Kerala High Court
Dr.Pramod.P.K vs Co-Operative Academy Of Professional ... on 18 March, 2020
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941
WP(C).No.25898 OF 2014(J)
PETITIONER/S:
DR.PRAMOD.P.K.
PURAVARICKAL HOUSE,NAYATHODE P.O,ANGAMALY
683572
BY ADVS.
SRI.S.PRASANTH (AYYAPPANKAVU)
SMT.VARSHA BHASKAR
RESPONDENT/S:
1 CO-OPERATIVE ACADEMY OF PROFESSIONAL EDUCATION
REPRESENTED BY ITS DIRECTOR,CO-OPERATIVE BANK
TOWERS, VIKAS BHAVAN P.O,THIRUVANANTHAPURAM 33
2 THE PRINCIPAL
COLLEGE OF ENGINEERING KIDANGOOR, KIDANGOOR
SOUTH P.O, KOTTAYAM 686 583
R1 BY SRI.V.KRISHNA MENON, SC, CO.OP.ACADEMY OF
PROFESSIONAL EDUCA
R1 BY SRI.M.SASINDRAN, SC, CAPE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 13-01-2020, THE COURT ON 18-03-2020 DELIVERED THE
FOLLOWING:
W.P.(C) No.25898 of 2014
2
JUDGMENT
Dated this the 18th day of March, 2020. The petitioner was appointed as Lecturer in Mathematics in the College of Engineering Kidangoor, under the Management of the first respondent as per Ext.P1 proceedings. The petitioner joined service on 20.07.2010. On 20.11.2010, the petitioner obtained Ph.D Degree. The petitioner's probation was declared with effect from 22.07.2012 and second increment was granted to him from 01.07.2013 onwards. The first respondent implemented revised pay scale as per the AICTE Scheme with effect from 01.01.2011, in terms of Ext.P4 Government Order. According to the petitioner, as per Ext.P4, a teacher acquiring Ph.D Degree while in service is entitled for three increments. Since the petitioner was not granted W.P.(C) No.25898 of 2014 3 the third increment, he submitted Exts.P5 and P6 representations.
2. While so, the petitioner was relieved from service under the first respondent on his securing an appointment as Assistant Professor under the Kerala Agricultural University. On the request of the petitioner, Exts.P7 and P8 orders were issued relieving him of his duties at the first respondent Institution with effect from 11.09.2013. As the request of the petitioner for grant of the third increment was not being acceded to, the writ petition was filed on the premise that the third increment was being denied for reason of the petitioner having participated in the strike organised by the teachers union from 14.03.2012 to 16.03.2012; during which period the petitioner had applied for casual leave.
3. From the counter affidavit filed on behalf W.P.(C) No.25898 of 2014 4 of the first respondent, it was revealed that the reason for denying the third increment to the petitioner was entirely different from what was alleged in the writ petition. According to the first respondent, Rule 24 of the Co-operative Academy of Professional Education (CAPE) Service Rules provides for forfeiture of the service of an employee who chooses to resign from the post. Rule 24 further provides that an employee who has resigned from service shall also forfeit his claim for any arrears in pay and allowances or such other pending payments borne to the academy funds, which would have been sanctioned to him, but for the resignation.
4. On the basis of the contention in the counter affidavit filed by the first respondent, the petitioner amended the writ petition by incorporating a prayer to quash Rule 24 of the W.P.(C) No.25898 of 2014 5 CAPE Service Rules, to the extent it provided for forfeiture of an employee's claim for arrears of pay and allowance and such other pending payments, borne to the academy funds, for reason of that employee having chosen to resign from the service of the first respondent.
5. The learned counsel for the petitioner contended that Rule 24 of the CAPE Service Rules is an unconscionable contract, which is liable to be interfered with. In support of this contention, the learned Counsel for the petitioner relied on the decision of the Honourable Supreme Court in Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly and another [1986 (3) SCC 156].
