Kerala High Court
Dr.Jee G vs State Of Kerala
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940
WP(C).No. 27017 of 2017
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PETITIONER(S):
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1 DR.JEE G, AGED 51 YEARS,
S/O K.S. GOPAKUMARAN NAIR,
"LAKSHMI" (H), KIDANGOOR P.O,
VENGOOR, ANGAMALY, ERNAKULAM - 683572.
2 SRI.SUNI K.P,
AGED 42 YEARS, S/O LATE K P PAPPU,
KALLUNGAL (H), MATTOOR, KALADY,
ERNAKULAM - 683574.
3 SRI.PRASAD S.
S/O V.K. SEKHARAN NAIR, AGED 43 YEARS,
DEVIKRIPA(H), KIDANGOOR PO,
ANGAMALY, ERNAKULAM - 683572.
BY ADVS.SRI.LIJU.V.STEPHEN
SMT.INDU SUSAN JACOB
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY,
HIGHER EDUCATION DEPARTMENT,
THIRUVANANTHAPURAM-695001.
2. THE SECRETARY,
DEPARTMENT OF COLLEGIATE EDUCATION,
6TH FLOOR, VIKAS BHAVAN, PALAYAM,
THIRUVANANTHAPURAM, KERALA - 695033.
3. MAHATMA GANDHI UNIVERSITY,
REPRESENTED BY ITS REGISTRAR,
MAHATMA GANDHI UNIVERSITY,
PRIYADARSHINI HILLS PO,
ATHIRAMPUZHA, KOTTAYAM - 686 662.
4. SREE SANKARA COLLEGE,
MANAGEMENT, KALADY - 683572,
REPRESENTED BY ITS MANAGING DIRECTOR.
WP(C).No. 27017 of 2017 (B)
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5. THE PRINCIPAL
SREE SANKARA COLLEGE,
KALADY - 683572.
*ADDL. R6 IMPLEADED
6. THE UNIVERSITY GRANTS COMMISSION(UGC),
BAHADUR SHAH ZAFAR MARG, NEW DELHI - 110 002,
REPRESENTED BY ITS SECRETARY.
ADDL. R6 IS IMPLEADED AS PER ORDER
DATED 25.08.2017 IN IA.13695/2017.
R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI.P.M. MANOJ
R3 BY SRI.ASOK M. CHERIAN, SC
R4 & R5 BY ADVS. SRI.M.N.RADHAKRISHNA MENON
SRI.JOSEPH SEBASTIAN (PARACKAL)
ADDL. R6 BY SRI.S.KRISHNAMOORTHY, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05-03-2018 ALONG WITH WPC.28185/2017 & WPC.41548/2017,
THE COURT ON 11-04-2018 DELIVERED THE FOLLOWING:
mbr/
WP(C).No. 27017 of 2017 (B)
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APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE RELEVANT PAGES OF APPENDIX III
OF THE ABOVE UGC REGULATION, 2010.
EXHIBIT P2 A TRUE COPY OF THE NOTIFICATION NO.AC.L/1/2017
DATED 23/2/2017 ISSUED BY THE RESPONDENT
UNIVERSITY.
EXHIBIT P3 A TRUE COPY OF THE PBAS PROFORMA FOR
PROMOTION ISSUED BY THE RESPONDENT UNIVERSITY.
EXHIBIT P4 A TRUE COPY OF THE CIRCULAR DATED 29/6/2017
ISSUED BY THE RESPONDENT UNIVERSITY.
EXHIBIT P5 A TRUE COPY OF THE CIRCULAR DATED 15/7/2017
ISSUED BY 4TH RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE G.O(P) NO.23/2016/HEON
DATED 15/12/2016 ISSUED BY 1ST RESPONDENT.
RESPONDENTS' EXHIBITS:
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EXHIBIT R2A: TRUE COPY OF THE GO(P)NO.58/2010/H.EDN.
DATED 27.3.2010.
EXHIBIT R2B: TRUE COPY OF THE GO(P0NO.392/2010/H.EDN.
DATED 10.12.2010.
/TRUE COPY/
P.S.TO JUDGE
mbr/
12.04.2018.
ANU SIVARAMAN, J.
