Kerala High Court
Jospeh Thomas vs Union Of India on 20 December, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
W.P.(C) Nos.29684/2011 & 239/2013 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941
WP(C).No.29684 OF 2011(I)
PETITIONER:
JOSPEH THOMAS
S/O.LATE V.V.THOMAS, (LECTURER-RETIRED, CALICUT
ADARSHA SANSKRIT VIDYAPEETHA, BALUSSERY), RESIDING
AT THRIKKAIPARAMBU, CIVIL STATION P.O.,, FLORICAN
ROAD, CALICUT-20.
BY ADVS.
SRI.P.V.MOHANAN
SRI.BIJU.P.N.
RESPONDENTS:
1 UNION OF INDIA, REPRESENTED BY THE
SECRETARY, MINISTRY OF HUMAN RESOURCE DEVELOPMENT,
DEPARTMENT OF EDUCATION, GOVERNMENT OF INDIA,
NEW DELHI-110 001.
2 THE CALICUT ADARSHA SANSKRIT
VIDYAPEETHA, REPRESENTED BY CHAIRMAN,
CALICUT ADARSHA SANSKRIT VIDYAPEETHA,
BALUSSERY P.O.,KOZHIKODE DISTRICT-683 612.
3 RASHTRYA SANSKRIT SANSTHAN REPRESENTED
BY THE REGISTRAR, RASHTRYA SANSKRIT SANSTHAN,
56-57, INSTITUTIONAL AREA, JANAKPURI,
NEW DELHI-110 058.
BY ADV. SMT.O.M.SHALINA
BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
BY ADV. SRI.N.M.MADHU,SC,RASHTRIYA SANKRI SD UT
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16-12-2019, ALONG WITH W.P(C).239/2013(D), THE COURT ON
20-12-2019 DELIVERED THE FOLLOWING:
W.P.(C) Nos.29684/2011 & 239/2013 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941
WP(C).No.239 OF 2013
PETITIONER:
JOSEPH THOMAS
AGED 59 YEARS
S/O. LATE V.V.THOMAS (LECTURER-RETIRED CALICUT
ADARSHA SANSKRIT VIDYAPEETHA, BALUSSERY), RESIDING
AT THRIKKAIPARAMBU, CIVIL STATION P.O., FLORICAN
ROAD, CALICUT 20.
BY ADVS.
SRI.P.V.MOHANAN
SRI.BIJU.P.N.
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF HUMAN
RESOURCES DEVELOPMENT, DEPARTMENT OF EDUCATION,
NEW DELHI-110005.
2 THE RASHTRIYA SANSKRIT SANSTHAN
REPRESENTED BY ITS REGISTRAR, RASHTRIYA SANSKRIT
SANSTHAN, 56-57, INSTITUTIONAL AREA, JANAKPURI,
NEW DELHI, PIN 115008.
3 THE CHAIRMAN
CALICUT ADARSHA SANSKRIT VIDYAPEETHA,
BALUSSERY P.O., KOZHIKODE DISTRICT, PIN 673612.