6. The learned Standing Counsel would contend that as per Rule 24 of the CAPE Service Rules, a member of the service shall, if he/she resigns W.P.(C) No.25898 of 2014 6 his/her appointment forfeit not only the service rendered by him/her in the particular post held by him/her at the time of resignation, but all his/her previous service under the Academy. He/she shall also forfeit his/her claim for any arrear in pay and allowances or such other pending payments, borne to the Academy funds, which would otherwise have been sanctioned to him/her, but for the resignation. It is submitted that the petitioner having joined the service of the first respondent, as per the terms of the CAPE Service Rules, he was bound by the Service Rules and is estopped from challenging the Service Rules. The learned Standing Counsel submits that Rule 24 of the CAPE Service Rules is in pari materia to Rule 29 (a) of Part III of the Kerala Service Rules, which stipulates that resignation of the public service or dismissal or removal from it, entails W.P.(C) No.25898 of 2014 7 forfeiture of past service. It is pointed out that the the constitutional validity of Rule 29
(a) of Part III KSR was considered by a Division Bench of this Court in State of Kerala and others v. E.K Varghese [ILR 2016 1 Ker.325]. The decision in Ranganathan S and others v. Fertilisers and Chemicals Travancore Ltd and others [ILR 2017 (4) Ker.9] is cited in support of the proposition that there is a class distinction between employees who had voluntarily resigned and those who took voluntary retirement or who retired or who died in harness, and that denial of benefits to employees who had resigned cannot be termed arbitrary.
7. From the rival contentions, the short question that arises for consideration is as to whether, the challenge against the constitutional validity of Rule 24 of the CAPE Service Rules is sustainable or not. The ancillary question which W.P.(C) No.25898 of 2014 8 would arise is as to whether the classification of the employees who had resigned from service, differently, from those who had retired from service, is reasonable or not. It is precisely this question that was considered by the Division Bench in E.K Varghese and Ranganathan S.
8. In E.K Varghese, a teacher in an unaided school, who had resigned from service for better prospects was denied pension. The rejection of his request for pension was on the ground that as per Rule 29 (a) of Part III KSR, a person resigning from service will have to forfeit his past service. The writ petition was filed with the prayer to declare Rule 29 (a) of Part III KSR as unconstitutional and also to quash the orders rejecting his claim for pension. The only ground on which the Rule was challenged was that it violates Article 14 of the Constitution of India, W.P.(C) No.25898 of 2014 9 inasmuch as, a person who has resigned from service after long and unblemished service cannot be equated with persons who are dismissed from service or removed from service for misconducts committed while in service. The Division Bench repelled the challenge, placing reliance on the earlier decision in Chandrasenan v. State of Kerala (ILR 2001 Ker. 589). The Bench also noticed that a similar provision was incorporated in the Central Civil Service Pension Rules vide Rule 26 which stipulates that resignation from a service or post entails forfeiture of past service and that the rule was considered by the Supreme Court in Union of India and others v. Rajenandan Singh [(2005) 8 SCC 325] and the order denying pension to a person who resigned from service was upheld by the Apex Court. Reference was also made to decisions rendered by the Apex Court with W.P.(C) No.25898 of 2014 10 reference to similar provisions in other enactments. Acknowledging the power vested with the Government to frame Rules, providing for the service of any class of employees serving under the Government, the claim was declined.
