IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WP(C).No. 8968 of 2009(M) --------------------------------------- PETITIONER(S): -------------------------- 1. DR.V.SOBHA, PROFESSOR AND HEAD OF THE DEPARTMENT OF ENVIRONMENTAL SCIENCES,UNIVERSITY OF KERALA, KARIAVATTOM.PO, THIRUVANANTHAPURAM-695 581. 2. DR.T.DEVARAJAN, PROFESSOR AND HEAD OF THE DEPARTMENT OF SANSKRIT, UNIVERSITY OF KERALA, KARIAVATTOM.PO,THIRUVANANTHAPURAM-695 581. BY ADV. MR.ELVIN PETER P.J. RESPONDENT(S): ---------------------------- 1. UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR,PALAYAM, THIRUVANANTHAPURAM. 2. THE REGISTRAR,UNIVERSITY OF KERALA, PALAYAM,THIRUVANANTHAPURAM. 3. DR.V.R.PRAKASAM, PFORESSOR,DEPARTMENT OF ENVIRONMENTAL SCIENCES,UNIVERSITY OF KERALA, KARIAVATTOM.P.O,THIRUVANANTHAPURAM. 4. DR.P.SYAMALA DEVI, PROFESSOR, DEPARTMENT OF SANSKRIT,UNIVERSITY OF KERALA, KARIAVATTOM.PO, THIRUVANANTHAPURAM-695 581. R1 & R2 BY ADV. MR.M.RAJAGOPALAN NAIR, SC, KERALA UTY. R4 BY MR. O.V.RADHAKRISHNAN, SENIOR ADVOCATE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2009 ALONG WITH WPC.NO.8352 OF 2009 AND WPC.NO.9300 OF 2009, THE COURT ON 23/06/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.8968/2009 M APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE AMENDMENT TO THE STATUE ISSUED AS PER NOTIFICATION DTD. 22/11/2008. P2: COPY OF THE ORDER G.O. DTD. 14/03/2008 ISSUED BY THE GOVERNMENT. P3: COPY OF THE ORDER DTD. 22/07/2008 IN WPC.NO.13641/2008 OF THIS HON.COURT. P4: COPY OF THE ORDER G.O. DTD. 4/11/2008 ISSUED BY THE GOVERNMENT. RESPONDENT'S EXHIBITS: R2(A): COPY OF THE REPRESENTATION FROM THE GENERAL SECRETARY, FEDERATION OF UNIVERSITY TEACHERS ASSOCIATIONS, KERALA ON ROTATION OF HEADSHIP IN THE UNIVERSITIES. R4(A): COPY OF THE UNIVERSITY ORDER NO.AD.A.1/309/99 DTD.19/03/2009. R4(B): COPY OF THE ORDER DTD. 24/02/2009 IN COMPLAINANT NO.534 OF 2008 ON THE FILE OF THE KERALA LOK AYUKTA. R4(C):COPY OF THE NOTIFICATION NO.GAI/F1/1/2001 DTD. 08/12/2003 PUBLISHED IN THE KERALA GAZETTE DTD. 27/01/2004. R4(D): COPY OF THE UNINVERSITY ORDER NO.AD.D.II.3.3827/'92 DTD. 13/10/1998. /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.8352/09-L, 8968/09-M & 9300 of 2009-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of June, 2009. JUDGMENT All these three writ petitions raise a common issue and therefore they are disposed of by a common judgment. Writ Petition No.8968/2009 is taken as the leading case. 2. The petitioners herein are challenging the amendment to Statute 18 of the Kerala University First Statutes, 1977, produced as Ext.P1. Under the unamended provision, the petitioners have been nominated as Head of the Departments concerned by the Syndicate. Going by the provisions of Statute 18, the seniormost Professor has to be nominated as the Professor in Charge of the Department. The petitioners in the three writ petitions have been thus nominated and they are continuing as Heads of the Department concerned. It is pointed out that under Statute 19, the Heads of Departments are conferred with various administrative and financial powers. It is thus contended that the post of Head of the Department is a statutory post created by the Statutes and it is vested with various administrative, disciplinary and supervisory powers including academic works. All the other Readers, wpc 8352/09, 8968/09 & 9300/09 2 Lecturers and other members of the teaching staff have to work under the directions of the Head of the Department. Therefore, seniority has been given due reckoning while nominating the Head of the Department. Accordingly, it is contended that the same is a promotion post, even though there is no difference in the scale of pay sanctioned to the post of Professor and Head of the Department. 3. As per the amendment brought out by Ext.P1, the Head of the Department shall be nominated on a rotation basis for three years starting with the seniormost teacher of the Department. It is therefore contended that the seniormost Professor will have to work under a junior after the stint of three years. Therefore, the amendment is attacked as unreasonable, arbitrary and discriminatory and hence violative of Article 14 of the Constitution. It is submitted that the vested right of the petitioners to continue as Heads of the Department cannot be curtailed by such an amendment. 4. Heard learned counsel for the petitioners Shri Elvin Peter, Shri O.V.Radhakrishnan, learned Senior Counsel for the 4th respondent in W.P. (C) No.8968/2009, Shri T.A. Unikrishnan for the third respondent and Shri M. Rajagopalan Nair, learned Standing Counsel for the University and wpc 8352/09, 8968/09 & 9300/09 3 learned Govt. Pleader. 5. Learned counsel for the petitioners relied upon the principles stated by the Apex Court in State of Rajasthan v. Fateh Chand Soni (1996 (1) SLR 1 and A.P. State Electricity Board v. R. Parthasarathi and others (1998) 9 SCC 425) to contend for the position that going by the unamended Statute 18, many administrative, disciplinary and supervisory powers, responsibilities and duties are attached to the post of Head of the Department. It is therefore contended that the same is clearly by way of promotion in accordance with the seniority. The violation of the concept of seniority thus results in arbitrariness and the provisions of Articles 14 and 16 are therefore breached. It is contended that the petitioners have acquired a vested right to continue as Heads of the Department concerned till their retirement and the said right cannot be taken away by the amendment. Learned counsel for the petitioners alternatively contended that even going by the present amendment, the Head of the Department shall be nominated on a rotation basis for three years starting with the seniormost teacher of the Department. Therefore, the Syndicate cannot nominate other teachers since the petitioners are the seniormost teachers. 