University Of Kerala vs Lyn James on 21 March, 2024

[Cites 11, Cited by 0]

Kerala High Court

University Of Kerala vs Lyn James on 21 March, 2024

Is there any criteria to be satisfied/fulfilled by the 'Assistants' of the Kerala University for declaration of probation and for promotion to higher grades/posts ? Is there any mandatory test to be passed or qualified by them for declaration of their probation and for being promoted to higher grades/posts ? The appellants led by learned Senior counsel Sri.George Poonthottam and instructed by Adv.Navaneeth Krishnan A.L. answers the queries emphatically in the affirmative, whereas the party respondents, led by learned Senior Counsel Sri.Jaiju Babu and instructed by Adv.V.Madhusudhanan, with equal if not more vigour, in the negative. Let us examine the controversy involved.

2. These intra court appeals have been filed by the petitioners and 47 Writ Appeal No.1266 of 2020 & conn.cases the first respondent, University of Kerala, aggrieved by the common judgment dated 08/09/2020 disposing of W.P.(C)Nos.1366/2018 ; 5731/2018 ; 8866/2018 ; 9290/2018 ; 6297/2019 ; 4267/2020 and 4755/2019. The petitioner in W.P.(C)No.27317/2023 support the case of the appellants in the writ appeals. The facts and the dispute/issue involved in all the appeals are the same and hence they are being disposed of together. The facts ; the parties and the documents will be referred to as described in W.P. (C)No.1366/2018 unless otherwise referred to.

3. The writ petition was filed challenging Exts.P1, P2 and P8 orders of the first respondent University of Kerala (the University). According to the petitioners, they were appointed as Assistants in the University pursuant to a due process of selection and on the basis of a rank list published on 14/04/2008. They were granted promotions as Senior Grade Assistants and thereafter as Selection Grade Assistants on various dates as per Ext.P1 order dated 23/02/2017. Respondents 4 to 36 (the party respondents) were promoted as Section Officers by Ext.P1 order as well as by Ext.P2 order dated 16/08/2017. Ext.P1 order was issued based on the judgment dated 21/02/2017 in W.P.(C)No.491/2012 and connected cases. The petitioners passed the departmental test in January 2009 and completed their probation in 48 Writ Appeal No.1266 of 2020 & conn.cases the post of Assistants in May/June 2009. They were thus eligible to be promoted as Senior Grade Assistants in June 2009. Ext.P3 is the list of Assistants eligible for promotion as Senior Grade Assistants in June 2009. All the petitioners figured in Ext.P3 list. The party respondents had passed the departmental test only in July 2009 and thereafter. Ext.P4 is the list of Assistants who have passed the departmental test after June 2009. Though the party respondents had passed the department test only after the petitioners had passed the departmental test, the former have already been promoted as Section Officers. The order of promotion issued by the University is in violation of the principles of seniority. Therefore, the petitioners submitted a representation dated 27/02/2017 before the Vice Chancellor, that is, the second respondent, who in turn constituted a Committee for rectifying the anomalies.

3.1. The Committee on 17/05/2017 submitted Ext.P5 report recommending the Assistants of the 2008 batch to be promoted to the cadre of Senior Grade with effect from 03/12/2009 and to Selection Grade with effect from 01/04/2011. The second respondent called for objections to Ext.P5 report, to which various objections were filed. The Committee on 28/06/2017 submitted a draft proposal to the second respondent. The second respondent 49 Writ Appeal No.1266 of 2020 & conn.cases after considering the fresh recommendations of the Committee, directed the latter to submit a comprehensive report after verifying the available records and after considering all the aspects involved in the matter. Pursuant thereto, the Committee submitted Ext.P6 report dated 10/08/2017. The Committee found that promotions granted to the party respondents ignoring the seniority of the petitioners was wrong and placed them in the list according to the date of passing the departmental test. Though the finding of the Anomaly Rectification Committee that the promotions given to the party respondents as per Exts.P1 and P2 was wrong, no steps were taken by the second respondent to implement Ext.P6 report and to revise the promotions already granted.

3.2. The petitioners filed W.P.(C)No.30240/2017 seeking a direction to respondents 1 and 2 to promote the petitioners as Selection Grade Assistants with effect from the date of Ext.P1 order in the light of Ext.P6 report which was prepared in accordance with the existing rules. However, no action has been taken by the University. Instead of implementing the same, the University in order to deny the chance of promotion to the petitioners, sought the opinion of a legal advisor. The legal advisor has given a totally incorrect opinion that the dates of vacancies should be unified considering the date of joining of the last incumbent of the 2008 batch 50 Writ Appeal No.1266 of 2020 & conn.cases Assistants and to revise the promotions in the said manner. Ext.P8 order dated 03/01/2018 was thus issued by the University unifying the dates of vacancy as 03/07/2010 and revising the promotions accordingly. By the unification of vacancies which occurred on different dates, the party respondents who passed the department test subsequent to the petitioners were able to retain the illegal promotions obtained by them. The principle of 'date of occurrence of vacancy' as contemplated under the general rules, which has been settled in a catena of decisions has been given a go-by on the basis of the illegal opinion of the legal advisor of the University. Hence, the writ seeking quashing of Exts.P1, P2 and P8 orders to the extent it granted promotion to the party respondents as Section Officers ; to direct the University to promote the petitioners as Section Officers with effect from the date of Ext.P1 order in the light of Ext.P6 report with all consequential benefits and to declare that the unification of dates of vacancies for the purpose of making promotions to the post of Section Officer as per Ext.P8 is illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India.

4. Respondents 1 and 2, the University, filed counter affidavit inter alia contending that as several complaints were received to Ext.P6 report, a new Committee was constituted to verify the complaints, pursuant to which a 51 Writ Appeal No.1266 of 2020 & conn.cases report was submitted on 13/03/2018. Objections were called for to the report. Challenging the issuance of the circular inviting complaints regarding the list prepared based on the report, W.P.(C)No.9290/2018 was filed. As per interim order dated 27/03/2018, it was directed that proceedings pursuant to the circular inviting complaints could continue. However, the finalisation of the same was to be done only after obtaining orders of the court. Accordingly, the Committee examined the complaints received and submitted a report and a list. The newly constituted Committee took into consideration the minutes of the Syndicate held on 31/05/1963 and on 01/06/1963 resolving to implement Ext.R1(a) order dated 14/01/1963 in the University relating to passing of obligatory departmental test. Ext.R1(b) is the minutes of the meeting of the Syndicate held on 31/05/1963 and 01/06/1963 respectively. Ext.R1(d) is the list of employees to be promoted to the higher posts, that is, Assistant Senior Grade ; Assistant Selection Grade and Section Officer in accordance with the report of the Anomaly Rectification Committee. Despite the passage of time after the issuance of Ext.P1 order dated 23/02/2017, steps have not been finalised to effect promotions and to fix salary. The employees of the 2000 batch are still drawing the salary in the cadre of Assistants.

