Advancement Scheme. 12. The Apex Court in **Bhupendra Nath Hazarika (supra)** had clearly held that any appointment made against the Rules would be illegal and such appointees cannot claim seniority even when their appointment is later regularised. Taking into consideration all these facts, we are of the view that the learned Single Judge was not justified in allowing the writ petition. Hence the appeal is allowed and we set aside the judgment of the learned Single Judge. ## **Sd/-** ## **A.M.SHAFFIQUE, JUDGE** **Sd/-** True copy ## **MARY JOSEPH, JUDGE** P.A. To Judge. kp 10 W.A.No.1782/2018 ## **APPEDIX:** ## **APPELLANTS' EXHIBITS:** **ANNEXURE 1: TRUE COPY OF LETTER NO. F-1-21/87 U.I DATED 22-071988 SENT BY THE DEPARTMENT OF EDUCATION, MINISTRY OF HUMAN RESOURCES DEVELOPMENT ALONG WITH APPENDIX I.** **ANNEXURE 2: TRUE COPY OF CIRCULAR NO. F.2-5/2000(PS) DATED 13-32003 ISSUED BY THE UGC.** **ANNEXURE 3: TRUE COPY OF CIRCULAR NO. F.2-5/2000(PS) DATED 2705-2003 ISSUED BY THE UGC.** **ANNEXURE 4: TRUE COPY OF CIRCULAR NO. F.2-5/2000(PS) DATED 2309-2003 ISSUED BY THE UGC** ## **RESPONDENTS' EXHIBITS:** **ANNEXURE-R1(A). TRUE COPY OF GOVERNMENT ORDER DATED 27.03.1990.** **ANNEXURE-R1(B).TRUE COPY OF THE PAY FIXATION ORDER ISSUED BY THE DEPUTY DIRECTOR OF COLLEGE EDUCATION.** **ANNEXURE -R1(C). TRUE COPY OF THE SERVICE BOOK SHOWING THE DATE OF PROMOTION AS PROFESSOR GRADE-II IS PRODUCED HEREWITH AND MARKED AS DATE OF PROMOTION AS.** **ANNEXURE-R1(D). TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE BOOK SHOWING THE FIXATION OF PAY AS RS.3700-5700**