9. In Ranganathan, the challenge was based on a decision of the management to enhance and/or revise remunerations for its employees, including the managerial staff. The decision having been taken on 14.8.2010, to be effective from 1.1.2007, it was decided to extend the benefit of the judgment to employees who were working as on the date of the order, who had died in harness and those who had voluntarily retired between 2007 and 2010, except those employees who had resigned during the said period. In support of the challenge, reference was made to Section 4 of the Payment of Gratuity Act 1972, as per which an W.P.(C) No.25898 of 2014 11 employee upon retirement, resignation, removal, dismissal, is entitled to gratuity. It was contended that though the Payment of Gratuity Act treats all the employees as one class, irrespective of whether the employee had retired, resigned, dismissed or had been removed, when the gratuity payable was enhanced, the management decided to extend this benefit to other employees, leaving out the appellants, who had resigned during the particular period. It was contended that such action on the part of the management was discriminatory. Repelling the challenge, the Division Bench, at paragraph 9 of the judgment, held as follows:-
"9. The first thing we have to note is that so far as the appellants are concerned, they had themselves voluntarily left the company and went elsewhere. They were not compelled by the company or the service rules to go. They chose to resign. When the wage revision, either pursuant to the decision of the Central Government or the trade union agreement, being extended to the managerial W.P.(C) No.25898 of 2014 12 staff came into being, they had no association with the company. But so far as others are concerned, though they may be dead or superannuated or voluntarily retired, their association in the jural form continues, for they were to continue getting benefits, which the appellants were not entitled to. Therefore, conferring the benefit of wage revision to such employees cannot either be arbitrary or discriminatory in any manner. We may also note that S.4 of the Act only classifies the classes of employees who would be entitled to gratuity and nothing more. Merely because they are clubbed together cannot mean that for all purposes they must be treated as belonging to the same class. Art.14, which is right against discrimination, contemplates that no unequal must be treated equally and equals treated unequally. This principle does not apply to the fact situation of the present case as we have pointed out that there is a class distinction between employees who had voluntarily resigned and people who took voluntary retirement or who retired or who died in harness. Thus, being different classes, if the management decided to treat them differently, no grievance can be raised."
10. The learned Counsel has placed reliance on the decision in Brojo Nath Ganguly to contend that Rule 24 amounts to an unconscionable contract and is hence invalid. The short facts in Brojo Nath Ganguly is that the Central Inland Water Transport W.P.(C) No.25898 of 2014 13 Corporation Limited, a Government Company, had absorbed the employees of another Company named Rivers Steam Navigation Company Limited on dissolution of the later. Brojo Nath Ganguly was one among the employees thus absorbed. Later, the Central Inland Water Transport corporation Limited framed its Service Rules. Clause 9 of the Rules provided for termination of employment for acts other than misdemeanour. As per Rule 9(i), the employment of a permanent employee was subject to termination on three months notice on either side. Brojo Nath Ganguly, while working as Manager (Finance) was issued with a notice calling upon him to answer a charge an allegation of negligence in the maintenance of Provident Fund Accounts. Though Ganguly submitted an explanation, he was served with a notice terminating his service by exercising the power under Rule 9(i). The W.P.(C) No.25898 of 2014 14 termination was challenged mainly on the ground that Rule 9(i) was unconscionable. The Apex Court found that Rule 9(i) confers upon the Corporation unbridled power to terminate the service of a permanent employee without assigning any reason. It is in that context that the Honourable Supreme Court held Rule 9 (i) to be a Henry VIII Clause, ie, a provision occasionally found in legislation conferring delegated legislative power, giving the delegate the power to amend the delegating act in order to bring that act into full operation or otherwise by order to remove any difficulty and at times giving power to modify the provisions of the other acts also. Finding that Rule 9(i) confers absolute and arbitrary power on the Corporation without any guidelines to indicate in what circumstances the power is to be exercised by the Corporation, without even providing an opportunity W.P.(C) No.25898 of 2014 15 of hearing to the permanent employee whose service is being terminated in exercise of the power, Rule 9 (i) was held to be unconstitutional.
11. The factual circumstances in the instant case is entirely different. The Service Rules of the first respondent was in existence when the petitioner joined the organisation. There was no compulsion on the petitioner to resign from the service of the first respondent. Had the petitioner continued in service and superannuated, he would have definitely been entitled for the third increment. Having given up the claim and having resigned from the first respondent, the petitioner cannot turn around and demand that he should be granted the third increment on the strength of the Ph.D Degree which he had acquired.