5. Respondents 7, 8, 12, 15, 16, 17, 21, 23, 28 and 33, the party 52 Writ Appeal No.1266 of 2020 & conn.cases respondents, filed a joint counter affidavit contending that neither the Ordinances nor the Rules or Statutes prescribe passing of any departmental test for the purpose of granting promotion to the post of Assistant Grade-I from the post of Assistant Grade-II or for further promotion to the post of Selection Grade Assistant or Senior Grade Assistant or Section Officer or for that matter any higher post including Section Officer. Since neither the Act, Statute nor the Ordinances prescribe passing of any departmental test for promotion, the claim of the petitioners that since they had passed the departmental test earlier, they should be given promotion or preference in the matter of promotion to the post of Section Officer is without any merit or bona fides. The petitioners are far junior to the respondents in the seniority list and in the order of appointment in the cadre of Section Officer. Therefore, the petitioners cannot seek any preferential claim for promotion over the respondents for the higher posts. Rule 28(b) of the KS & SSR has no relevance or application with reference to the service condition of the employees of the University since it is independently governed by the Special Rules, namely, the Kerala University Act, 1969 (the KU Act) ; the Kerala University First Statutes, 1977 (the KUFS) and the Kerala University First Ordinances, 1978 (the KUFOs). The petitioners have not challenged the 53 Writ Appeal No.1266 of 2020 & conn.cases seniority list of the Assistants published in the year 2013. When the promotion to higher cadres is based on 'seniority' and 'merit', the petitioners cannot be heard to say that promotion as Section Officer is bad for want of qualification since no additional qualification of passing the departmental test for promotion to Section Officers has been prescribed. Even going by Rule 19 of the General Rules contained in the KS & SSR, though not adopted by the University in the matter of governing service conditions of the employees, the passing of departmental test is mandated only if such a test is prescribed in the Special Rules governing the service.

6. The learned Single Judge disposed of the writs declaring that there is no provision in the KU Act, Statutes or Ordinances governing the Assistants/Assistants Grade-II working in the University prescribing test qualification either for probation or promotion to higher posts. Thus, the University was directed to take further action accordingly. All proceedings granting promotion with reference to the date of acquisition of test qualification has been directed to be revised and promotions granted on the basis of seniority. Aggrieved, the petitioners have come up in appeal.

7. The crucial question that needs to be answered in the aforesaid appeals is whether passing any departmental test(s) is obligatory for 54 Writ Appeal No.1266 of 2020 & conn.cases declaration of probation and promotion from the entry level post of 'Assistant' to higher grades/posts in the University.

8. We heard both sides and have also anxiously considered the submissions made by them.

9. It would be apposite to refer to the relevant provisions of the Act, Statutes and Ordinances relied on by either side. Statute 9 in Chapter IV of the KUFS reads -

"9. Probation and confirmation of non-teaching staff.- (1) Every person appointed to class, I, II and III post shall, from the date on which he joins duty be on probation for a period of one year within a continuous period of two years:

Provided that where there are more than one grade to the same category and duties and responsibilities attached to the various grades are one and the same and appointment to the higher grades are made by promotion from the lower grades, then probation shall be insisted only in the lowest grade to such category.

Provided that it shall be competent for the Syndicate to extend the period of probation for a period not exceeding one year for good and sufficient reasons.

(2) If, on expiry of the prescribed period or extended period of probation, the Syndicate decides that a person appointed to any class or category is not suit- able for continuance in the post to which he has been appointed, it shall discharge him from service or revert him to his original appointment as the case may be, after giving him a 55 Writ Appeal No.1266 of 2020 & conn.cases reasonable opportunity of showing cause against the action proposed to be taken against him, (3) On satisfactory completion of probation, every person shall be declared to have satisfactorily completed his probation by a written order of the competent authority. Thereafter, he shall become eligible for confirmation."

Therefore, when the petitioners and the party respondents entered service as 'Assistant' on various dates in the year 2008, they were placed on probation for a period of one year within a continuous period of two years. It was only on successful completion of probation; their probation was liable to be declared pursuant to which they became eligible for confirmation or became a full member in the post.

10. For declaration of probation, is an 'Assistant' required to 'pass any departmental test' ? The petitioners and the University rely on Statutes 2 and 10 of Chapter IV of the KUFS; Statute no.3 in Chapter XVII of the KUFOs; Rule 19(b)(i) of the KS & SSR as well as Ext.R1(a) and Ext.R1(b) to canvass the point that 'pass in test' is necessary. The party respondents on the other hand referring to the term 'prescribed' in the aforesaid provisions of the KUFS and KUFOs and the definition of the said term contained in Section 2(14) of the KU Act, contend that as long as the relevant Statutes, 56 Writ Appeal No.1266 of 2020 & conn.cases Ordinances, Regulations, Rules etc. do not prescribe a test, the University cannot insist on the same.

11. Statute no.10 in Chapter IV of KUFS reads -

"10. Passing of Examination or Test. - The University employees shall be required to pass such departmental tests or examinations within such period as may be prescribed by the Syndicate within the period of probation."

Clause 3 in Chapter XVII of the KUFOs reads -

"3. Scales of pay, age etc., for non-teaching posts:-

(1) The scales of pay, age limit, minimum qualifications and method of recruitment to the posts specified in column (1) of the schedule given hereunder shall be as prescribed in the corresponding entries in columns 3,4,5,6 and 7 respectively thereof.

(2) Each scale of pay shall carry the increment at such rate as may be prescribed by the Syndicate.

