Kerala High Court
Dr.Shibu A.V vs State Of Kerala on 5 October, 2021
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
WP(C) NO. 23310 OF 2020
PETITIONER:
DR.SHIBU A.V
AGED 50 YEARS
S/O.VALSALAN A.K., ASSISTANT PROFESSOR,
SCHOOL OF INDUSTRIAL FISHERIES,
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
RESIDING AT 40/2461, ARKKAKADAVIL HOUSE,
KALAVATH ROAD, PIPELINE JUNCTION, PALARIVATTOM P.O.,
KOCHI-682025.
BY ADVS.
SUMATHY DANDAPANI (SR.)
SRI.MILLU DANDAPANI
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,
COCHIN UNIVERSITY PO, KALAMASSERY, KOCHI-682022,
REPRESENTED BY ITS REGISTRAR.
BY ADV SRI.VIPIN D.G., SC, COCHIN UNIVERSITY OF
SCIENCE AND TECHNOLOGY
GP SRI JIMMY GEORGE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 23310 OF 2020
-2-
JUDGMENT
Ext.P13, an order dated 14.07.2020 issued by Cochin University of Science and Technology (hereinafter called CUSAT) rejecting the case of the petitioner for promotion to the stage 3 Assistant Professor has been assailed in the present writ petition.
2. On 15.02.2008, petitioner joined Central Institute of Fisheries Nautical and Engineering Training (hereinafter called CIFNET) in the pre- revised scale of Rs.8000-275/13,500 (at par with University lecturer in Pre-revised scale), which was subsequently revised to Rs.15,600-39,100 with grade pay of Rs.5,400/- as per the recommendation of 6th Pay Commission, to serve the aforementioned institution upto 06.08.2015. In all rendered a period of 7 years, 5 months and 23 days of service as evident from Experience Certificate Ext.P1.
3. On 12.06.2013, respondent CUSAT published WP(C) NO. 23310 OF 2020 -3- a notification in the newspaper inviting application for filling up the post of Assistant Professor in the School of Industrial Fisheries against one vacancy reserved for ETB (Ezhava/ Theeya/Billava) as evident from Ext.P2.
4. Petitioner submitted an application and after undergoing the process of selection vide memo dated 25.06.2015, Registrar of the 2nd respondent informed of having been selected to the post of Assistant Professor of International Marketing and Trade in School of Industrial Fisheries. Petitioner reported on 07.08.2015 as there was some delay in relieving the petitioner from CIFNET, for which had to approach Central Administrative Tribunal.
5. After having joined the petitioner submitted a representation to the 2nd respondent through proper channel for reckoning the previous service for the purpose of Career Advancement Scheme (CAS) under the UGC scheme in the school of Industrial Fisheries of the 2nd respondent. It was WP(C) NO. 23310 OF 2020 -4- brought that the petitioner had rendered 7 years, 5 months and 23 days of service and which is permissible as per Clause 10 of the UGC Regulations, 2010.
6. As per order dated 04.10.2016, probation of the petitioner in the post Assistant Professor has been completed satisfactorily as on 07.08.2016.
7. Since no action was taken on the previous representation, another representation dated 01.02.2017 was submitted to the 2nd respondent for reckoning the previous period. Reference of one Dr.Ajay kumar P, having conferred with the same benefit of reckoning the previous service, was also given.
8. Vide Ext.P11 dated 27.02.2018, the request of the petitioner was considered and was given the benefit of previous service with effect from 07.08.2015 only. In essence the previous service rendered at the CIFNET from 15.02.2008 to 06.08.2015 was reckoned for the purpose of Career WP(C) NO. 23310 OF 2020 -5- Advancement Scheme under UGC Regulations.
8. Learned counsel for the petitioner submitted that the Clauses 6.4.2 , 6.4.5 and 6.4.6 of the UGC Regulations 2010 prescribes the qualifications and procedure for promotion from Stage 1 to stage 2 and stage 3 of the Assistant Professor. Since vide Ext.P11 petitioner was granted stage 2 promotion, was eligible for stage 3 promotion as the entire period the one referred to above rendered in CIFNET has not been considered. In this regard attention of this Court has been brought to the aforementioned clauses, which has also been relied upon by the counsel for the CUSAT.