BY ADV. SMT.O.M.SHALINA
BY ADV. SRI.N.M.MADHU,SC,RASHTRIYA SANKRI SD UT
BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
BY ADV. SRI.N.M.MADHU,SC,RASHTRIYA SANKRI SD UT
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16-12-2019, ALONG WITH WP(C).29684/2011(I), THE COURT ON
20-12-2019 DELIVERED THE FOLLOWING:
W.P.(C) Nos.29684/2011 & 239/2013 3
J U D G M E N T
Captioned writ petitions are filed by one and the same petitioner basically seeking direction commanding the respondents to grant scale of pay/promotion to the petitioner as per UGC scale/scheme and therefore, I heard them together and propose to pass this common judgment. For the disposal of the writ petitions, the facts and documents available in W.P.(C) No.29684/2011 are relied upon. Brief material facts for the disposal of the writ petition are as follows;
2. Petitioner is a Post Graduate in Malayalam and History and has also a B.Ed degree. He commenced service as Lecturer (Malayalam) Part-time on 26.1.1981 and engaged to take classes in History and Malayalam for 16 periods in a week. According to the petitioner, he was selected for the post of Lecturer in terms of the notification dated 28.9.1982 based on relaxed standard, but treated as Junior Lecturer as per Exts.P2 and P3 orders. Petitioner was engaged 24 hours per week and worked as Full-time Lecturer. However, his claim for re-designation as Lecturer was not considered as temporary ban for creation of posts was in existence. W.P.(C) Nos.29684/2011 & 239/2013 4 Though the ban was lifted, no further action was taken and thereby similarly placed teacher in part- time post viz., Smt.Sathyavathy was re-designated as Lecturer and granted UGC scale. It is the case of the petitioner that, service conditions and scale of pay applicable to teachers working in Kerala Collegiate Education service were extended to the teachers of the 2nd respondent, which is an institution functioning as per the grant in aid of the 3 rd respondent i.e., the Rashtriya Sanskrit Sansthan, New Delhi.
3. As per Government Order dated 27.3.1990, UGC scale/scheme are extended to the teachers governed by the Kerala Collegiate Education service w.e.f. 1.1.1986. As per Government Order dated 25.3.1991, Junior Lecturer included under the UGC scale are re- designated as Lecturer after two years of service or on 1.7.1988, whichever is earlier. It is also pointed out that, UGC scheme was extended to the teachers of 2nd respondent by order dated 30.9.1993. Therefore, according to the petitioner, petitioner was entitled to get the scale of pay of Lecturer i.e., Rs.2,200 - W.P.(C) Nos.29684/2011 & 239/2013 5 4,000, Lecturer Senior Scale i.e., Rs.3,000-5,000 and Lecturer Selection Grade i.e., Rs.3,700- 5,700. Accordingly, petitioner filed O.P.No.435/1993 seeking fixation of pay. Since the petitioner was denied the benefits with ill motive, proceedings was initiated against the Principal and an enquiry was ordered. Anyhow O.P.No.435/1993 was disposed of directing to take action in the matter of fixation of pay. The application for option for fixation of UGC scale is rejected by the Principal as per order dated 28.2.2001 stating that there is a ban in creation and upgradation of post.
4. Aggrieved by the same, petitioner filed O.P.No.2922/2002. In terms of interim order passed by this Court in the said original petition dated 7.3.2003 in CMP No.50645/2002, the Government of India as per proceedings dated 5.12.2003 ordered that the benefits has to be granted, if the State Government has adopted UGC scale. So also as per Ext.P11 judgment of this court in W.A.No.2542/1999, an expert committee was set up and the claim of scale of pay of the petitioner was included in terms of W.P.(C) Nos.29684/2011 & 239/2013 6 reference. Thereafter, O.P.No.2922/2002 is disposed of directing the Committee to consider the claim of the petitioner and pass appropriate orders within six months. According to the petitioner, the expert committee as per Ext.P16 decision declared that, petitioner is eligible for placement as Junior Lecturer, Senior Lecturer and Selection Grade Lecturer in the scale of pay of Rs.2200-4000 as on 1.1.1986, senior scale of Rs.3000-5000 as on 6.12.1990 and Lecturer Selection Grade, Rs.12000- 18300 from 1.1.1996. Case of the petitioner is that, however, no final orders is passed on the basis of Ext.P16. Therefore, seeks the following reliefs:
A. To issue a writ of mandamus, order or direction commanding the respondents to grant the scale of pay/promotion to the petitioner in the University Grants Commission Scale/Scheme as shown below with all consequential benefit:
1. Promotion as Lecturer (Rs.2,000-4,000) as on 1.1.1986.
2. Promotion to the post of Senior Lecturer (Rs.3,000-5,000) as on 6.12.1990.
3. Promotion to the post of Selection Grade Lecturer in the scale of pay of Rs.12,000-
18300 effective from 1.1.1996.