(3) No person shall be appointed to a post unless he possesses the minimum educational and other qualifications prescribed therefor:

Provided that in the case of employees who were in permanent service on the dates on which the Ordinances or portions thereof made under the Kerala University Act, 1957 came into operation, the Syndicate may relax the qualifications on the merits of each case."

Writ Appeal No.1266 of 2020 & conn.cases The relevant part of the Schedule referred to in Clause 3 reads-

Sl.       Designation     Scale of   Age             Qualifications            Method of
No.                         pay                                               recruitment


                                                 General      Technical
(1)            (2)          (3)       (4)                  (5)                    (6)


20     Assistant Grade 1 285-550                           Pass in the By promotion of
       (Common)                                            prescribed  suitable   Assistant
                                                           Tests.      Grade II on the basis
                                                                       of seniority and
                                                                       merit.
21     Assistant Grade II 240-445 Not more University        Good         By recruitment on
       including    Store         than     35 Degree but handwriting      the      basis      of
       Keeper (Common)            years, but relaxable in                 competitive       test
                                  relaxable the case of                   and /or interview by
                                  in the case Clerical                    inviting applications
                                  of          Assistants                  by advertisement in
                                  promotees who        have               the Press or by
                                              acquired                    promotion on the
                                              SSLC        or              basis of seniority,
                                              equivalent                  subject to such
                                              qualification               norms as may be
                                              .                           prescribed, from the
                                                                          cadre of Clerical
                                                                          Assistants who have
                                                                          acquired a minimum
                                                                          of seven years of
                                                                          service of which
                                                                          five years shall be as
                                                                          qualified     Clerical
                                                                          Assistants and have
                                                                          passed             the
                                                                          prescribed eligibility
                                                                          test.

Therefore, as per the above provisions, 'a pass in the prescribed test' is necessary for declaration of probation of an Assistant and thereafter for 58 Writ Appeal No.1266 of 2020 & conn.cases promotion from Assistant [which was earlier Assistant Grade-II which merged with the promotion post of Assistant Grade-I and was re-designated as 'Assistant' pursuant to University order dated 28/06/2006 implementing the pay revision effected on the basis of the report of the 8 th Pay Revision Commission as per G.O. (P)No.145/06/Fin. dated 25/03/2006] to the next higher grade of Senior Grade Assistant and thereafter as Selection Grade Assistant.

12. The term 'prescribed' is defined under Section 2(14) of the KU Act meaning - prescribed by the Act, or the Statutes, Ordinances, Regulations, rules or bye-laws made thereunder. The fact that the Syndicate has not prescribed any test(s) as contemplated under the aforesaid provisions is not disputed by either side or for that matter by the University. Therefore, it is unnecessary for us to go into the arguments or the several decisions relied on by either side as to the meaning to be assigned to the term 'prescribed' or the manner or procedure by which Ordinances or Regulations are made. It was submitted during the course of arguments that after the impugned judgment, the University in the year 2021 has initiated steps to amend the relevant Statutes so as to make it obligatory for every person appointed as Assistant to pass the obligatory test conducted by the PSC for successful 59 Writ Appeal No.1266 of 2020 & conn.cases completion of probation and promotion. But this process has not yet been completed. Therefore, it was argued on behalf of the party respondents that unless and until tests are prescribed in the manner provided under the relevant Statutes, declaration of probation and promotions cannot depend on pass in the tests. In the absence of a test being prescribed by the Senate as contemplated under the aforesaid provisions, the next question that arises is the 'procedure' to be followed in the declaration of probation and grant of promotion to higher grades or posts.

13. The petitioners and the University in answer to the aforesaid question, rely on Ext.R1(a) and R1(b) as well as Statute no.2, Chapter 4 of KUFS. Per contra, according to the party respondents, Ext.R1(a) Government Order (G.O.) providing for passing the Account Test (Lower) and test in Office Procedure, is applicable to LD Clerks only and so the G.O. cannot be made applicable to Assistants of the University as they are in the cadre of U.D. Clerks. Ext.R1(b) minutes of the Senate was only an adoption of the G.O. applicable to L.D. Clerks in the Government service. Based on Ext.R1(b) resolution, consequential orders have not been issued by the University to form it into a binding order, modifying the service conditions. A decision taken by the Syndicate cannot be a substitute for a Regulation or an 60 Writ Appeal No.1266 of 2020 & conn.cases Ordinance, which can be the only legitimate manner in which such decisions can be made mandatory or binding, goes the argument of the party respondents. In support of this argument, reference was made to the dictums in State of Punjab v. Madan Singh, AIR 1972 SC 1429 : (1974)3 SCC 90 and State of Haryana v. Shamsher Jang Shukla, AIR 1972 SC 1546.

14. In Madan Singh (Supra), the executive instructions issued by the Government concerned, prescribing departmental test as a condition precedent for considering the promotion of Clerks to the post of Assistants was challenged. As per the Rules applicable to the appellant therein, any one could be appointed as an Assistant if he possessed sufficient experience of the Rules and Regulations and was capable of putting up "intelligent notes and drafts". Under the Rules, no Clerk had to pass an examination or a test for being considered for promotion as Assistant. Matters being so, an office order was passed prescribing a test for those who were working as Senior Clerks and those who were officiating as Assistants in order to guide the making of the promotions to the post of Assistants. The office order stated that the officials who refused to take the test or failed to qualify in it, would not be deemed eligible for promotion. The Apex Court held that executive instructions/orders issued by the Government are void as they amounted to an 61 Writ Appeal No.1266 of 2020 & conn.cases alteration of the Rules prescribed under Section 241 of the Government of India Act.

15. In Shamsher Jang Shukla (Supra), the question of law that was inter alia considered was whether the Government could by administrative instruction add to the conditions of service relating to the promotion of a government servant prescribed under Article 309 of the Constitution of India. It has been held that when Rules have been made under Article 309 prescribing conditions of service, the Government was not competent to alter by means of administrative instructions the conditions of service prescribed by the Rules. But it has also been held that though the Government cannot amend or supersede the statutory rules by administrative instructions, if the Rules were silent on any particular point, the Government could fill up the gaps and supplement the Rules and issue instructions not inconsistent with the Rules already framed.

16. The petitioners rely on the dictum in Pankajakshan Nair v. Jayaraj, (2002)10 SCC 396 wherein it has been held that when the statutory rules are silent on a particular topic and there is no provision which can be held to be contrary to the executive instructions, then the latter would continue to operate in the field. The executive instructions must then be held 62 Writ Appeal No.1266 of 2020 & conn.cases to be supplemental to the statutory rules.