9. Vide Ext.P13, respondents without looking into the submissions and the fact that vide Ext.P12 order dated 03.01.2020 one Dr.Deepti Das Krishna, who had also rendered service as Assistant Professor in the Department of Electronics, CUSAT and Department of ECE, Rajagiri School of WP(C) NO. 23310 OF 2020 -6- Engineering & Technology, was given the benefit of previous service and was promoted to the post of Assistant Professor stage 3. But despite that the case of the petitioner for placement Assistant Professor (stage 3) has erroneously been rejected vide communication dated 14.07.2020, Ext.P13, which gave cause of action to approach this Court. However as a counterblast, the respondents during the pendency of the writ petition passed order Ext.P14, sought to be placed on record by way of I.A.No.1 of 2021 and I.A.No.2 of 2021, calling upon the petitioner as to why the CAS promotion as Assistant Professor stage 2 may not be withdrawn. This is misuse of the powers which is not permissible in the eyes of law.
11. The respondents failed to rebut the contents of Ext.P12 whereby the similar benefit has been granted to one Dr.Deepti Das Krishna. In fact as per the averments in paragraph 15 of the writ petition, the petitioner by taking the period spent WP(C) NO. 23310 OF 2020 -7- in CIFNET, i.e. 7 years, 5 months and 23 days, had completed 5 years of period required for stage 3 on 15.02.2017 and by the time the alleged meeting of the syndicate was taken on 03.02.2020, petitioner had further progressed by putting another 2 years, 6 months and 7 days, that is, the total service of 9 years, 11 months and 18 days instead of 5 years. Thus the petitioner was fully eligible for being promoted under CAS (Assistant Professor stage 3) as per the provisions of Clause 6.4.6 as explained in Appendix III of UGC Regulations, 2010.
12. Per contra Adv.D.G.Vipin, learned counsel appearing on behalf of respondent No.2 countered the arguments by relying upon the very same Clauses as has been submitted by learned counsel for the petitioner regarding Clauses 6.4.2, 6.4.5 and 6.4.6 and submitted that, the petitioner had not rendered the period of service as prescribed in the aforementioned regulations for being promoted to the stage 3 and also did not deny the issuance of WP(C) NO. 23310 OF 2020 -8- Ext.P14 notice, whereby the explanation of the petitioner for withdrawing the promotion from stage 2 has been sought. It was further contented that as far as the prior service put in by Dr.Ajay Kumar P., Assistant Professor, Department of Marine Geology and Geophysics under the Ministry of Water Resources and Mines, Government of India, during the period of 09.07.2003 to 11.02.2015 i.e. prior to joining of CUSAT as qualifying pensionary benefit, the matter was placed before the syndicate wherein syndicate resolved to ratify the action taken by the Vice Chancellor in reckoning the prior service of Dr.Ajayakumar, but only for UGC Career Advancement Placements in the University. That is not for pensionary benefits. For that the matter is still pending consideration.
13. The scale of pay of the post of Senior Instructor in CIFNET was revised to 15,600-39,100 with Grade Pay of 5,400 as per the recommendation of the 6th pay commission, but no assessment was WP(C) NO. 23310 OF 2020 -9- made at CIFNET during the entire period of service, thus, the prior service rendered by the petitioner as Senior Instructor at CIFNET of 7 years, 5 months and 23 days, was reckoned for UGC Career Advancement Placements in the University vide order dated 19.07.2017 considering Clause 10.1 of UGC Regulations, 2010.
14. In paragraph E of the statement, department fortified the decision of promotion of petitioner by placing him an Assistant Professor (stage 2) with effect from 07.08.2015 and prayed for dismissal of the writ petition.
15. I have heard counsel for the parties and appraised the paperbook.
16. For resolving the controversy it would be axiomatic to extract Clauses 6.4.2, 6.4.5 and 6.4.6, Appendix III Table III of UGC Regulations 2010, which read thus:-
"i)Clause 6.4.2 An entry level Assistant Professor, possessing Ph.D Degree in the relevant discipline shall be eligible, for moving to the next higher grade (stage 2) WP(C) NO. 23310 OF 2020 -10- after completion of four years service as Assistant Professor.
ii) Clause 6.4.5 The upward movement from the entry level grade (stage 1) to the next higher grade (stage 2) for all Assistant Professors shall be subject to their satisfying the API based PBAS conditions laid down by the UGC in this Regulation.
iii) Clause 6.4.6 Assistant Professors, who have completed five years of service in the second grade (stage 2), shall be eligible, subject to meeting the API based PBAS requirements laid down by these Regulations, to move up to next higher grade (stage 3)
iv) As per Appedix III, Table III of UGC Regulations 2010:-
Promotion Service Requirement Minimum Academic Performance of Teachers Requirements and through Screening/Selection Criteria CAS Assistant Assistant Professor in I)Minimum API scores using PBAS Professor/e stage 1 and completed scoring Proforma developed by the quivalent four years of service concerned university as per the norms cadres from with Ph.D or five provided in Table II(A)/II(B) of stage 1 to years of service who Appendix III stage 2 are with M.Phil/PG Degree in professional ii) One Orientation and one Courses such as Refresher/Research Methodology LL.M, M.Tech, Course of 2/3 weeks duration.