B. To issue a writ of mandamus, order or W.P.(C) Nos.29684/2011 & 239/2013 7 direction commanding the respondent to fix pension/terminal benefits of the petitioner after fixing the scale of pay as referred to above in prayer A under University Grants Commission scale and to disburse the arrears of pension with effect from 1.11.2007 with interest at the rate 12% per annum from the date of due till the date of actual disbursement.
C. To issue a writ of mandamus, order or direction commanding the respondents to pay arrears of pay consequent on fixation of pay as claimed in prayer No.A. D. Any other appropriate order or direction as this Hon'ble Court deem fit in the interest of justice.
5. Third respondent has filed a detailed counter affidavit refuting the claims and demands raised by the petitioner. Among other contentions, it is stated that, the post of Lecturer in Malayalam and History was advertised in the pay scale of Rs.700-25-30-890- 35-1030-40-1270 before obtaining sanction from the Government of India. The Government of India did not give sanction for the post of Lecturer but gave sanction for the post of Junior Lecturer in the scale of pay of Rs.470-830 as per Ext.P2. Petitioner was W.P.(C) Nos.29684/2011 & 239/2013 8 interviewed for the post of Lecturer in Malayalam and History, however, he was appointed as Junior Lecturer alone w.e.f. 1st December, 1982 in the pay scale as specified above, evident from Ext.P3. Petitioner was not recommended by the Government of India to be appointed as Lecturer. The rules and regulations were framed by the 2nd respondent i.e., the Calicut Adarsh Sanskrit Vidyapeetha, Balussery as per the directions of this court in O.P.No.2694/1998 and forwarded to the 3rd respondent for approval. The rules and regulations were not approved because the rules and regulations were in contravention to the rules of the scheme of Adarsh Sanskrit Mahavidyalaya/Shodha Sansthans.
6. It is further stated that, petitioner cannot be given the benefit of Lecturer because petitioner is not having requisite qualification for the post of Lecturer as per the UGC guidelines. Even though petitioner has submitted a representation in 1983 seeking re-designation and fixation of scale of pay for his post as that of Lecturer, it was returned by the Government of India and the Principal of W.P.(C) Nos.29684/2011 & 239/2013 9 Vidyapeetha on 24.11.1988 because there was no sanctioned post of Lecturer and there was a ban for creation of new post of Lecturers and others. Petitioner had also submitted representations for grant of pay of Lecturer but his request was not considered because there was no post of Lecturer in Malayalam and History sanctioned by the Government of India. Anyhow, pay of the petitioner was fixed in the pay scale of Rs.1740-3000, which was the pay scale of Junior Lecturer in the UGC scale. So also it is stated that, since the petitioner did not fulfil the requirement for the post of Lecturer, his request for granting pay scale of Lecturer w.e.f.1.1.1986 and senior scale from 6.2.1990 and the selection grade were not granted. Moreover, since there was no sanctioned post of Lecturer in Malayalam and History, the Government of India allowed the petitioner to be appointed as Junior Lecturer in Malayalam and History.
7. In fact the petitioner's request for promotion to the post of Lecturer was placed in the meeting of Board of Management held on 12.7.2004 and the Board W.P.(C) Nos.29684/2011 & 239/2013 10 of Management examined the matter in detail and found that, petitioner did not fulfil the prescribed qualification when his case was considered at the time of appointment in December, 1982 nor does he now fulfil the minimum requisite qualification prescribed for the post of Lecturer as per UGC Norms. The Board of Management, therefore, decided that they cannot compromise with respect to the academic excellence and standards by diluting the eligibility criteria and qualification prescribed by the UGC for the post of Lecturer. Therefore, the Board of Management could not consider the request of the petitioner.