17. Ext.R1(a) G.O. dated 14/01/1963 of the Government of Kerala reads -

"The question of prescribing unified tests in Office Procedure and Account Test (Lower) for the ministerial staff of the different offices of the State Government has been under consideration of the Government. After detailed consideration the Government are pleased to issue the following orders:-

1. Account Test (Lower) - Lower Division Clerks in all offices except the Kerala High Court but including the Office of the Public Service Commission and the Civil and Criminal Courts subordinate to the High Court and Assistants Grade II in the Secretariat (excluding Legal Assistants Grade II in the Law Department of the Secretariat) should be required as at present to pass the Account Test (Lower) for confirmation in the lower division or Grade II and for promotion to the upper division or Grade I.

2. Test in Office Procedure.- (a) Assistants Grade II in the Secretariat (including Legal Assistants Grade II in the Law Department) and Lower Division Clerks of the Offices of the Public Service Commission and the Director of Public Relations in the scale of Rs.50-125 should pass a test on the Kerala Secretariat Office Manual within the period of probation.

(b) Lower Division clerks in the Revenue Department including the Office of the Board of Revenue should pass a test on 63 Writ Appeal No.1266 of 2020 & conn.cases the District Office Manual during the period of probation.

(c) Lower Division Clerks in the Police Department including the Office of the Inspector General of Police should pass Part II of the Police Test (A test on the Manual of Office Procedure for use in the Police Department) during the period of probation.

(d) Lower Division Clerks in the remaining offices except the High Court but including the Civil and Criminal Courts subordinate to the High Court and subordinate offices of the Public Relations Department should pass a test on the new Manual of Office Procedure for use in Offices other than Secretariat during the period of probation and

3. The penalty for not passing the tests in Office Procedure during the period of Probation will be as indicated in rules 19(b) and 21 of Part II of the Kerala State and Subordinate Services Rules, 1958. In cases where probation has not already been prescribed, the persons concerned should be required to pass the tests within a period of two years from the date of orders or from the date of appointment, whichever is later. Persons who, on the date of issue of orders, have either passed the Travancore- Cochin Secretariat Office Manual Test or have already secured promotion to the Upper Division or Grade I will not be required to pass the new test in Office Procedure."

18. As per Ext.R1(b), the syndicate of the University in its meeting held on 31/05/1963 and 01/06/1963 resolved to make Ext.R1(a) G.O. applicable to the University with effect from 14/01/1963. Hence, from the 64 Writ Appeal No.1266 of 2020 & conn.cases year 1963 onward till date, Assistants had to pass the test in Office Procedure/Secretariat Manual for declaration of their probation and Account Test for being promoted to the next Grade, that is, Assistant Senior Grade. It is not disputed that all the petitioners and the party respondents cleared the departmental test before their probation was declared. The party respondents do not have a case that it was not the tests referred to in Ext.R1(a) G.O. that they had appeared for and passed. None of the employees of the University or for that matter, the party respondents challenged Ext.R1(b) decision of the Senate resolving to apply Ext.R1(a) G.O. to the University employees all these years. The challenge seems to have been raised for the first time in the year 2017-2018. Moreover, neither Ext. R1(a) nor Ext.R1(b) does in any way alter or modify the provisions of any Act/Statute/Ordinances etc. applicable to the University in question as was the case in Madan Singh and Shamsher Jang Shukla (Supra). Unlike in Madan Singh (Supra) where there were no tests at all to be passed, here, the relevant provisions to which we have already adverted to, say pass in tests prescribed is necessary. No doubt, it would certainly have been ideal had the Syndicate taken steps pursuant to Ext. R1(b) resolution taken way back in the year 1963, to prescribe test in the manner provided under the aforesaid provisions. Nevertheless, as held in 65 Writ Appeal No.1266 of 2020 & conn.cases Shamsher Jang Shukla and Pankajakshan Nair (Supra), though the University cannot amend or supersede the statutory rules/ Ordinances etc. by resolutions/ instructions, when the former are silent on any particular point or gaps are there, then instructions/orders not inconsistent with the Rules already framed can be made. As long as there is no provision in the Statutes/ Regulations/Ordinances which can be held to be contrary to the resolution/ instructions, it can only be taken to be supplemental to the former and would continue to operate in the field. Based on Ext.R1(b), the University has all along passed several orders relating to probation and promotion, which decision, as noticed earlier was never ever challenged till the present proceedings were initiated.

19. A reference to Statute 2, Chapter 4 of KUFS would make the position all the more clear. The same reads -

"2. Applicability of the Kerala Service Rules etc., to the non- teaching staff.

(1) Subject to the provisions of the Act and the statutes issued thereunder, the Kerala State and Subordinate Service Rules, 1958, the Kerala Service Rules, 1959 and the Government Servants Conduct Rules, 1960 as amended from time to time in so far as may be applicable and except to the extent expressly provided for 66 Writ Appeal No.1266 of 2020 & conn.cases in these Statutes shall apply in the matter of all the service conditions of the University employees in the University service:

Provided that the said rules shall, in their application to the members of the University service, be construed as if the employees were the Kerala University instead of the Kerala State Government.

Notwithstanding anything contained in these statutes, the employees who were in the University service immediately before the 30th day of August 1957 and to whom section 28 (b) of the Travancore University Act, 1113 was applicable shall be governed by the service rules and conditions of service to which they were subject to before the 30th day of August, 1957. provided that such employees have not exercised their option to be governed by the provisions in Chapter LVIII of the Ordinances immediately in force before the commencement of the Kerala University First Statutes, 1972." (Emphasis supplied) In the absence of any test being prescribed by the Senate as provided under Clause 3 in Chapter XVII of the KUFOs ; Statute 2 in Chapter 4 of the KUFS would come into play and make the provisions of the KS & SSR applicable, the provisions of which are not in any way inconsistent with any of the provisions of the Act/Statutes/Ordinances applicable to the University.

