W.P.(C).Nos.26318 of 2011, 25909 of 2013 and 11890 of 2013

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936** ## **WP(C).No. 26318 of 2011 (L)** **---------------------------------------** ## **PETITIONER(S):** **----------------------** **1. SALILAKUMARI.P.M., POOL OFFICER AND P.A.TO PRO-VICE CHANCELLOR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN.** **2. JAYA P.V., POOL OFFICER, RECORDS, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN.** **BY ADVS.SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.M.V.JOSEPH (ALAPPUZHA)** - **RESPONDENT(S): -------------------------** **1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O., KALAMASSERY-683104, REPRESENTED BY ITS REGISTRAR.** **R1 BY SPECIAL GOVERNMENT PLEADER SRI. SUNIL CYRIAC, R2 BY ADV. SRI.MILLU DANDAPANI, SC, COCHIN UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-08-2014, ALONG WITH WPC.11890/2013 & WPC.25909/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 26318 of 2011 (L)** ## **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **------------------------------------** **EXHIBIT P1: TRUE COPY OF THE ORDER NO.AD.G1/203/2009(P) DATED 31-3-2011 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P2: TRUE COPY OF THE RELEVANT EXTRACT OF G.O.(P)NO.86/2011/FIN. DATED 26-2-2011 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P3: TRUE COPY OF THE ORDER NO.AD.A3/5361/76 DATED 30-8-1988 OF THE 2ND RESPONDENT.** - **EXHIBIT P4: TRUE COPY OF THE ORDER NO.AD.A1.203/87 DATED 30-8-1988 OF THE 2ND RESPONDENT.** - **EXHIBIT P5: TRUE COPY OF THE REPRESENTATION PREFERRED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT DATED 9-5-2011.** **EXHIBIT P6: TRUE COPY OF THE REPRESENTATION DATED 9-5-2011 PREFERRED BY THE 2ND PETITIONER.** - **EXHIBIT P7: TRUE COPY OF THE JUDGMENT DATED 26-5-2011 IN WPC 14158/2011 OF THIS HON'BLE COURT.** - **EXHIBIT P8: TRUE COPY OF THE ORDER NO.47863/ARC-B3/2011/FIN. DATED 22-9-2011 OF THE 1ST RESPONDENT.** - **EXHIBIT P9: TRUE COPY OF THE JUDGMENT DATED 24-2-2011 IN WPC 11730/2010 OF THIS HON'BLE COURT.** - **EXHIBIT P10: COPY OF THE JUDGMENT DATED 21/5/14 IN WPC.NO.9276/13 OF THIS HON'BLE COURT** **EXHIBIT P11: COPY OF THE ORDER NO.AD.G3/PROMOTIONS (T)/2014 DATED 9/4/14 ISSUED BY THE 2ND RESPONDENT UNIVERSITY** **EXHIBIT P12: COPY OF THE ORDER NO.AD.G3/PROMOTIONS (T)/2014 DATED 10/6/14 ISSUED BY THE 2ND RESPONDENT** ## **RESPONDENTS' EXHIBITS** **--------------------------------------** **EXHIBIT R1(A): COPY OF THE GO(P)NO.86/11/FIN.DATED 26/2/11 READ WITH GO(P) NO.144/2011/FIN.DATED 30/3/11.** **EXHIBIT R1(B): COPY OF THE GO(P)NO.62/2006-H EDN.DATED 12//6/2006** **PJ** **....2/-** **..2..** **WP(C).No. 26318 of 2011 (L)** **---------------------------------------** **EXHIBIT R1(C): COPY OF THE LETTER NO.47863/ARC-B3/2011/FIN.DATED 22/9/11 EXHIBIT R1(D): COPY OF LETTER NO.26989/B2/2000/H.EDN.DATED 5/8/2004 EXHIBIT R1(E): COPY OF THE GO(P)NO.2278/99//FIN./DATED 17/11/99 EXHIBIT R1(F): COPY OF THE GO(P)NO.817/2001/FIN.DATED 11/6/2001.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **P.B.SURESH KUMAR, J.** ----------------------------------------------- W.P.(C).Nos.26318 of 2011, 25909 of 2013 and 11890 of 2013 ----------------------------------------------Dated this the 20[th] day of August, 2014 ## **J U D G M E N T** In the process of unifying the scales of pay of similar posts in the Universities and the Government Secretariat, the Nineth Pay Revision Commission recommended to the Government to dispense with the practice of promoting Office Superintendents as Section Officers and Pool Officers in the service of the Universities. On the basis of the said recommendations of the Pay Revision Commission, the Government ordered to dispense with the practice of promoting Office Superintendents in the Universities as Section Officers and Pool Officers with effect from 01.02.2011. 2. Petitioners in W.P(C) No.11890 of 2013 are employees of the Cochin University of Science and Technology (the University) for short, who were promoted as Superintendents on 31.03.2013. They were promoted in the resultant vacancies of Superintendents, who were promoted as Section Officers on 31.03.2011. Petitioners in W.P.(C) No. 26318 of 2011 were Section Officers in the University, who were promoted as Pool Officers on 31.03.2011. Petitioners in W.P.(C) No. 25909 of W.P.