M.C.Sc, M.D., or six
years of service who Iii) Screening cum verification
are without process for recommending promotion
Ph.D/M.Phil/PG
Degree in
Professional Courses
WP(C) NO. 23310 OF 2020
-11-
Assistant Assistant Professor (I) Minimum API scores using the
Professor/e with completed PBAS scoring proforma developed by
quivalent service of five years the concerned university as per the
cadres from in stage 2 norms provided in Table II (A)/II (B)
stage 2 to of Appendix III
stage 3
ii) One course/programme from
among the categories of refresher courses, methodology, workshops, training, teaching-learning -evaluation Technology Programmes, Soft Skills development Programmes and Faculty Development Programmes of 2/3 week duration.
Iii) Screening cum verification process for recommending promotion
17. Before going through the provisions of the aforementioned, it is evident that for claiming promotion under the CAS as Assistant Professor Stage 1 to stage 2, an assistant professor ought to have completed 4 year service with Ph.D or five years of service with M.Phil/PG Degree in Professional courses mentioned therein. It is a conceded position on record that the petitioner's previous service had already been reckoned, wherein he had served as 7 years, 5 months and 23 days.
Thus, vide Ext.P11, was promoted at stage 2, but WP(C) NO. 23310 OF 2020 -12- infact the respondents ought to have taken into consideration the provisions of Clause 6.4.6 of UGC Regulation, which states for promotion from stage 2 to stage 3 requiring a service of five years with minimum API scores using PBAS scoring proforma developed by the concerned university. In the first blush by looking at the provisions of Clause 6.4.6, petitioner could not fulfill such requirement as prescribed in the Appendix III, but in support of the contention as referred to above, relied upon through order Ext.P12 dated 03.01.2020, whereby one Dr. Deepti Das Krishna has been given the benefit of past service and promotion as Assistant Professor Stage 3 has force. The relevant portion of the order reads thus:-
"Read:-1) U.O.No.Ad.D2/Asst.Prof./2018 (c) dated 23.04.2018
2) U.P.No.Ad.D2/DCS/MSN/Asso.Prof./2016 dated 20.09.2019.
3) Request dated 26.09.2019 submitted by Dr.Deepti Das Krishna, Assistant Professor, Department of Electronics.
4) Letter No.RSET/AO/T/02/19 dated 07.11.2019 from the Principal, Rajagiri School of Engineering & Technology.
5) Clause 10.1 of the UGC Regulations 2010 WP(C) NO. 23310 OF 2020 -13-
6) U.O.No.Ad.F2/7348/CAS CELL/2014-15 dated 19.08.2016.
ORDER Dr.Deepti Das Krishna joined University Service as Assistant Professor in the Department of Electronics on 28.03.2018 FN, vide U.O.referred as (1) above. She was inducted into UGC Scheme with effect from the date of her joining CUSAT Service, i.e., 28.03.2018 FN, vide U.O. Referred as (2) above.
Dr.Deepti Das Krishna, vide letter read as paper(3) above has requested to reckon the following prior service rendered by her for Career Advancement Placement under UGC Regulations.
Sl. Name of the Designati Period of Duration
No. Institute on service
rendered
1 Department of Lecturer 03.11.2008 3 years,
Electronics, (on to 1 month
CUSAT Contract) 14.12.2011 & 12
days
2 Department of Associate 15.12.2011 6 years,
ECE, Rajagiri Professor to 3 months
School of & 27.03.2018 & 13
Engineering & Professor days
Technology (Regular)
The Principal, Rajagiri School of Engineering & Technology, vide paper read as (4) above has informed that Dr.Deepti Das Krishna was appointed as Associate Professor in that institute under the scale of pay of 37400-67000 with AGP 9000/- with effect from 15.11.2011 as per the AICTE Norm and that she was placed as Professor under the scale of pay of 37400-67000 with AGP 10000/- on 01.07.2016 as per the AICTE WP(C) NO. 23310 OF 2020 -14- Norm.