20. It is true that Ext.R1(a) and Ext.R1(b) are of the year 1963, which are apparently and obviously much before the KU Act 1974 came into 67 Writ Appeal No.1266 of 2020 & conn.cases being. But even after the KU Act, 1957 and the KU Act, 1969 were repealed and the KU Act, 1974 came into being, the fact that for the past more than five decades all the employees of the University including the petitioners and party respondents had undertaken the departmental tests without any demur is admitted. When a specific question was put as to why the departmental tests as prescribed under the KS & SSR was taken by the party respondents, if the same had not been made obligatory for the employees, no plausible answer was forthcoming. Here reference to Annexure A1 in W.A.No.1266/2020 a representation dated 26/05/2014, admittedly, given by the Assistants of the University including some of the party respondents herein is necessary. The relevant portion reads -

"1. We were recruited as Assistants in the service of the University of Kerala based on the selection conducted in pursuance to notification dated 03.03.2005 issued by the University. On completion of the selection process the University published rank list on 08.04.2008. We were appointed as Assistants by order No.Ad.AI.3.146/2008 dated 20.05.2008 and we joined duty on different dates in May-June 2008 and we are continuing in service for the last six years without interruption.

2. ............................... But we are not being promoted to Senior Assistants and higher categories, apparently because of the pendency of proceedings before the Kerala Lok Ayukta in 68 Writ Appeal No.1266 of 2020 & conn.cases complaint No.572 of 2008 filed by one Mr. Sujith S.S, alleging irregularities in the selection process. The Upa Lok Ayukta has already forwarded its final report dated 29.12.2011 in the above complaint to the competent authority under the Act for further action on the recommendations in the report.

3. xxxxx xxxxx xxxxx

4. As submitted earlier, we have completed 6 years service as Assistants and have become fully qualified for promotions by passing the "obligatory departmental examination" (RULE 12(7) of K.S.R. Part I Explanation (iii) "any test a pass in which is prescribed for the promotion to any higher post coming in the line of promotion in the Department concerned") conducted by the Kerala Public Service Commission prescribed for promotion as Senior Assistants................

5. xxxxx xxxxx xxxxx ...................Be that as it may, denial of promotion despite completion of more than 6 years of service and after having passed the obligatory departmental examination conducted by the Kerala Public Service Commission is highly unconstitutional. .............."

(Emphasis supplied).

In addition, we refer to Annexure A5 order of the University dated 26/11/2009 produced along with their reply affidavit dated 09/11/2023 filed in W.A.No.1437/2020 which reads thus -

" UNIVERSITY OF KERALA (Abstract) 69 Writ Appeal No.1266 of 2020 & conn.cases Establishment - Declaration of probation of Assistants-Sanctioned- Orders

--------------------------------------------------------------------------------

ADMINISTRATION 'A.I.' SECTION No.Ad A. 1/3.589/09(1) Dated. Thiruvananthapuram, 26.11.2009

-------------------------------------------------------------------------------- Read: 1. U.O. No.Ad.AV.1./6180/2002 dated 15.03.2002

2. U.O No. Ad Al/3/146/08 dated 18.06.2008 and 26.07.2008 ORDER According to Statute 9 Part II Chapter IV of the Kerala University First Statutes 1977, "every person appointed to Class I, II and III posts shall from the date on which he joins duty, he on probation for a period of one year within a continuous period of two years".

The Assistant appointed by the University of Kerala while paper read as (ii) above were placed on probation for a period of one year within a continuous period of two years from the date on which they joined duty in the respective Departments/Sections of the University.

Accordingly, the following Assistants had completed one year of service in the University in the post of Assistant and duly passed the obligatory departmental examination conducted by the Kerala Public Service Commission, prescribed as per 12(7) Explanation (i), Part I Kerala Service Rules for the successful completion of probation. The work and conduct of these Assistants during the period of their probation have been found to be satisfactory and they have not availed themselves of any leave affecting extension of their probationary 70 Writ Appeal No.1266 of 2020 & conn.cases period.

Sanction has therefore been accorded by the Registrar to the probation period of the said employees being declared as satisfactory completed in the post of Assistant in the University of Kerala w.e.f. the dates as detailed against their names below.

 Sl.No         Name of          Departmen Date of Entry          Probation       Probation
              Assistant          t/Section     into Service completed on declared on
1           Naveen S.L.         EG I          22.05.2008       21.05.2009      22.05.2009
                                              FN               AN              FN
2           Rajanikanth V       ED XVI        22.05.2008       21.05.2009      14.07.2009
                                              FN               AN              FN
3           Suma V.S.           Ac EI B       23.05.2008       22.05.2009A 23.05.2009
                                              FN               N               FN
4           Sajumal T.S.        EG I(a)       26.05.2008       25.05.2009      14.07.2009
                                              FN               AN              FN
5           Anil Kumar D        ED I (a)      31.05.2008       30.05.2009      31.05.2009
                                              FN               AN              FN
6.          Shibi R             Ad.AV         26.05.2008       25.05.2009      14.07.2009
                                              FN               AN              FN
7.          Meera M.J.          DPE           02.06.2008       01.06.2009      02.06.2009
                                              FN               AN              FN
8.          Ajina               Ac AI         23.05.2008       22.05.2009      23.05.2009
            A.Mohammed                        FN               AN              FN

The first increment in the scale of pay of the probation post of the above said Assistants shall be drawn under the provisions contained in Rule 37B(b)(ii) of Part I Kerala Service Rules and G.O. (P)133/75/Fin. dated 31/03/1975.

Deena Stephen Deputy Registrar (Admn.I) for Registrar" (Emphasis supplied).

Some of the party respondents, namely, respondents 5, 21, 24, 25 and 29 71 Writ Appeal No.1266 of 2020 & conn.cases figure in Annexure A5 list, that is, at serial no.8, 2, 5, 4 and 6 respectively.

21. We also refer to Annexure A6 circular dated 20/09/2010 of the University which has also been produced along with the reply affidavit in W.A.No.1437/2020. Annexure A6 contains a list of Assistants who had passed the Account test and Secretariat Manual test conducted by the Kerala Public Service Commission (the KPSC) up to and during January 2010. The Circular reads -

"UNIVERSITY OF KERALA (.... ..... .....) CIRCULAR Sub :- Provisional list of the Assistants who have passed the departmental test viz. Account test and Secretariat Manual test conducted by Kerala Public Service Commission up to and during January 2010 - reg.