(C) No.26318/11 & connected cases 2 2013 are employees of the University, who are eligible to be considered for promotion to the posts of Section Officer and Pool Officer, if promotions are effected to the said posts by the University. 3. The petitioners in W.P.(C) No.26318 of 2011, having been promoted to the post of Pool Officers after 01.02.2011, in the light of the Government decision referred to above, the University has taken steps to revert them to their original posts. They have though preferred representations seeking restoration of promotion to the posts of Section Officers and Pool Officers, the same were rejected by the Government as per Ext.P8 communication. As far as the petitioners in W.P.(C) No.11890 of 2013 are concerned, since they were promoted on 31.03.2013 in the vacancies of Section Officers, who were promoted as Pool Officers, in view of the decision of the Government referred above, they were not paid the pay and allowances due in respect of the post. Petitioners in W.P.(C) No.25909 of 2013 have approached this Court aggrieved by the decision of the Government in dispensing with the practice of promoting Office Superintendents in the Universities as Section Officers and Pool Officers with effect from 01.02.2011. The crux of the reliefs sought for in these W.P.(C) No.26318/11 & connected cases 3 writ petitions is to compel the University to fill-up the vacancies in the posts of Section Officer and Pool Officer. Petitioners in W.P.(C) No.26318 of 2011 seek to quash Ext.P8 decision of the Government also. 4. The Government filed counter affidavits in WP (C) NO. 26318 of 2011 and in WP(C) No.11890 of 2013. No counter affidavit is seen filed in WP(C) No.25909 of 2013. The University has filed a statement in WP(C) No. 25909 of 2013. 5. It is stated in the counter affidavit of the Government that the Nineth Pay Revision Commission, recommended to award uniform scales of pay to similar posts in the Universities as in the Government Secretariat and dispense with the practice of promoting Office Superintendents in universities as Section Officers and Pool Officers, since such practice was not prevalent in the secretariat service and the Government have accepted the said recommendation and issued orders directing discontinuance of the posts of Section Officers and Pool Officers in the Universities with effect from 1. 02. 2011. It is explained in the counter affidavit that pay revision is a package and the Universities cannot accept the recommendations and object the conditions attached to the same. W.P.(C) No.26318/11 & connected cases 4 6. The issue now to be decided is as to whether the employees of the University can be denied the benefits of the decision of the University on account of the general orders issued by the Government , while implementing the recommendations of the Nineth Pay Revision Commission. Under Section 18 of the Cochin University of Science and Technology Act, 1986, it is for the Syndicate of the University to create teaching, technical, administrative, ministerial and other posts in the University, in the exigencies of service. It is not disputed that the Syndicate of the University is the authority to determine the method of appointment to various posts in the service of the University. It is also not disputed that the University has created the posts of Section Officer and Pool Officer, long prior to the recommendations of the Nineth Pay Revision Commission, and eligible incumbents were being appointed/promoted to those posts in accordance with the rules prescribed by the syndicate. Exts.P3 to P7 in WP(C) No.25909 of 2013 are decisions of the Syndicate of the University, creating the posts of Section Officers and related matters. The said decisions of the University would indicate that the posts of Section Officers are created to make avenues W.P.(C) No.26318/11 & connected cases 5 of promotion for Typists/Stenographers in its service as in other Universities in the State. Ext.P11 in W.P.