Kerala High Court
State Of Kerala vs A.K.Abdhul Gafoor on 16 November, 2020
Bench: A.M.Shaffique, P Gopinath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942
OP(KAT).No.404 OF 2020
AGAINST THE ORDER IN TA 5475/2012 DATED 22-05-2019 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS:
1 STATE OF KERALA
REP BY ITS SECRETARY, HIGHER EDUCATION DEPARTMENT
SECRETARIAT, THIRUVANANTHAPURAM, KERALA.
2 THE ADDITIONAL DIRECTOR OF COLLEGIATE EDUCATION,
OFFICE OF THE ADDITIONAL DIRECTOR OF COLLEGIATE
EDUCATION, THIRUVANANTHAPURAM, KERALA
3 THE PRINCIPAL,
GOVERNMENT ARTS AND SCIENCE COLLEGE,
CALICUT, KERALA
BY GOVERNMENT PLEADER
RESPONDENT:
A.K.ABDHUL GAFOOR
LECTURER SELECTION GRADE IN THE DEPARTMENT OF
PHYSICS, GOVERNMENT ARTS AND SCIENCE COLLEGE,
CALICUT, KERALA
BY ADV. SRI. P.C. SASIDHARAN
OTHER PRESENT:
SRI. P.N. SANTHOSH -SR. G.P.,
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 16.11.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP (KAT) No.404/2020 -2-
JUDGMENT
DATED THIS THE 16th DAY OF NOVEMBER, 2020 Gopinath, J:
This OP (KAT) has been filed by the State of Kerala and its officers challenging the order dated 22-05-2019 in TA No.5475/2012 on the file of the Kerala Administrative Tribunal, Ernakulam Bench. The respondent approached this court through WP (C) No.25369/2008 praying inter alia for a writ a certiorari to quash a communication dated 30-07-2008 through which the Additional Director of Collegiate Education found that the respondent was not entitled to senior scale placement with effect from 20-12-1996 and held that he will be entitled to placement only with effect from 20-12-1998 which is the date of declaration of probation in Government service. WP (C) No.25369/2008 was transferred to the Kerala Administrative Tribunal and was re-numbered as TA 5475/2012.
2. The respondent was originally appointed as a Junior Lecturer in an aided college on 03-03-1987. He was promoted as Lecturer on 03- 03-1989 and in accordance with the UGC Regulations was placed as Lecturer Senior Scale on completion of 8 years of service which is evident from the service certificate dated 06-03-1997 which is on record in the Transferred Application as Ext.P1. While working as Lecturer OP (KAT) No.404/2020 -3- Senior Scale the respondent was appointed as Lecturer in the Collegiate Education Service on 20-12-1996 following selection and advice by the Public Service Commission. He was found entitled to the pay of Lecturer-Senior Scale with effect from the date of his appointment which is 20-12-1996. On completion of 12 years of service the respondent was granted further placement as Lecturer Selection Grade with effect from 20-12-2001 as per Ext.P3 proceedings of the Additional Director of Collegiate Education. It was thereafter that Ext.P5 was issued finding that the placement of the respondent in the Senior Scale with effect from 20-12-1996 is improper as the said scale could have been granted only after completion of probation in Government service.
3. On a consideration of the matter the Tribunal noticed that an almost identical issue had been considered by this court in W.P (C) No.19228/2013. Following the ratio of that judgment the Tribunal allowed the Transferred Application and held that the respondent is entitled to placement in the Senior Scale with effect from 20-12-1996 and also found that on his placement in the Selection Grade with effect from 20-12-2001 as per Ext.P3 is also in order.
4. We have heard Senior Government Pleader appearing for the petitioners and Sri. P.C. Sasidharan, learned counsel appearing for the respondent. The learned Senior Government Pleader would contend that OP (KAT) No.404/2020 -4- there was no question of considering the placement of the respondent as a Lecturer Senior Scale with effect from the date prior to declaration of probation in Government service. He would contend that the issue considered by this court in W.P (C) No.19228/2013 is completely different. He would contend that the Tribunal misdirected itself in law in allowing the Transferred Application following the judgment of this court in W.P (C) No.19228/2013. Sri. P.C. Sasidharan, learned counsel appearing for the respondent on the other hand submits with reference to the provisions of the UGC Scheme which is on record as Ext.P4 in the Transferred Application that the scheme does not in any manner provide that declaration of probation is a condition precedent in a situation like this. He would specifically draw our attention to the findings in paragraph 10 of the judgment in W.P (C) No.19228/2013.
5. We have considered the contentions raised by either side. We notice that the Government had issued G.O (P) No.171/1999/H.Edn dated 21-12-1999 concerning the revision of scale of pay of teachers in Universities, Affiliated Colleges, Law Colleges, Engineering Colleges, Kerala Agricultural University and qualified teachers in Physical Education and qualified Librarians etc. It is not in dispute before us that previous service in an aided institution can be counted towards the completion of the prescribed period of residency for placement in the OP (KAT) No.404/2020 -5- higher grade. Clauses enumerated as 7.1. to 7.7 of Ext.P4 Government order leads us to conclude that the counting of past service together with the subsequent Government service did not envisage the discounting of the period of probation in Government service to consider whether the person concerned had completed the specified period of residency. The petitioners have no case that the respondent has attracted any of the disqualifications enumerated in Clauses 7.2 to 7.7 of Ext.P4. The only case of the petitioners is that the respondent had not completed his period of probation and he could not have been placed in the Senior Scale w.e.f a date prior to the declaration of his probation in Government service. We are unable to find any such stipulation in Ext.P4 Government order. We are of the view that if that there was any such embargo it would have found a place in the aforesaid clauses 7.1 to 7.7 which specifically deals with counting of past service. We are also of the view that this court had clearly held in the judgment in W.P (C) No.19228/2013 that the scheme does not provide for a declaration of probation as a prerequisite for placement in the Senior Scale. In paragraph 10 of the judgment in that Writ Petition, this court held as follows: -
".......The scheme does not provide for declaration of probation as a prerequisite for placement under the scheme......"OP (KAT) No.404/2020 -6-
We are in respectful agreement with the view taken by the learned Single Judge in W.P (C) No.19228/2013 to the extent that declaration of probation is not a prerequisite for grant of Senior Scale under Ext.P4. The original petition fails and it is accordingly dismissed. No costs.
(Sd/-) A.M. SHAFFIQUE, JUDGE.
(Sd/-) GOPINATH P., JUDGE.
AMG OP (KAT) No.404/2020 -7- APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE-A1 TRUE COPY OF THE TAX ALONG WITH EXHIBITS EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE MANAGER, PSMO COLLEGE EXHIBIT P2 TRUE COPY OF THE ORDER DATED 15.12.2001 EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED 27.01.2004 EXHIBIT P4 TRUE COPY OF THE G.O(P) NO.171/99/H.EDN DATED 21.12.1999 EXHIBIT P5 TRUE COPY OF PROCEEDINGS DATED 30.07.2008 ANNEXURE A2 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT ANNEXURE A3 TRUE COPY OF THE ORDER OF THE TRANSFER APPLICATION WHICH WAS DISPOSED ON 22.05.2019