Kerala High Court
K.G.Thankachan vs State Of Kerala on 14 July, 2021
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
OP(KAT) NO. 368 OF 2020
AGAINST THE ORDER IN OA (EKM) 827/2016 DATED 21-05-2020 OF
THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
PETITIONERS/APPLICANTS NOS.1,3 TO 5 :
1 K.G.THANKACHAN, AGED 55 YEARS,
S/O. GOVINDAN, KARUKAYIL, VILLOONNI P.O,
ARPOOKKARA, KOTTAYAM,PIN-686 008, NOW WORKING AS
ENGINEERING INSTRUCTOR, GOVERNMENT TECHNICAL HIGH
SCHOOL, PALA, KOTTAYAM DISTRICT.
2 K.S. CHANDRAN, AGED 52 YEARS,
S/O. SANKARAN NAIR, ATHIRA NIVAS,
KURUPPANKULANGARA P.O, CHERTHALA, ALAPPUZHA,
PIN-688 539, NOW WORKING AS ENGINEERING
INSTRUCTOR, GOVERNMENT TECHNICAL HIGH SCHOOL,
KAVALAM, ALAPPUZHA DISTRICT
3 SIVARAMAN VALIYAKKAL, AGED 54 YEARS,
S/O. V.S. VELAYUDHAN, ELAVALLY SOUTH P.O,
PIN 680511, NOW WORKING AS WORKSHIP FOREMAN,
GOVERNMENT TECHNICAL HIGH SCHOOL, THRISSUR.
4 V.P. SUNNY, AGED 51 YEARS,
S/O. V.P. PAUL, VELUKARAN HOUSE, KUTTUR P.O,
THRISSUR 680 013, NOW WORKING AS ENGINEERING
INSTRUCTOR, GOVERNMENT TECHNICAL HIGH SCHOOL,
THRISSUR, PIN-680 020
BY ADV SMT.I.SHEELA DEVI.
O.P (KAT) No.368 of 2020 2
RESPONDENTS/RESPONDENTS :
1 STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DIRECTOR OF TECHNICAL EDUCATION,
THIRUVANANTHAPURAM-695 023.
BY SRI.B.UNNIKRISHNA KAIMAL, GOVERNMENT PLEADER.
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 14.07.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P (KAT) No.368 of 2020 3
ALEXANDER THOMAS & A.BADHARUDEEN, J J.
------------------------------------------------
O.P (KAT) No.368 of 2020
[Arising out of the impugned final order dated 21-05-2020 in O.A (EKM) No.827 of 2016
on the file of KAT, Tvm.]
----------------------------------------------------
Dated this the 14th day of July, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayers in the aforecaptioned O.P(KAT) filed under Articles 226 & 227 of the Constitution of India are as follows { See page 10 of the paper book of OP(KAT) }:
" .......... to stay the operation of the order in O.A(EKM) No.827/ 2016 dated 21-05-2020 of the Kerala Administrative Tribunal, Thiruvananthapuram, pending final disposal of the above O.P(KAT) in the interest of justice."
2. Heard Smt.I.Sheela Devi, the learned counsel appearing for the petitioners herein/original applicants 1 & 3 to 5 in the O.A and Sri.B.Unnikrishna Kaimal, the learned Government Pleader appearing for the respondents in the O.P/respondents in the O.A.
3. The prayers in the instant Ext.P1 O.A (Ekm) No.827 of 2016 filed by the petitioners herein are as follows {See page No.23 of the paper book of O.P(KAT)} :
"i) Issue an order directing the respondents to grant the scale of pay of O.P (KAT) No.368 of 2020 4 Assistant Lecturer to the applicants since they are completed 10 years of service during the year 1999 even though the said post was abolished with effect from 5/2000;
ii) To protect the pay scale which is applicable to the post of Assistant Lecturer in the scale of pay of Rs.6,675-10,550 since they have qualified for promotion to the post of Assistant Lecturer at the time of abolition of the said post;
iii) Issue such other reliefs as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case; and
iv) Award the cost of the applicant in these proceedings."
4. The Tribunal after hearing both sides has rendered the impugned Ext.P3 final order dated 21-5-2020 in O.A (EKM) No.827 of 2016 by holding that since the entitlement of the applicants for grant of higher grade on completion of ten years service occurred only in July 1999 and as the post of Assistant Lecturer, which is a promotion post already stood abolished w.e.f 21-12-1998, the applicants cannot be given the said benefit of higher grade. Further, the Tribunal has also held that the reliance placed by the original applicants on Annexure A7 judgment dated 23-12-2009 of the Division Bench of this Court in Writ Appeal No.678 of 2009 is misplaced inasmuch as in the said case the entitlement of the appellants therein for the same higher grade occurred on 26-10-1998, whereas the post of Assistant Lecturer was abolished subsequently on 21-12-2019 and that therefore, it is only on account of the fact that at the time of their entitlement, the post of Assistant Lecturer was not abolished that the Division Bench of this Court has O.P (KAT) No.368 of 2020 5 granted relief in that case. It is this final order rendered by the Tribunal at Ext.P3 that is under challenge in this original petition.