A provisional list of Assistants in the University who are in service and have passed the Account Test and Secretarial Manual Test conducted by the Kerala Public Service Commission up to and during December 2009/January 2010 is appended to the circular for information of all concerned.

Complaints if any in respect of the test(omissions, descriptions etc.) should be forwarded through Branch officers/Head of the Department concerned so as to reach the Ad.A.V Section before 10/10/2010 . If no complaints are received within that period the provisional list will be 72 Writ Appeal No.1266 of 2020 & conn.cases finalized without further notice.

The Heads of the Departments/Officers shall bring the contents of this Circular to the notice of all the Assistants working under their control.

Deena Stephen Deputy Registrar (Admn.I) for Registrar "

22. The provisional list of 130 Assistants who are seen to have entered service on various dates in the year 2008 and who passed the Account Test and Secretarial Manual test during and up to January 2010 is seen appended to Annexure A6 circular. Except for the fifth petitioner, all the other petitioners and the names of 24 of the party respondents figure in the list. Annexures A1 in W.A.No.1266/2020; A5 and A6 in W.A.No.1437/2020 which are not disputed by the party respondents make it clear that the decision taken by the University as per Ext.R1(b) continued to be enforced or implemented without any challenge from any quarter including the party respondents for the last more than five decades.

23. Admittedly, the party respondents passed the departmental test sometime during the period June 2009-January 2010. It is too late in the day for the party respondents to now contend that there is no requirement of passing any test for declaration of probation or promotion. In the light of Annexures A1, A5 and A6 referred to hereinabove, the party respondents cannot take up a stand as was attempted to be put forward during the course of arguments that though 73 Writ Appeal No.1266 of 2020 & conn.cases pass in departmental tests was never obligatory, they appeared and cleared the same just for the heck of it. If probation is to be declared or promotion granted as contended by the party respondents, that would have far reaching consequences as it may in some cases even affect persons who have retired from service long back. Where a remedy is sought by filing a writ petition, normally, a belated service related claim, will be rejected on ground of delay and laches. Reopening or reworking the seniority list based on a procedure never ever adopted by the University all these years would certainly affect others. The delay in challenging Ext.R1(b) and the actions taken all these years based on the same, has made the declarations sought for or the claim made by the party respondents in the writ petitions filed by them stale as the doctrine of laches is squarely applicable. [Union of india v. Tarsem Singh, (2008)8 SCC 648].

24. Hence, we hold that 'pass in departmental tests' as decided by the University in Ext.R1(b) is essential for declaration of probation and promotion thereafter. The question that now arises is as to the crucial date(s) on which promotion could be granted. According to the petitioners, in the light of the aforesaid provisions and Rule 28(a)(i) ; Rule 28 (iA) ; Rule 28(bb) and Rule 28(bbb) of the KS&SSR, promotions can only be based on the date 74 Writ Appeal No.1266 of 2020 & conn.cases of acquisition of test qualifications and with reference to the date of occurrence of vacancies. In support of this argument, reference was made to the dictums in K.Haridas v. High Court of Kerala, (2000)9 SCC 717 ; O.P.No.4643/2003(C) and Vijayakumar S. v. State of Kerala, 2016(4) KHC 16. On the other hand, it was submitted on behalf of the party respondents that seniority is dependent upon the date of advice and that seniority does not depend on the date of completion of probation or pass in the test. Admittedly, when the party respondents were considered for promotion in the year 2017, all of them stood qualified and hence the date of passing the tests is immaterial for fixing seniority in the grant of promotion. This is disputed by the petitioners who contend that the eligibility for grant of promotion is to be considered when vacancies arise. Here, vacancies to the higher grades were existing right from the year 2006. It was only because of a order of stay by this Court, promotions were not granted during the period from 2009 to 2017. The petitioners qualified/passed the mandatory departmental tests in January 2009 itself and their probation was declared in May/June 2009. The respondents on the other hand passed the tests for probation and promotion only in July 2009 and January 2010 respectively. Hence promotions ought to be effected from the date when the petitioners 75 Writ Appeal No.1266 of 2020 & conn.cases became eligible in the year 2009 and there can be no unification of the date of promotion as recommended in Ext.P8, goes the argument of the petitioners.

25. In Chacko (Supra) it has been held that it would be against the provisions of Rule 28(b)(ii) of KS&SSR to grant promotion to the junior most persons who happened to pass the test earlier if there were several persons qualified to be appointed or eligible to be promoted when the vacancies arose. The Rule does not provide for supersession of a senior who is found to be eligible and suitable on the date of vacancy, in favour of a junior who became eligible or acquired the necessary test qualification earlier. Promotion to the higher grades/posts depend upon passing the eligibility test. As per Rule 28(bb) of KS&SSR promotion shall ordinarily be made with reference to the conditions existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up. Therefore, when on the date when the vacancies occur, they are sought to be filled up on those days or with effect from those dates, the claim of all persons who are eligible to be considered for appointment on those dates have to be considered.

26. In Suseeladevi (Supra), it was held that a probationer in a Grade shall not be superseded for promotion to a higher grade by his junior if the 76 Writ Appeal No.1266 of 2020 & conn.cases vacancy arises within the period of completion of probation and he is otherwise eligible and suitable for promotion.

27. In Haridas (Supra), the Apex Court was dealing with proviso 1 to Rule 28A of the KS&SSR and Rule 12 of the Criminal Judicial Service Rules. The appellant therein, recruited as Second Class Judicial Magistrate was temporarily promoted to the post of First Class Magistrate. As per Section 12 of the Judicial Service Rules, every person appointed to the service either by direct recruitment or by transfer would be placed on probation for a total period of two years on duty within a continuous period of three years and if appointed according to the terms of appointment, such officers like the appellant were required to pass the examination during the period of probation. The appellant was unsuccessful in his first attempt. Pursuant to the result of the examination, a panel of successful officers was prepared for promotion to the post of Magistrate First Class. These officers were junior to the appellant. As the appellant did not pass the examination, his period of probation was extended. He was reverted to the post of Judicial Magistrate Second Class as he had not passed the examination within the period of his probation. Subsequently, he passed the examination during the course of the extended period of probation. After the appellant passed the examination, he 77 Writ Appeal No.1266 of 2020 & conn.cases was still shown as junior to the officers who had promoted on the basis of the panel prepared earlier. This was challenged by the appellant. The writ petition and the writ appeal filed were dismissed. When the matter reached the Apex court it was held that the benefit of Rule 28A could not be applied in the case of the appellant. The first proviso to Rule 28A provides that a probationer shall not be superseded for promotion to a higher class or grade by a junior if the vacancy in the higher class/category arises within a period specified in the Rules for completion of probation in the class. The period of probation being two years under Rule 12 of the Judicial Service Rules and the appellant having not passed the examination within the probationary period of two years, the proviso to Rule 28A was not attracted as the appellant passed the required examination during the extended period of probation and therefore he was not entitled to the benefits arising out of the first proviso to Rule 28 of the State Service Rules.