6. Shri O.V. Radhakrishnan, learned Senior Counsel appearing for wpc 8352/09, 8968/09 & 9300/09 4 the 4th respondent submitted that in the process of nomination of a Professor as Head of the Department, there is no selection or promotion. It is not at all a promotion post. Different cadres have been provided under the Act and the Statutes for promotion and the post of Head of the Department is not one created for granting a promotion. Therefore, it is submitted that nomination of a Professor as the the Head of the Department, does not result in creation of a separate cadre from that of the Professor. It is not an advancement to a higher grade so as to invite the concept of promotion. No higher scale is provided and the person nominated does not acquire a lien also. There is no substantive appointment to any permanent post. Herein, only by the amendment, a tenure is provided for the Head of the Department. It is a reasonable provision. In all other Universities, similar provisions have been adopted. By providing a tenure, others are also benefited and therefore the concept of adequate representation to every one cannot be assailed, as the said method provides a proper democratic process. Ext.R4(a) is an order issued by the University dated 19.3.2009 pursuant to the decision of the Syndicate in its meeting held on 22.1.2009, nominating various Heads of the Departments. It is pointed out that Ext.R4(a) is not under challenge in this writ petition. Therein, the Syndicate has decided wpc 8352/09, 8968/09 & 9300/09 5 that the Heads of the Departments who have completed three years of service will not be entitled to continue further. Ext.R4(b) is the order passed by the Lok Ayuktha in complaint No. 534/2008 wherein the amendment sought to be challenged before the Lok Ayuktha was rejected. 7. Shri Rajagopalan Nair, learned Standing Counsel appearing for the University submitted that the amendment is preceded by a proper deliberation in academic circles. It is pointed out that by Ext.R2(a) the Federation of University Teachers Association submitted a representation to the Governor to introduce the principle of rotation as in the case of the other Universities. It is pointed out that the same was placed in the meeting of the Syndicate on 24.3.1999 and the Committee has thereafter taken a decision to carry the proposed amendment. The meeting of the Teachers’ Grievance Cell also recommended that the matter may further be examined. A thorough study was conducted by a committee consisting of two members of the Syndicate. Various other steps taken are also explained in the counter affidavit. It is further pointed out that the Vice Chancellor convened a meeting of Heads of Departments on 8.1.2008 and they have approved the amendment. Accordingly, the Syndicate after considering the minutes of the meeting placed the amendment before the Senate and the wpc 8352/09, 8968/09 & 9300/09 6 amendment was approved on 26.3.2008. It is pointed out that the post of Head of the Department is not a promotion post as in the case of Selection Grade Lecturer or Reader or Professor. In many of the departments in the University there are more than one Professors and when the nomination is confined to the seniormost alone, the other Professors who are in equal status, are being denied the privilege of being the Head of Department. It is pointed out that the same is not arbitrary, as contended. 8. A reading of Statute 18 as unamended shows that the idea involved by nominating the seniormost Professor to be in charge of a department is not at all by way of a promotion. It is therefore clear that he is a caretaker of the department and its activities. There is no appointment involved as there is no promotion post of the Head of Department. It cannot be said that the other teachers are subordinate to the Head of the Department. No disciplinary powers are also conferred, in respect of teachers. It is not disputed that no higher scale of pay is also provided. As rightly contended by the respondents, the concept of seniority as such is not given a go-bye by the amendment also. Going by the amended provision, the nomination shall be on a rotation basis for three years starting from the seniormost teacher of the department. After the tenure of the seniormost the wpc 8352/09, 8968/09 & 9300/09 7 next seniormost Professor has to be nominated. Thus, a turn is implemented by considering the inter-se seniority. Therefore, the argument raised by the learned counsel for the petitioners that the concept of seniority is given a go-bye and that there is violation of Article 14 of the Constitution cannot be accepted. 