12. The decision in Brojo Nath Ganguly does not have any application as far as the W.P.(C) No.25898 of 2014 16 petitioner's case is concerned and there is no reason to hold Rule 24 to be unconstitutional. I am supported in this view by the decisions in E.K Varghese and Ranganathan S and I find no reason to direct the first respondent to grant the petitioner three increments on his being awarded Ph.D Degree and to grant him the arrears from the new date along with interest.
In the result, the writ petition is dismissed. No order as to costs.
Sd/-
V.G.ARUN JUDGE Scl/18.03 W.P.(C) No.25898 of 2014 17 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS NO E1-4732/2010/CAPE 2220 DATED 22-06- 2010 EXHIBIT P2 EXHIBIT P2 TRUE COPY OF THE PHD CERTIFICATE AWARDED TO THE PETITIONER BY THE COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY EXHIBIT P3 EXHIBIT P3 TRUE COPY OF ORDER NO E1- 5557/2012/CAPE/447G DATED 18-10-2012 ISSUED BY THE 1ST RESPONDENT EXHIBIT P4 EXHIBIT P4 TRUE COPY OF G.O)P) 389/10/H.EDN DATED 07-12-2010 ISSUED BY THE SECRTARY TO GOVERNMENT HIGHER EDUVCATION(G) DEPARTMENT,GOVERNMENT OF KERALA EXHIBIT P5 EXHIBIT P5 TRUE COPY OF REPRESENTATION DATED 13-12-2010 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT EXHIBIT P6 EXHIBIT P6 TRUE COPY OF REPRESENTATION DATED 05-11-2012 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT EXHIBIT P7 EXHIBIT P7 TRUE COPY OF ORDER NO E-
14981/2013/CAPE DATED 10-09-2013 ISSUED BY THE 1ST RESPONDENT EXHIBIT P8 EXHIBIT P8 TRUE COPY OF ORDER NO E-
218/08 DATED 11-09-2013 ISSUED BY THE 2ND RESPONDENT EXHIBIT P9 EXHIBIT P9 TRUE COPY OF THE APPLICATION W.P.(C) No.25898 of 2014 18 UNDER THE RIGHT TO INFORMATION ACT DATED 28-04-2014 SUBMITTED BY SRI P.S KRISHNAN NAIR EXHIBIT P10 EXHIBIT P10 TRUE COPY OF THE LETTER NO 2405/G1/2014/CAPE/2072 DATED 06-06-2014 SENT BY PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT IN RESPONSE TO EXT P9 APPLICATION EXHIBIT P11 EXHIBIT P11 TRUE COPY OF ORDER NO E1- 318(1)/2011/CAPE/1532 DATED 30-04-2011 ISSUED BY THE 1ST RESPONDENT EXHIBIT P12 EXHIBIT P12 TRUE COPY OF THE RELEVANT PAGE OF THE ATTENDANCE REGISTER FPOR THE MONTH OF MARCH 2012 EXHIBIT P13 EXHIBIT P13 TRUE COPPY OF THE APPLICATION FOR CASUAL LEAVE SUBMITTED BY THE PETITIONER EXHIBIT P14 EXHIBIT P14 TRUE COPY OF THE LETTER NO E1-4981/2013/CAPE/222 DATED 15-01-2014 A;LONG SENT BY THE 1ST RESPONDENT ALONG WITHJ THE SERVICE CERTIFICATE EXHIBIT P15 EXHIBIT P15 TRUE COPY OF LETTER NO E-
5.14/12/351 DATED 06-06-2014 SENT BY THE PUBLIC INFORMATION OFFICER OF COLLEGE OF ENGINERING,KIDANGOOR EXHIBIT P16 EXHIBIT P16 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT DATED 6-07- 2009 IN WPC NO 18466/2007 W.P.(C) No.25898 of 2014 19 W.P.(C) No.25898 of 2014 20