28. In the judgment dated 04.04.2007 in O.P.No.4643/2003(C) a Single Bench of this Court held referring to Clause 9 of Part II, Chapter 4 of the KUFS and Statute 10 that the University employees are required to pass such Departmental Tests or examinations within such period as may be prescribed by the Syndicate within the period of probation. It cannot be a 78 Writ Appeal No.1266 of 2020 & conn.cases matter of dispute that the provisions of the K.S&S.S.R. have been made applicable to the University employees and that Rule 28(a) of K.S.&S.S.R. provide that no member of a service or class of a service shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category. Rule 28(bb) of K.S. & S.S.R. provides that promotion in a service or class which depends upon the passing of any examination (General or Departmental) shall ordinarily be made with reference to the conditions existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up for consideration. It is settled law that in the matter of promotion, the date with reference to which the eligibility of the candidates has to be reckoned is the date of occurrence of vacancy. Thus, it was held that for promotion to the post of Assistant Grade I in the Kerala University, passing the departmental test was an essential qualification and only those who have passed the departmental test would be eligible to be considered for promotion.

29. In Vijayakumar S. (Supra) a Division Bench of this Court considered the question whether it was proper to rank juniors whose probation was declared earlier, above their seniors. It was held that there was no 79 Writ Appeal No.1266 of 2020 & conn.cases anomaly in assigning seniority with reference to the basic requirement of clearance of test for declaration of probation and for promotion as on the date of arising of vacancies. In other words, seniority could be assigned to juniors who had completed probation earlier. Referring to the first proviso to Rule 28(a)(i) of the KS&SSR, it was held that this Rule protects the interest of seniors to some extent, but to attract this proviso, three requirements are to be satisfied, that is, (i) firstly, the vacancy should have arisen during the period of probation; (ii) secondly, the senior should be having the relevant test qualifications prescribed for declaration of promotion and (iii), thirdly, he should be otherwise eligible and suitable for such promotion.

30. Hence we hold that declaration of probation and grant of promotions to the Assistants in the University shall be based on Rules 28(a)

(i); 28 (iA) ; 28 (bb) and 28 (bbb) of the KS & SSR. No Assistant shall be eligible for promotion from the category in which he was appointed to the service unless he has satisfactorily completed his probation in that category. Promotion which depends upon the passing of the departmental tests shall ordinarily be made with reference to the conditions existing at the time of occurrence of the vacancies and not with reference to those at the time when the question of promotion is taken up for consideration. The date with 80 Writ Appeal No.1266 of 2020 & conn.cases reference to which the eligibility of the candidates has to be reckoned is the date of occurrence of vacancy. Here it is not the year 2006, from which year the vacancies are stated to exist that has to be reckoned because then the petitioners were not even borne in service. If vacancy was existing when the petitioners or the party respondents qualified in the prescribed tests, they are certainly eligible to be promoted to the higher grade. There is no anomaly in assigning seniority with reference to the basic requirement of clearance of test for declaration of probation and for promotion as on the date of arising of vacancies. In other words, seniority can be assigned to juniors who had completed probation earlier subject to the first proviso to Rule 28(a)(i) of the KS&SSR. This proviso is to be applied to protect the interest of the seniors provided (i) the vacancy had arisen during the period of probation; (ii) the senior should be having the relevant test qualifications prescribed for declaration of promotion and (iii), thirdly, the senior should be otherwise eligible and suitable for such promotion.

31. It was further pointed out by the learned Senior counsel for the petitioners that some of the party respondents have filed W.P. (C)No.6297/2019 and W.P.(C)No.4755/2019 seeking a declaration that there is no requirement of test for promotion and that promotion has to be made 81 Writ Appeal No.1266 of 2020 & conn.cases irrespective of the passing or date of passing the test. W.P.(C)No.8866/2018 was filed seeking promotion based on Ext.P8 which has been assailed by the petitioners herein. However, in none of these cases, the affected persons have been made parties. The party respondents on the other hand contend that though affected persons have not been made parties in the said writ petitions, paper publication has been effected which is sufficient notice to the affected parties. We disagree. Publication in the newspaper does not cure the defect of non joinder of necessary parties. There was only a specified and definite number of candidates who were required to be impleaded. It is not as if there was a large unspecified number of people to be affected. In such cases, resort cannot be made to Rule 148 of the Kerala High Court Rules, which Rule can be applied only when very large number of candidates are involved and it is not possible to pin point those candidates with details. Hence, the writ petitions filed by the party respondents will have to fail on the ground of absence of necessary parties in the party array. This is because the prayer sought for in the writs filed by the party respondents if accepted, would result in a total rearrangement of the seniority list by which the seniority and promotion of several employees would be affected. It was thus imperative that all those persons who would be affected, should have been impleaded as 82 Writ Appeal No.1266 of 2020 & conn.cases they would be adversely affected without being heard [K.H.Siraj v. High Court of Kerala, (2006)6 SCC 395].

In the result, we set aside the impugned judgment and hold thus-

(i) Exts.P1, P2 and P8 are quashed.

(ii) For the Assistants of the Kerala University, passing the departmental tests as mandated in Exts.R1(a) and R1(b) is necessary for declaration of probation and thereafter for promotion to the higher grades/posts.

(iii) Probation shall be declared and promotion granted based on the relevant provisions of the KS&SSR referred to in paragraph 30 of this judgment. Writ appeals ordered accordingly. W.P.(C)No.27317/2023 is disposed of in the light of the aforesaid directions. Necessary steps shall be taken by the Kerala University within a period of two months from the date of receipt of a copy of this judgment.

Interlocutory applications, if any pending, shall stand closed.

