Kerala High Court
Mesiah Das J vs State Of Kerala on 2 March, 2021
Author: Anu Sivaraman
Bench: Anu Sivaraman
WP(C).No.28779/2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942
WP(C).No.28779 OF 2020(V)
PETITIONER:
1 MESIAH DAS J.,
AGED 55 YEARS
JOINT REGISTRAR, APJ ABDUL KALAM TECHNOLOGICAL
UNIVERSITY CET CAMPUS P.O., SREEKARIYAM,
THIRUVANANTHAPURAM-695 016
2 PRAVEEN.R.,
SECTION OFFICER, APJ ABDUL KALAM TECHNOLOGICAL
UNIVERSITY CET CAMPUS P.O., SREEKARIYAM,
THIRUVANANTHAPURAM-695 016
BY ADVS.
DR.K.P.SATHEESAN (SR.)
SRI.P.MOHANDAS (ERNAKULAM)
SRI.K.SUDHINKUMAR
SRI.S.K.ADHITHYAN
SRI.SABU PULLAN
SRI.GOKUL D. SUDHAKARAN
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER
EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001
2 APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY,
REPRESENTED BY ITS REGISTRAR,CET CAMPUS P.O.,
SREEKARIYAM, THIRUVANANTHAPURAM-695 016
3 THE SYNDICATE,
REPRESENTED BY THE EX OFFICO SECRETARY (REGISTRAR,
APJ ABDUL KALAM TECHNOLOGICAL
UNIVERSITY CET CAMPUS P.O.,
SREEKARIYAM,
THIRUVANANTHAPURAM-695 016.
WP(C).No.28779/2020
2
4 THE REGISTRAR,
APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY CET CAMPUS
P.O., SREEKARIYAM, THIRUVANANTHAPURAM-695 016
GOVERNMENT PLEADER SMT.NISHA BOSE
R2-4 BY ADV. SRI.ELVIN PETER P.J.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-
02-2021, THE COURT ON 02-03-2021 DELIVERED THE FOLLOWING:
WP(C).No.28779/2020
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JUDGMENT
Dated this the 2nd day of March 2021 The prayers in this writ petition are as follows :-
"i) to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext. P8 resolution passed by the 3rd respondent as Item No. S-016-003 at its Sixteenth meeting held on 16-11-2020 as patently erroneous and illegal;
ii) to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext. P9 order No. KTU/AR(ADMN)/2169/2017 dated 15-12-2020 issued by the 4" respondent as it is discriminatory and unsustainable;
iii) to issue a Writ of Mandamus or order or direction to respondents 3 and 4 to treat the promotion granted to the petitioner as regular and fix their seniority accordingly retaining their original seniority in the parent University.
iv) to issue a Writ of Mandamus or order or direction to the respondents 3 and 4 to invite fresh options in respect of the vacancies which arises after the commencement of the statute on 7-8-2020 and also only in respect of the vacancies excluding the vacancies meant for promotion of the persons who exercised option on the basis of the Act;
v) to declare that Chapter Ill Statute XXVIII of the First Statute of the APJ Abdul Kalam Technological University as ultra vires of the Act and hence unconstitutional;
vi) to declare that the petitioners are entitled to reckon their seniority from the date of exercising option and also for regular promotion and consequential benefits as provided under the Act;"
2. Heard the learned Senior Counsel appearing for the petitioners and the learned standing counsel appearing for the respondent-University.
WP(C).No.28779/20204
3. It is submitted that the 1st petitioner is presently working as Joint Registrar and the 2nd petitioner as Section Officer in the 2 nd respondent University. They were originally employees of the MG University and had exercised option for appointment in the 2 nd respondent University as per the provisions of Section 7 of the A.P.J. Abdul Kalam Technological University Act, 2015 (for short 'the Act').