(C) No. 26318 of 2011 is the communication issued by the University in connection with the decision taken by the syndicate of the University on 25.03.2014. The decision of the Syndicate referred to in Ext.P11 indicates that the Syndicate had discussed the issues relating to the promotion avenues of employees in the categories of Typists and Stenographers on 25.3.2014 and resolved to adopt the promotion pattern existed prior to the recommendation of the Nineth Pay Revision Commission. Ext.P11 decision of the Syndicate of the University also indicates that the posts of Section Officers and Pool Officers were created to avoid stagnation of employees in the categories of Typists/Stenographer and to provide them legitimate avenues of promotion. It is thus evident that there has been no change at all in the stand of the University as far as the requirement of the posts of Section Officers and Pool Officers are concerned, even after the decision of the Government to dispense with the said posts. 7. Identical issue came up for consideration before this court at the instance of similarly placed employees of the University of Kerala in W.P.(C) No.9276 of 2013 The relevant W.P.(C) No.26318/11 & connected cases 6 ## portion of the judgment in W.P.(C) No.9276 of 2013 reads thus: “The short question that arises for consideration in the instant writ petition is whether without amending the Kerala University First Ordinances, 1978 which sets out the scale of pay, age limit, minimum qualifications and method of appointment to various posts, the University of Kerala can contend for the position by reason of the pay revision orders which have been implemented, promotions to certain categories of posts cannot be effected. It is not in dispute that the post of Pool Officer was not a post which was originally in existence in the University. It was created, going by the stand taken by the University in its counter affidavit, to provide avenues of promotion to Typists and Confidential Assistants who did not have avenues of promotion beyond the post of Section Officer (FC&D). Though the post of Pool Officer was created by the Syndicate at its meeting held on 165.1998 the ordinances were amended only with effect from 24.01.1989 after the Chancellor gave his assent to the amendment on 9.1.1989. The stand taken by the Government in its counter affidavit is that the pay revision orders which have led to the instant writ petition were issued based on the demands raised by the University employee themselves for Secretariat parity in the scales of pay. Yet another stand taken is that as the pay revision orders have been implemented by the University, its employees are bound by its terms. The stand taken by the Government cannot be in my opinion sustained. Section 36 of the Kerala University Act, 1974 stipulates that the Ordinances shall provide for fixation of the scales of pay of various posts in the University and the terms and conditions of service of officers of the University. Under Section 23 of the Act, the Syndicate of the University is empowered to create administrative, ministerial and other necessary posts, to appoint teachers and other employees of the University and to prescribe their duties. It is also W.P.(C) No.26318/11 & connected cases 7 empowered to make Ordinances and to amend or repeal the same. The procedure for making Ordinances as also for amending the Ordinances is contained in Section 37 of the Act which reads as follows: 37. Procedure for making ordinances.-(1) All Ordinances made under this Act shall have effect from such date as the Syndicate may direct, but every Ordinance so made and the repeal of any Ordinance shall be laid before the Senate during its next succeeding meeting. (2) If any Ordinance or repeal of an Ordinance is not laid before the Senate as required by subsection (1), the Ordinance shall lapse or, as the case may be, the Ordinance repealed shall revived, after the next succeeding meeting of the Senate. (3) Subject to the provisions of sub-sections (1) and (2) the procedure to be followed in making, amending or repealing Ordinances shall be prescribed by the Statutes. (4) No Ordinance involving expenditure shall be valid or come into force until assented to by the Chancellor. As stated earlier, the post of Pool Officer was incorporated in the Ordinances, pursuant to an amendment of the Ordinances after the assent of the Chancellor was obtained on 9.1.1989 and it was published in the Kerala Gazette dated 28.2.1989. The Ordinance have not thereafter been amended in the manner prescribed by the Act. A learned Single Judge of this Court has in W.P.(C)) No.11395 of 2007 held following the decision of a Division Bench of this Court in W.A No. 1908 of 2011 that unless and until the University Ordinances are appropriately amended, the alternate qualification stipulated as equivalent to the qualification prescribed in the Ordinances, by a Government Order cannot be taken into account for the purpose of deciding the W.P.