5. The facts in this case are not in serious dispute. All the original applicants had joined service some time in July 1989 as Workshop Instructor and the next promotion in such case is the post of Assistant Lecturer. The incumbents are eligible for grant of time bound higher grade in the scale of pay of Rs.6675-10,550, which is the scale of pay attached to the above said post of Assistant Lecturer on the incumbents completing ten years of service. The said benefit is given to incumbents who complete ten years of service and who are otherwise qualified for promotion to the post of Assistant Lecturer and who have to stagnate in the feeder category on account of non promotion due to non availability of sufficient vacancies. Accordingly, it was the case of the original applicants that the post of Assistant Lecturers was the promotion post for Workshop Instructor and as per the terms of Annexure A1 order dated 24-6-1996, all of them were qualified for promotion and hence they were also eligible and entitled for grant of time bound higher grade on completion of ten years' service to those of the said incumbents, who do not get actual promotion to the next higher category post of Assistant Lecturers.
O.P (KAT) No.368 of 2020 6
6. As per Annexure A2 G.O.(Ms) No.158/98/H.Edn dated 21-12-1998, the competent authority of the State Government in the Higher Education Department had inter alia ordered that the post of Assistant Lecturers will stand abolished, but that those incumbents, who have already been regularly promoted as Assistant Lecturer can continue to hold those posts until their retirement, resignation or next promotion, etc. This aspect of the matter regarding the abolition of the post of Assistant Lecturer w.e.f 21-12-1998 on the basis of the above said G.O dated 21-12-1998, is also referred to in Annexure A7 judgment dated 23-12-2009 rendered by the Division Bench of this Court in W.A Nos.678 of 2009 & 708 of 2009. It is also a common ground that all the applicants have completed ten years of service in the feeder category post of Workshop Instructors only some time in July 1999. By that time, the post of Assistant Lecturer stood already abolished w.e.f 21-12-1998. Hence, the respondents were not in a position to grant time bound higher grade to the present applicants, as their entitlement for the said higher grade occurred after the abolition of the post. Since the next promotion post itself has been abolished, there is no question of getting any right for getting time bound higher grade. Time bound higher grade can be claimed in cases O.P (KAT) No.368 of 2020 7 where the incumbent is otherwise qualified and eligible for promotion to the post of Assistant Lecturer and those incumbents who do not get the actual opportunity to be regularly promoted to the post of Assistant Lecturer on account of lack of vacancies, could claim the benefit of time bound higher grade on completion of ten years service, so that they could be conferred higher grade benefit in the scale of pay of Rs.6,675-10,550 attached to the post of Assistant Lecturer. But where the said post carrying the higher scale is itself abolished, the departmental authorities may not be in a position to grant the benefit of time bound higher grade, as in the instant case. It is in the light of the above aspects that the Tribunal has dismissed the O.A. We find no infirmity in the said considered views rendered by the Tribunal.
7. A contention has been raised by the Original applicants/petitioners herein stating that reading of Annexure A2 G.O dated 21-12-1998 would indicate that all the post of Assistant Lecturers were not abolished in one go w.e.f 21-12-1998 and it was abolished in a piecemeal manner, etc. After hearing both sides and on perusal of Annexure A2 G.O dated 21-12-1998, it can be seen that the Government has ordered that the unoccupied 209 posts of Assistant Lecturer will stand abolished with effect from the date of O.P (KAT) No.368 of 2020 8 said G.O. However, in the last paragraph of Annexure A2 G.O, it is stated that those incumbents who have already been regularly promoted as Assistant Lecturers can continue to hold the said post till their resignation, retirement or next promotion, etc. The said provision made in Annexure A2 G.O is only to protect the incumbents who have already been regularly promoted to the post of Assistant Lecturer. That does not take away the effect of abolition of the unoccupied posts of Assistant Lecturer w.e.f 21-12-1998. Certain other contentions have also been raised by the original applicants stating that the Public Service Commission has even thereafter proceeded with the selection process, etc. On the basis of pleadings, the Tribunal has found that the said action of the Public Service Commission was on the basis of earlier requisition given by the department prior to the issuance of Annexure A2 G.O dated 21-12-1998 and that therefore those aspects cannot be pressed into service for claiming the benefit of time bound higher grade. We are in agreement with the said views of the Tribunal overruling the said contentions of the original applicants.