4. The 1st petitioner was working as Assistant Registrar when he submitted options for coming over to the 2 nd respondent University. He was thereafter promoted as Deputy Registrar in the 2nd respondent University by Ext.P5 order. It is submitted that the said promotion was subsequently ratified by Ext.P6. Thereafter, he was again promoted as Joint Registrar by Ext.P7 order dated 06.12.2019. He is due to retire on 28.02.2021. It is stated that the 1st petitioner's probation in the post of Joint Registrar was not declared and the eligible increments were not given to him. In the meanwhile, it is contended that steps have been taken to invite fresh options from employees of other Universities included in the schedule to the Act and the 1st petitioner has been informed that the promotions made in the 2nd respondent University will be treated as provisional and the seniority of employees appointed by way of option will be fixed only after fresh options are received from eligible persons.
WP(C).No.28779/20205
5. It is contended that in the case of similarly situated employees, the probation in the post of Joint Registrar was declared and all due benefits had been granted, as is evident from Ext.P10. It is submitted that Ext.P11 First Statutes have now been promulgated and that fresh options are being invited to the posts physically occupied by the petitioners by which their seniority and promotion prospects are being prejudicially affected. The learned counsel for the petitioners would contend that the six months period from the date of issuance of the First Statutes is long past and that thereafter, no steps can be initiated to induct persons through fresh options in the light of the provisions of the First Statutes.
6. A counter affidavit has been placed on record on behalf of respondents 2 to 4. It is stated by the learned standing counsel that Section 7(3) of the Act, which is the substantial provision with regard to regular appointments in the University, specifies for appointments by option subject to the terms and conditions as may be prescribed. It is stated that Section 2(z) defines 'prescribed' as 'prescribed by Statutes, Ordinances and Regulations made under the Act'. It is stated that the First Statutes have been published on 05.08.2020. Statute 13 of Part II lays down that within six months from the date of coming into WP(C).No.28779/2020 6 force of the First Statutes, non teaching staff of the Universities who are included in the schedule to the Act shall be given a right to be appointed in the 2nd respondent University on the basis of their option. It is stated that after coming into force of the First Statutes, the University is bound to issue a notification giving opportunity to non teaching staff in the other Universities to come over. Statute 16 of the First Statutes specifically lays down the method of fixing the seniority of employees who have been appointed on the basis of option.
7. It is contended by the learned standing counsel for the University that Section 7(5) was only a provision which provided for filling up the necessary posts in the University by exercising an option and that the appointments as well as seniority of the employees who exercised the option was specifically subject to the prescriptions of the First Statutes as well as the Ordinances. It is further contended that no posts of Section Officers are included in the notification inviting options and therefore, the 2 nd petitioner can have no grievance with regard to the options. It is submitted that all promotions made after acceptance of options and coming over to the 2nd respondent University would necessarily be provisional in nature and subject to review in WP(C).No.28779/2020 7 terms of the Statutes which are the prescriptions as provided under Section 7(3).
8. It is further submitted that no adverse orders have been passed as against the petitioners as of now and since the petitioners have not challenged the First Statutes, they can have no contentions as against the invitation of options as well. It is contended that Statute 16 of Part IV specifically provides the criteria for deciding seniority of persons, who are already appointed by option and that the steps taken by the University are in strict conformity with the First Statutes. It is further contended that University will call for and consider the options from other employees as well, only in strict conformity with the provisions of the Statutes. The learned standing counsel also places reliance on a decision of this Court in W.P.(C).No.4319 of 2020 wherein by judgment dated 25.01.2021, the issue of fixation of seniority as per Statute 16 of Part IV vis a vis Section 7 of the Act had been considered. The learned standing counsel would also contend that this writ petition is premature and that the apprehensions of the petitioners are unfounded in the facts of the case.