Considering the above, sanction has been accorded by the Vice-Chancellor to the following:-
1. Reckoning the prior service rendered by Dr.Deepti Das Krishna, Assistant Professor,Department of Electronics as detailed below for Career Advancement placements as Assistant Professor (stage 2) and Assistant Professor (Stage 3) in accordance with the provisions contained in Clause 10.1 of the UGC Regulations 2010:-
Sl Name of the Designati Period of Duration to be No Institute on service reckoned for CAS rendered placements under UGC Regulations 2010 1 Department of Lecturer 03.11.2008 Limited to 3 Electronics, (on to years in CUSAT Contract) 14.12.2011 accordance with the provisions contained in U.O.read as paper (6) above 2 Department of Associate 15.12.2011 6 years, 3 ECE, Rajagiri Professor to months & 13 days School of & 27.03.2018 Engineering & Professor Technology (Regular)
2. Notionally placing Dr.Deepti Das Krishna, Assistant Professor, Department of Electronics as Assistant Professor (Stage 2) in the scale of pay of 15,600-39100 with AGP 7000/-
with effect from the date of her joining CUSAT Service, I.e.28.03.2018 and placing her as Assistant Professor (Stage 3) in the scale of pay of 15600-39100 with AGP 8,000/- with effect from the date of her joining CUSAT Service, i.e., 28.03.2018, by counting the prior service WP(C) NO. 23310 OF 2020 -15- reckoned above.
The Finance Section shall fix the pay of the teacher after observing necessary rules in this regard.
Orders are issued accordingly."
18. The order does not reflect that Dr.Deepti had also API and PBAS qualifications as per Appendix III. The relevant portion of Ext.P13, the impugned order dated 14.07.2020 is extracted hereinbelow:-
"Sub:- Request for Career Advancement Placement from Assistant Professor(Stage2) to (Stage 3) by counting prior service rendered at CIFNET
-Resolution of the Syndicate - Communication of
- Reg.
Ref:- 1) File Adalath No. 150 of Dr. Shibu A.V., Assistant Professor, School of industrial Fisheries
2) Short Minutes on Agenda Item No. 675.21 of the meeting of the Syndicate held on 07.05.2020
3) Minutes of the meeting of the Committee constituted by the Syndicate to study the matter of considering the prior service rendered by Dr. Shibu A.V. at CIFNET for CAS Placements held on 03.02.2020.With reference to the complaint No. 150
filed by you at the File Adalat called for by the Hon.Minister of Higher Education in this University on 25.02.2019, I am directed to inform you the following:-
The Syndicate at its meeting held on 22.06.2019, constituted a Committee to study the matter of considering the prior service rendered WP(C) NO. 23310 OF 2020 -16- by you at CIFNET for CAS placement as Assistant Professor (Stage 3), with Dr. P.G Sankaran, Pro-
Vice-Chancellor, Dr. Poornima Narayanan, Convenor,Staff&Establishment Committee and Dr. Rosamma Philip Dean, Faculty of Marine Sciences as members.
The Committee at its meeting held on 03.02.2020 considered the matter along with the provisions contained in the UGC Regulations 2010 and opined that the request of Dr. Shibu AV. for placement as Assistant Professor (Stage 3) by counting the prior service rendered by him at CIFNET cannot be considered favourably as the provisions contained in the UGC Regulations 2010 does not permit the same and also owing to the fact that the teacher does not satisfy the Minimum Academic Requirements for placement as Assistant Professor (Stage 3).
The syndicate at its meeting held on 07.05.2020, considered the matter along with the recommendations of the Standing Committee of the Syndicate on Staff and Establishment, Finance and Purchase and Academic matters and resolved vide agenda item No.675.21 to approve the minutes of committee."
19. Even in order passed after Ext.P12 dated 03.01.2020, respondents did not consider the aforementioned factum of giving the benefit to Dr.Deepti Krishna. In service jurisprudence respondents cannot cause discrimination as it is a clear cut violation of Article not only 14 but 16 of the Constitution of India.