Sd/-

AMIT RAWAL JUDGE Sd/-

C.S.SUDHA JUDGE ami/ 83 Writ Appeal No.1266 of 2020 & conn.cases APPENDIX OF WA 1266/2020 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE REPRESENTATION DATED 26/05/2014 SUBMITTED BEFORE THE VICE CHANCELLOR BY THE PARTY RESPONDENTS AND OTHERS.

ANNEXURE A2 TRUE COPY OF THE REPLY FURNISHED IN THE LEGISLATIVE ASSEMBLY DATED 30/01/2018.

Writ Appeal No.1266 of 2020 & conn.cases APPENDIX OF WA 1267/2020 PETITIONER ANNEXURES ANNEXURE A1 TRUE COPY OF THE RELEVANT PORTION OF THE REPORT OF THE ANOMALY RECTIFICATION COMMITTEE DATED 10/08/2017.

ANNEXURE A2 TRUE COPY OF THE REPLY FURNISHED IN THE LEGISLATIVE ASSEMBLY DATED 30/01/2018.

Writ Appeal No.1266 of 2020 & conn.cases APPENDIX OF WA 1428/2020 PETITIONER ANNEXURES ANNEXURE A1 THE TRUE COPY OF THE REPRESENTATION DATED 26.05.2014 SUBMITTED BEFORE THE VICE CHANCELLOR.

                                        86

Writ Appeal No.1266 of 2020 & conn.cases

                        APPENDIX OF WA 1430/2020

PETITIONER ANNEXURES
ANNEXURE A1        TRUE   COPY    OF   REPRESENTATION  DATED
                   26.5.2014   SUBMITTED   BEFORE  THE  VICE
                   CHANCELLLOR
                                        87

Writ Appeal No.1266 of 2020 & conn.cases

                        APPENDIX OF WA 1437/2020

PETITIONER ANNEXURES
Annexure A2        The true copy of the written submission
                   dated 23/5/2009 submitted by the 5th
                   respondent
Annexure A3        The true copy of the written submission
                   dated 27/5/2009 submitted by the 8th
                   respondent
Annexure A4        The true copy of the written submission
                   dated 21/5/2009 submitted by the 6th
                   respondent
Annexure A5        The true copy of the University Order
                   dated 26/11/2009 declaring probation
Annexure A6        The true copy of the circular dated
                   20/9/2010 and the appended provisional
                   list of assistants
Annexure A7        The true copy of the written submission
                   dated 31/10/2013 submitted by the 1st
                   respondent
Annexure A8        The true copy of the written submission
                   dated 31/10/2013 submitted by the 2nd
                   respondent
Annexure A9        The true copy of the written submission
                   dated 31/10/2013 submitted by the 4th
                   respondent
Annexure A10       The true copy of the written submission
                   dated 31/10/2013 submitted by the 5th
                   respondent
Annexure A11       The true copy of the written submission
                   dated 31/10/2013 submitted by the 6th
                   respondent
Annexure A12       The true copy of the written submission
                   dated 30/10/2013 submitted by the 7th
                   respondent
Annexure A13       The true copy of the written submission
                   dated 31/10/2013 submitted by the 8th
                   respondent
Annexure A14       The true copy of the written submission
                   dated 31/10/2013 submitted by the 9th
                   respondent
                                        88

Writ Appeal No.1266 of 2020 & conn.cases

Annexure A15             The true copy of the representation dated
                         26/5/2014

RESPONDENT EXHIBITS
Exhibit R7(a)       True copy of the relevant extract of the
                    preliminary minutes of the 27th meeting
                    of the Syndicate held on 07.05.2021.
Exhibit R7(b)       True copy of the relevant extract of the
                    minutes of the meeting of the Senate held
                    on 14.07.2021
                                        89

Writ Appeal No.1266 of 2020 & conn.cases




                        APPENDIX OF WA 1450/2020

PETITIONER ANNEXURES
ANNEXURE A1        THE TRUE COPY OF THE REPRESENTATION DATED
                   26.5.2014   SUBMITTED  BEFORE  THE   VICE
                   CHANCELLOR.
                                        90

Writ Appeal No.1266 of 2020 & conn.cases




                        APPENDIX OF WA 1454/2020

PETITIONER ANNEXURES
ANNEXURE A1        THE TRUE COPY OF THE REPRESENTATION DATED
                   26/5/2014   SUBMITTED  BEFORE  THE   VICE
                   CHANCELLOR.
                                        91

Writ Appeal No.1266 of 2020 & conn.cases




                        APPENDIX OF WA 1494/2020

PETITIONER ANNEXURES
ANNEXURE A1        THE TRUE COPY OF THE REPRESENTATION DATED
                   26-05-2014 SUBMITTED BEFORE THE VICE
                   CHANCELLOR.
                                        92

Writ Appeal No.1266 of 2020 & conn.cases



                APPENDIX OF WP(C) 27317/2023
PETITIONER EXHIBITS

Exhibit-P1                TRUE COPY OF ORDER NO. AD.AI.2/6765/17
                          DATED 23.02.2017 ISSUED BY THE UNIVERSITY
                          OF KERALA
Exhibit-P2                TRUE COPY OF THE JUDGMENT IN W.P(C).NO.
                          1366 OF 2018 DATED 08.09.2020 PASSED BY
                          THIS HON'BLE COURT
Exhibit-P3                TRUE COPY OF THE COMMON ORDER DATED
                          01.10.2020 OF THIS HON'BLE COURT IN W.A.
                          NO. 1266/2020 AND CONNECTED CASES
Exhibit-P4                TRUE COPY OF THE INTERIM ORDER DATED
                          26.02.2021 OF THIS HON'BLE COURT IN W.A.
                          706/2017
Exhibit-P5                TRUE COPY OF THE ORDER NO.AD.AI.4/7409/19
                          DATED 09.12.2022 OF THE UNIVERSITY
Exhibit-P6                TRUE COPY OF ORDER DATED 13.07.2023 IN
                          CON. CASE(C) NO. 170 OF 2023 IN W.A.NO.
                          1266/2020 PASSED BY THIS HON'BLE COURT
Exhibit-P7                TRUE COPY OF THE ORDER NO. 6700/2023/UOK
                          DATED 31.07.2023 ISSUED BY THE UNIVERSITY

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