WP(C).No.28779/20208
9. Having considered the contentions advanced, I immediately notice that the 2 nd petitioner does not appear to have any apprehension that the post which he is holding in the 2 nd respondent University on the basis of his option is being notified for options. To that limited extent, the 2 nd petitioner cannot maintain a challenge to options being called for from employees of other Universities to posts other than the one which he holds substantially. The contention apparently is that the fresh options being granted to employees of other Universities is likely to affect the rights of the petitioners herein. I find that the petitioners' options would remain unaffected by the fresh options being called for from other employees of the Universities. However, the promotions secured by the petitioners after coming over to the 2nd respondent would now be regulated by the provisions in the First Statutes. A rough translation of Statute 16 of the First Statutes would read as follows:
"REGARDING SENIORITY IN APJ ABDUL KALAM
TECHNOLOGICAL UNIVERSITY: The criteria for deciding
seniority of persons who already got appointment by option to various categories in APJ Abdul Kalam Technological University, before the coming into force of this statute or within 6 months of from the date of enactment of this statute, will be on the basis of their seniority in their parent universities in similar categories. Illustration : The date of seniority,in the seniority list for the WP(C).No.28779/2020 9 category of assistants, of a person 'X' in'A' University is 01.01.2019. The date of seniority, in the seniority list for the category of assistants, of a person 'Y' in 'B' University is 02.01.2019. If both of them get appointed, via option, to the vacancies in the post of assistant, A will be considered senior than B. If the seniority dates of both the persons are the same, the conditions in KS &SSR relating to similar situation will be made applicable."
No challenge has been raised by the petitioners to the First Statutes or any provisions therein. This Court in Ext.R2(f) judgment has held that a challenge against Ext.P8 appointment order dated 12.02.2020 was bound to fail on account of the fact that no challenge had been mounted against the First Statutes.
10. Having considered the contentions advanced on either side, I am of the opinion that the provisions of Section 7 of the Act specify that the appointments made by option are subject to the terms and conditions as may be prescribed. The subsequent prescription by the First Statutes permits the acceptance of fresh options as also the determination of seniority in the order of seniority of first appointment in the respective parent University. It is only when the exercise of fixation of seniority is complete that the question whether there is any deviation from the Statutes at the hands of the respondents can be considered.
11. Having considered the contentions advanced, I am of the opinion that the challenge against Exts.P8 and P9 cannot be sustained. The declaration sought for in the writ petition also WP(C).No.28779/2020 10 cannot be issued by this Court in the light of the specific provisions of the First Statutes. The writ petition, therefore, fails and the same is, accordingly, dismissed.
sd/-
ANU SIVARAMAN, JUDGE sj WP(C).No.28779/2020 11 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER G.O(MS) NO.1/2016/H.EDN DATED 1.1.2016 ISSUED BY THE 1ST RESPONDENT EXHIBIT P2 TRUE COPY OF THE GOVERNMENT ORDER G.O(MS) NO.174/2016/H.EDN DATED 6.8..2016 EXHIBIT P3 TRUE COPY OF THE NOTIFICATION NO.KTU/A/333/2016 DATED 11.08.2016 ISSUED BY THE 4TH RESPONDENT TO THE REGISTRARS OF ALL THE OTHER UNIVERSITIES EXHIBIT P4 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 19.07.2017 EXHIBIT P5 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 21.02.2018 EXHIBIT P6 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 10.04.2019 EXHIBIT P7 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 6.12.2019 EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF SIXTEENTH MEETING OF THE SYNDICATE CONTAINING RESOLUTION OF THE 3RD RESPONDENT HELD ON 16.11.2020 AS ITEMS NO.S-016-003 EXHIBIT P9 TRUE COPY OF THE ORDER NO.KTU/AR(ADMN) 2169/2017 DATED 15.12.2020 ISSUED BY THE 4TH RESPONDENT EXHIBIT P10 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 16.06.2020 EXHIBIT P11 TRUE COPY OF THE RELEVANT PAGES OF CHAPTER VII PART II STATUTE 13 OF THE APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY FIRST STATUE RESPONDENT'S EXHIBITS EXHIBIT R2(A) TRUE RELEVANT EXTRACT OF THE STATUTE 13 OF PART II OF THE FIRST STATUTE EXHIBIT R2(B) TRUE ENGLISH TRANSLATION OF EXT.R2(A) WP(C).No.28779/2020 12 EXHIBIT R2(C) TRUE COPY OF THE STATUE 16 CHAPTER 4 OF THE APJ ABDUL KALAM TECHNOLOGICAL UNIVERSITY FIRST STATUTE EXHIBIT R2(D) TRUE ENGLISH TRANSLATION OF EXT.R2(C) TRUE COPY PS TO JUDGE