(C) No.26318/11 & connected cases 8 eligibility of employees concerned for appointment to a higher post. In S.N. College v. N. Ravindran (2001(3) KLT 938) a Division Bench of this Court held that unless and until amendments are effected in the University statutes, the stipulations in the UGC scheme cannot be made applicable to private colleges and the managements are not bound to follow the stipulations in the UGC Scheme. It was held that since necessary amendments have not been incorporated in the University statutes the management of affiliated colleges is not bound to follow the same. In the light of the admitted fact that the Kerala University First Ordinances, 1978 has not been suitably amended to make it conform to the recommendations of the Ninth Pay Revision Commission, the government cannot for the reason that it has decided to accept the recommendations of the Pay Revision Commission with certain modification, prescribe or stipulate that the posts contemplated in the Ordinances should not be filled up. Section 37 of the Kerala University Act prescribes the manner in which the Ordinances can be amended. That has admittedly not been done. That apart, the demand made by the University employees was for parity in the scales of pay to similar categories of posts in the Secretariat. They never demanded or sought abolition of the post of Pool Officer. Their only demand was that they should be given parity in the scale of pay as applicable to similar posts in the administrative secretariat. In such circumstances, I am of the considered opinion that neither the University nor the Government can refuse to fill up the posts of Pool Officer in the University in accordance with the provisions contained in the Kerala University First Ordinances, 1978. There is also yet another reason why I am constrained to take such a view. The University has no case that in the light of the recommendations of the pay revision commission which have been accepted by the Government, it proposes to amend the Ordinances and W.P.(C) No.26318/11 & connected cases 9 therefore it has taken a decision not to fill up the post of Pool Officer. I accordingly hold that the petitioners are entitled to succeed. For the reasons stated above, I allow the writ petition and direct respondents 3 and 4 to fill up vacancies in the post of Pool Officer in accordance with the provisions contained in the Kerala University First Ordinances, 1978 and to consider the claim of the petitioner for promotion to such post.” As in the case of the University of Kerala, in the case of Cochin University also, the posts of Section Officers and Pool Officers were originally not in existence in the University and the said posts were created to provide avenues of promotion to Typist/Stenographers. There is no case for the University that the rules providing for appointments/promotion to the posts of Section Officers and Pool Officers have been varied or revoked in pursuance to the said decision of the Government. The stand taken by this Court in the case referred to above is that unless the University takes a decision to amend the rules providing for appointment/promotion to the posts of Section Officers and Pool Officers, in accordance with the decision of the Government, the employees shall not be deprived of their right to be considered for promotion to the said posts. In view of the decision rendered by this Court in W.P.(C) No. 9276 of W.P.(C) No.26318/11 & connected cases 10 2013, in the context of similarly placed employees of the University of Kerala, I am inclined to allow these writ petitions also on the same lines. The writ petitions are, therefore, allowed. Ext.P8 decision in W.P.(C) No. 26318 of 2011 is quashed. The second respondent University in W.P.(C) No.26318 of 2011 is directed to fill-up the vacancies in the posts of Sections officer and Pool Officer, in accordance with the rules and to consider the claim of the petitioners for promotion to such posts. It is made clear that I have not considered the eligibility or otherwise of the incumbents to be appointed/promoted to the posts of Section Officer and Pool Officer to any particular scale of pay. Sd/- **P.B.SURESH KUMAR, JUDGE** smv //true copy//