20. I am of the view that the order Ext.P13 extracted above, do not satisfy the requirement of WP(C) NO. 23310 OF 2020 -17- reasons much less cogent reasons as the respondents cannot be permitted to adopt pick and choose policy in conferring benefit to one and refuse to few. The travesty of justice is evident on going through the contents of Ext.P14, as same vide separate order has been taken on record subject to all exceptions, whereby respondents have now chosen even to put show cause notice to the petitioner for withdrawing the promotion from stage 2. Contents of Ext.P14 reads as under:-
"The joint Director, Kerala State Audit Department has objected to the placements as Assistant Professor (Stage 2) granted to teachers of the University with effect from the date of their entry into CUSAT Service, by counting the prior service rendered by them, without assessing the API based PBAS criteria mentioned at 6.4.5 of UGC Regulations 2010.
Considering the above, the Vice Chancellor has ordered to form a scrutiny committee to assess the API based PBAS criteria of the teachers who have been granted placement as Assistant Professor (Stage 2) under CAS of UGC Regulations 2010/AICTE Scheme s2006, with effect from the date of their entry into CUSAT Service, by counting the prior service rendered by them and without any assessment in accordance with the provisions contained in the UGC Regulations 2010/AICTE Scheme 2006.
I am, therefore, to request you to submit the application in the API based PBAS Format for assessing your eligibility for placement as Assistant Professor (Stage 2) in accordance with WP(C) NO. 23310 OF 2020 -18- the provisions contained in the UGC Regulations 2010, to the undersigned within 30 days from the date of this letter."
21. The issuance of Ext.P14 reflects not only an exercise of unbridled power at the helm of affairs but also arm twisting practice, which cannot go unnoticed or escaped from the judicial scrutiny of this Court while exercising power of judicial review. The tenor and mode of reply placed on record is conspicuously silent with regard to the conferring of benefit to one Dr.Deepti Krishna as per Ext.P12.
For the reason aforementioned, I am of the view that the impugned order Ext.P13 cannot withstand the test of reasonability much less sustainability as it suffers from illegality and felicity. Accordingly, it is quashed. Subsequent order Ext.P14, which is also taken on record during the pendency of this writ petition is also quashed. Writ petition is allowed. Respondents are directed to take up the case of the petitioner for WP(C) NO. 23310 OF 2020 -19- conferring the benefit of Assistant Professor stage 3 in tandem with the order passed in favour of Dr.Deepti Krishna, Ext.P13. Let this exercise be undertaken within a period of two months from the date of receipt of a copy of this judgment. The observation aforementioned of mine are only taken into consideration as per the provisions of Article 16 of the Constitution of India. It is still a mystery that Dr.Deepti Krishna fulfilled the condition/criteria as prescribed for promotion from stage 2 to stage 3 in Appendix III table III of UGC Regulations, 2010.
Sd/-
AMIT RAWAL JUDGE hmh WP(C) NO. 23310 OF 2020 -20- APPENDIX OF WP(C) 23310/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF EXPERIENCE CERTIFICATE ISSUED BY THE DIRECTOR, CIFNET DATED 6.8.2015.
EXHIBIT P2 TRUE COPY OF THE NOTIFICATION NO.AD.D1/SIF-M.FSC/2013 ISSUED BY THE 2ND RESPONDENT DATED 12.6.2013.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 17.8.2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 1.2.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE ORDER NO.AD.D1/MG&GRP/A.P/2015 DATED 3.9.2015 OF CUSAT.
EXHIBIT P6 TRUE COPY OF THE INTIMATION NO.AD.D1/SIF/IMT/2015 DATED 5.6.2017 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 6.6.2017.
EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 9.6.2017 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR, CIFNET.
EXHIBIT P9 TRUE COPY OF THE ORDER NO.AD.D1/SIF/IMT/2015 ISSUED BY THE 2ND RESPONDENT DATED 19.6.2017.
WP(C) NO. 23310 OF 2020 -21- EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 14.12.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P11 TRUE COPY OF THE ORDER NO.AD.D1/SIF/IMT/2015 DATED 27.2.2018 OF THE 2ND RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE ORDER NO.CUSAT/AD(D).SO/26/2020 DATED 3.1.2020 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE ORDER NO.AD.D1/SIF/IMT/2015 DATED 14.7.2020 ISSUED BY CUSAT.
EXHIBIT P14 TRUE COPY OF THE LETTER BEARING NO.AD.D3/NA(K) DEPT OF MATHS/2015(X) DATED O8.09.2021 ISSUED BY THE REGISTRAR OF THE 2ND RESPONDENT UNIVERSITY RESPONDENT NIL EXHIBITS