= = = = = = = = = = = = = = =
W.P.(C).Nos.27017, 28185
& 41548 of 2017
= = = = = = = = = = = = = = =
Dated this the 11th day of April, 2018
JUDGMENT
1. Petitioners in these writ petitions are Assistant Professors in aided colleges affiliated to the Mahatma Gandhi University. They challenge the orders issued by the University to the extent the API score based Performance Based Appraisal System for career advancement of teachers is made applicable retrospectively from 18.9.2010. The amendment issued by the Mahatma Gandhi University on 23.2.2017 and order dated 29.6.2017 are also under challenge. It is the contention of the petitioners that the API score based Performance based Appraisal System for Career Advancement had been provided for in the 2010 UGC Regulations. However, the Regulations specifically provided that the Universities have to either adopt the criteria as provided in the Regulations or notify the same with suitable modifications to make the same applicable. It is stated that without issuing any such notification, the University has taken steps for operating the Performance W.P.(C).No.27017/17 & con.cases 2 based Appraisal System with retrospective effect from 18.9.2010 by Ext.P2. It is contended that no objective periodical recording of performance had been made either by the colleges or by the University and therefore the requirement directing the petitioners to make available the API scores for evaluation for the purpose of granting them promotion is completely unsustainable and that the petitioners are entitled to promotions on the basis of the completed years of service alone as was done before the Regulations were brought into force.
2. The learned counsel for the petitioners relies on decisions of Apex Court in Govind Das and others v. The Income Tax Officer and another [(1976) 1 SCC 906[, State of Rajasthan v. Basant Agrotech (India) Ltd.
3. A detailed counter affidavit has been filed by the University wherein it is contended that the UGC Scheme had been approved by the Government w.e.f. 18.9.2010 and the petitioners are claiming the benefits of higher pay scale and W.P.(C).No.27017/17 & con.cases 3 emoluments on the basis of the Scheme. It is contended that the University had adopted the Scheme and notified the requirements of the Scheme by University letter dated 1.8.2011 and Exhibit P2 is only an amendment to the same. It is therefore contended that the norms for preparation of API score is introduced for the first time with retrospective effect from 18.9.2010 is factually incorrect. It is stated that the Scheme had been notified as early as on 1.8.2011 and Ext.P2 only changes its date of application from 31.8.2008 to 18.9.2010. It is further contended that a Full Bench of this Court has held that all the provisions of the UGC Regulations are applicable to all Universities, Colleges and teachers who are covered by such Regulations without any specific adoption of the same by the University concerned and that therefore the contentions raised is completely untenable.
4. Heard the learned counsel for the petitioners, learned standing counsel for the University, the learned counsel appearing for the College Managements.
W.P.(C).No.27017/17 & con.cases 4
5. It is clear that the UGC Regulations have been accepted by the Government of Kerala with effect from 18.9.2010. The petitioners would therefore be entitled to the higher pay scales and service conditions as is provided in the Regulations. They therefore have to comply with the requirements of the Regulations for the purpose of promotions under Career Advancement Scheme as well. The petitioners cannot contend that they are entitled to the benefits but are not bound to comply with the conditions for the grant of such benefits. It is clear from Ext.P2 itself that the Scheme for Career Advancement Promotions had been notified by the University on 1.8.2011 and Exhibit P2 is only an order issued in amendment of the Schemes so notified. The contention that Exhibit P2 amounts to a retrospective notification of the requirements of the Scheme is therefore completely untenable. The date of effect of the Career advancement Scheme by employing the Performance Based Appraisal Scheme has been changed from 31.8.2008 to 18.9.2010, that is the date from which UGC Scheme had been approved by the government of Kerala.
W.P.(C).No.27017/17 & con.cases 5
6. I find no illegality or irregularity in requiring the implementation of the UGC Scheme with effect from the date of its acceptance by the State Government. The decisions relied on by the learned counsel for the petitioner to contend that retrospective operation of a provision which creates new obligations or affects existing rights unless specifically empowered by law have no application in the instant case. Ext.P3 would show that what was sought to be recorded is only the requirements as has been provided in the Scheme and the contention of the petitioner that it is impossible to record the data as provided in the proforma is completely untenable, in view of the fact that the petitioners were duty bound to maintain records and submit annual performance reports in terms of the scheme.
7. The challenge against Exhibits P2 and P4 therefore fail. These writ petitions are accordingly dismissed. It is made clear that in case the petitioners have not submitted the proforma for Performance Based Appraisal Scheme for promotion, they will W.P.(C).No.27017/17 & con.cases 6 be granted one month time from the date of receipt of a copy of this judgment to submit the same and their claims for promotion shall also be considered in accordance with law.
sd/-
Anu Sivaraman, Judge sj