8. It is also pointed out that, Smt.Sathyavati was granted the pay scale of Rs.2200-4000 UGC scale w.e.f.8.9.19986 because she fulfilled the requisite qualification for the post of Lecturer. It is also pointed out that, the UGC scale as Lecturer w.e.f. 1.1.1986 and Lecturer Senior scale w.e.f. 1996 and Lecturer Selection Grade on completion of 16 years of service could not be given to the petitioner because petitioner had not secured at least 55% marks at W.P.(C) Nos.29684/2011 & 239/2013 11 Master level and moreover, there was no sanctioned post of Lecturer Malayalam and History in Calicult Adarsh Sanskrit Mahavidyalaya. Therefore, the sum and substance of the contention put forth by the 3 rd respondent is that, petitioner is not entitled to get any relief as is sought for in the writ petition.
9. I have heard learned counsel for petitioner, learned counsel appearing for 3rd respondent and perused the pleadings and documents on record.
10. The discussion of facts made above would make it clear that, petitioner was appointed as per Ext.P3 only as a Junior Lecturer. Petitioner could not be provided with the UGC scale of pay since petitioner did not fulfil the required qualification as is prescribed in terms of UGC regulations. Petitioner was also not entitled to get the privilege of completion of 16 years as per the UGC guidelines since petitioner did not have minimum 55% marks. In fact as per the directions issued by this court, the matter was considered by the Board of Management elaborately and found that, the benefits of UGC regulations cannot be extended to the petitioner W.P.(C) Nos.29684/2011 & 239/2013 12 since there was no post created in the 2nd respondent institution for Lecturer and the petitioner was not qualified to be appointed as Lecturer. It is also clear that, the issue with respect to 16 years privilege was also considered by the Board of Management, however, petitioner could not be provided with the same since petitioner did not have 55% minimum marks.
11. Taking into account all these aspects, I do not think, petitioner has made out any case justifying interference of this court under Article 226 of the Constitution of India since petitioner was not a qualified person to secure the reliefs as per the UGC regulations. Therefore, writ petition fails, accordingly it is dismissed.
12. So far as W.P.(C)No.239/2013 is concerned, the relief sought for by the petitioner is to re- induct the petitioner as Lecturer in History and Malayalam in the 2nd respondent institution and to permit the petitioner to continue till he attains the age of 65 years on the basis of revised scheme of the 3rd respondent. However, fact remains petitioner W.P.(C) Nos.29684/2011 & 239/2013 13 retired from service on 31.10.2007 and petitioner is not entitled to get the benefit of the revised new scheme issued by the 3rd respondent since it has come into force only w.e.f.29.6.2013. Therefore, the relief sought for in this writ petition also has no sustenance. Accordingly the said writ petition is dismissed.
Sd/-
SHAJI P.CHALY
Smv JUDGE
18.12.2019
W.P.(C) Nos.29684/2011 & 239/2013 14
APPENDIX OF WP(C) 29684/2011
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION DATED
28/09/1982.
EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.F.30-
8/82SK-I DATED 21/01/1983.
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS NO.CASV/337/82
DATED 04/02/1983.
EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS DATED
25/03/1991.
EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS NO.F.30-
6/92SK-I (VOL.II) DATED 30/09/1993. EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN OP NO.435/1993 DATED 09/10/2000.
EXHIBIT P7 TRUE COPY OF THE OPTION STATEMENT DATED 19/02/2001.
EXHIBIT P8 TRUE COOPY OF THE PROCEEDINGS NO.CASV/449/2000 DATED 28/02/2001. EXHIBIT P9 TRUE COPY OF THE INTERIM ORDER IN CMP NO.50645/2002 IN OP 2922/2002 DATED 07/03/2003.
EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS NO.F.24- 6/2002-SKT-I DATED 05/12/2003.
EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER IN WPC NO.33891/2007 DATED 17/07/2008.
EXHIBIT P12 TRUE COPY OF THE JUDGMENT IN WPC NO.33891/2007 DATED 26/08/2008.