8. In the light of these aspects, we are not in a position to hold that the verdict of the Tribunal would deserve interdiction at our hands. Smt.I.Sheela Devi, the learned counsel appearing for the O.P (KAT) No.368 of 2020 9 petitioners would submit that, in view of the serious anomaly faced by the present petitioners, the Government should at least grant pay protection to them, etc. The learned Government Pleader would submit that he has no instructions on this aspect as there are no pleadings in that regard in the original application. We need not get into those aspects and we make it clear that if the petitioners have any such legitimate and genuine grievances, it is for them to agitate the same by filing due representations before the competent authority of the State Government in the Higher Education Department, which may be forwarded through the Head of the Department concerned (Director of Technical Education). If any such representation is filed, it is for the competent authority of the State Government in the Higher Education Department to examine those grievances of the petitioners and consider the same and decision be taken thereon by the Government after affording a reasonable opportunity to be heard by the petitioners without much delay preferably within 3 months, at any rate, within 4 months from the date of receipt of such representation along with a copy of this judgment. No other orders or directions are called for. The orders and directions of the Tribunal at Ext.P3 will stand modified as above.
O.P (KAT) No.368 of 2020 10
With these observations and directions, the above original petition is finally disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
A. BADHARUDEEN, JUDGE
amk
O.P (KAT) No.368 of 2020 11
APPENDIX OF OP(KAT) 368/2020 :
PETITIONERS' ANNEXURES :
ANNEXURE A1 TRUE COPY OF THE ORDER NO. 24208/PRU.
1/96/FIN. DATED 24.06.1996 ISSUED BY
THE 1ST RESPONDENT.
ANNEXURE A2 TRUE COPY OF THE ORDER G.O(MS) NO.
158/98/H.EDN. DATED 21.12.1998 ISSUED
BY THE 1ST RESPONDENT.
ANNEXURE A3 TRUE COPY OF THE GAZETTE NOTIFICATION
DATED 10.08.1999 PUBLISHED BY THE
PUBLIC SERVICE COMMISSION.
ANNEXURE A4 TRUE COPY OF THE ORDER NO. EC3-52217/95
DATED 09.02.1998 ISSUED BY THE
DIRECTORATE OF TECHNICAL EDUCATION,
THIRUVANANTHAPURAM.
ANNEXURE A4(a) TRUE COPY OF THE ORDER NO.
EC4/8199/99/DTE DATED 02.06.1999 ISSUED
BY DIRECTORATE OF TECHNICAL EDUCATION,
THIRUVANANTHAPURAM.
ANNEXURE A4(b) TRUE COPY OF ORDER NO. E2/1058/99 DATED
09.12.1999 ISSUED BY THE CHAIRMAN,
GOVERNING BODY, S.S.M. POLYTECHNIC,
TIRUR.
ANNEXURE A4(c) TRUE COPY OF THE ORDER NO.
DPI/970(2)/2000 DATED 17.09.2001 ISSUED
BY REGIONAL DIRECTORATE OF TECHNICAL
EDUCATION, KOTHAMANGALAM.
O.P (KAT) No.368 of 2020 12
ANNEXURE A5 TRUE COPY OF THE CIRCULAR
NO.EC3/3564/99 DATED 28.09.1999 ISSUED
BY THE DIRECTORATE OF TECHNICAL
EDUCATION, THIRUVANANTHAPURAM.
ANNEXURE A6 TRUE COPY OF THE ORDER G.O(RT) NO.
926/04/H.EDN. DATED 12.07.2004 ISSUED
BY THE 1ST RESPONDENT.
ANNEXURE A7 TRUE COPY OF THE REPRESENTATION DATED
20.12.2015 SUBMITTED BY THE 3RD
APPLICANT TO THE 1ST RESPONDENT.
EXHIBIT P1 TRUE COPY OF O.A.(EKM) NO. 827/2016
FILED BY PETITIONERS BEFORE THE KERALA
ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED
28.09.2017 FILED BY THE 1ST RESPONDENT
IN NO. 827/2016 KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM.
EXHIBIT P3 TRUE COPY OF THE ORDER DATED 21.05.2020
IN O.A. (EKM) NO. 827/2016 OF THE
HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT W.A. NO.
678/2009 DATED 23.12.2009 OF THE
HON'BLE HIGH COURT OF KERALA.