EXHIBIT P13 TRUE COPY OF THE PROCEEDINGS SETTING UP OF THE COMMITTEE DATED 18/10/2008.
EXHIBIT P14 TRUE COPY OF THE JUDGMENT IN OP NO.2922/2002 DATED 25/03/2009.
EXHIBIT P15 TRUE COPY OF THE REPRESENTATION DATED 20/02/2010.
EXHIBIT P16 TRUE COPY OF THE TRUE EXTRACT OF THE REPORT DATED 13/12/2009 SUBMITTED BY DR. SARALA, W.P.(C) Nos.29684/2011 & 239/2013 15 PRINCIPAL (RETIRED), GOVERNMENT SANSKRIT COLLEGE, TRIPUNITHURA TO THE CHAIRMAN, CALICUT ADARSHA SANSKRIT VIDYAPEETHA. EXHIBIT P17 TRUE COPY OF THE REPRESENTATION DATED 20/12/2010.
EXHIBIT P18 TRUE COPY OF THE GO DATED 27/03/1990. EXHIBIT P19 TRUE COPY OF THE REGULATION. EXHIBIT P20 TRUE COPY OF THE ORDER GO(RT) NO.1725/94/H.EDN. DATED 16/11/1994. EXHIBIT P21 TRUE EXTRACT OF THE DECISION OF THE MEETING HELD ON 17/09/1982 AND 03/08/1989.
EXHIBIT P22 TRUE COPY OF THE LETTER DATED 22/10/1986. EXHIBIT P23 TRUE EXTRACT OF THE RECOMMENDATION OF KERALA PAY COMMISSION.
W.P.(C) Nos.29684/2011 & 239/2013 16APPENDIX OF WP(C) 239/2013 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN WA NO.431/1990 DATED 26.06.1991 EXHIBIT P2 TRUE COPY OF THE LETTER NO.F.30-19/88 - SK-
1 DATED 6.07.1993 ALONG WITH SCHEME.
EXHIBIT P3 TRUE COPY OF THE COMMON INTERIM ORDER IN WP(C) 34043/2006 DATED 17.07.2008 AND OTHER CONNECTED CASES.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WPC NO.
34043/2006 DATED 26.08.2008 EXHIBIT P5 TRUE COPY OF THE ORDER IN R.P.NO.53/2010 IN WPC NO. 34043/2006 DATED 20.7.2010 EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WPC NO.34043/2006 DATED 15.06.2011 EXHIBIT P7 TRUE COPY OF THE ORDER IN IA 635/2012 IN WPC NO. 34043/2006 DATED 30.03.2012. EXHIBIT P8 TRUE COPY OF THE REVISED SCHEME FRAMED BY THE 2ND RESPONDENT WHICH CAME INTO EFFECT FROM 29.06.2012.
EXHIBIT P9 TRUE COPY OF THE MINUTES OF THE MANAGING COMMITTEE OF 3RD RESPONDENT DATED 22.09.2012.
EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 22.08.2011.
EXHIBIT P11 TRUE COPY OF THE ORDER F.NO.CASV/32/10 ISSUED BY THE CHAIRMAN DATED 22.10.2012.
EXHIBIT P12 TRUE COPY OF THE LETTER F.NO.CASV/32/10/3456 DATED 25.10.2012. EXHIBIT P13 TRUE COPY OF THE ORDER NO.RSKS/A2/35011/05-
06/2807 DATED 30.10.2012 EXHIBIT P14 TRUE COPY OF THE ORDER NO.RSKS/ADARSH/35014/MC/1/96-97/2955 DATED 08.11.2012.
EXHIBIT P15 TRUE COPY OF THE ORDER F.NO.1-19/2006-U-II DATED 23.03.2007 W.P.(C) Nos.29684/2011 & 239/2013 17 W.P.(C) Nos.29684/2011 & 239/2013 18