9. I will examine the petitioners have acquired the status of the Heads of Department by way of promotion. Learned counsel for the petitioners heavily relied upon the principles stated in State of Rajasthan v. Fateh Chand Soni [1996 (1) SLR 1] in support of the above plea. In para 8 the meaning of the word ‘promotion’ has been explained in the following terms: “In the literal sense the word “promote” means “to advance to a higher position, grade, or honour”. So also “promotion” means “advancement or preferment in honour, dignity, rank, or grade.” “Promotion” thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In Service law also the expression “promotion” has been understood in the wider sense and it has been held that “promotion” can be either to a higher pay scale or to a higher post.” The facts of the case show that the relevant rules therein contemplated appointment to the post in the selection scale by way of promotion. 10. Herein, the provision namely Statute 18 does not show that it is wpc 8352/09, 8968/09 & 9300/09 8 by way of promotion. The post of Head of Department is not created by promoting any seniormost Professor to that post. No particular qualifications have been prescribed for promotion. Other relevant criteria and procedure for promotion are also absent. Thus, obviously the dictum laid down above will not apply to the facts of this case. In Union of India and another v. S.S. Ranade {(1995) 4 SCC 462}, it was held in para 11 as follows: “In order to decide whether a post is either equivalent or is higher or lower than another post, one cannot look only at the pay scale for that post. One must also look at the duties and responsibilities that are attached to such posts.” It is therefore contended by the learned counsel for the petitioners that since Statute 19 confers various duties and responsibilities, actually what is involved is a promotion. The argument that was considered in the said case was that the post of Commandant (Selection Grade) is a rank higher than that of Commandant, and hence the retirement age is 58. It was found that creation of a selection grade is in the same post. The principle stated in A.P. State Electricity Board's case {(1998) 9 SCC 425) does not apply to the petitioners in these writ petitions. 11. Learned Senior Counsel Shri O.V. Radhakrishnan, relied upon wpc 8352/09, 8968/09 & 9300/09 9 the principles stated by the Apex Court in The State of Assam v. Ranga Muhammed and others (AIR 1967 SC 903), Chairman, Railway Board and others v. C.R. Rangadhamaiah and others {(1997) 6 SCC 623) and Union of India and others v. Rubi Mazumdar {(2008) 9 SCC 242} to contend that actually there is no promotion involved while nominating a Head of the Department. In the first one of the decisions, the word 'posting' in Article 233 of the Constitution of India was explained. On the interpretation of the said Article, it was held that the said word occurs in association with the words 'appointment' and 'promotion' and takes its colour from them. Herein, there is no word like 'appointment' or 'promotion' in Statute 18. What is mentioned is the power of the Syndicate to nominate a Head of the Department. In Chairman, Railway Board's case {(1997) 6 SCC 623}, the concept of accrued right and vested right was explained. It was held in para 24 thus: “In many of these decisions the expressions “vested rights” or “accrued rights” have been used while striking down the impugned provisions which had been given retrospective operation s as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc. of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and wpc 8352/09, 8968/09 & 9300/09 10 thereby taking away the benefits available under the rule in force at that time. It has been held that such a amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution.” While considering the question of violation of Articles 14 and 16 of the Constitution, it was held in para 20 thus: “It can, therefore, be said that a rule which operates in futuro so as to govern future rights of those already in service cannot be assailed on the ground of retroactivity as being violative of Articles 14 and 16 of the Constitution, but a rule which seeks to reverse from an anterior date a benefit which has been granted or availed of, e.g. promotion or pay scale, can be assailed as being violative of Articles 14 and 16 of the Constitution to the extent it operates retrospectively.” It is pointed out that the amendment herein is not having any retrospective operation and the question of affecting any vested right of the petitioners does not arise. It is therefore contended that the amendment is not violative of Articles 14 and 16 of the Constitution. 12. It is clear from the above dictum that the concept of vested rights has been made applicable in the matter of promotion, seniority and wpc 8352/09, 8968/09 & 9300/09 11 substantive appointment of employees. Here, what is involved is not a promotion in accordance with seniority. There is no substantive appointment of the person nominated as Head of the Department. In that view of the matter, the argument raised by the learned counsel for the petitioners that the amendment affects the vested right of the petitioners and hence the same is violative of Articles 14 and 16 of the Constitution, cannot be accepted. 13. Shri Elvin Peter, learned counsel for the petitioners further submitted that since the seniormost teachers have to work under a junior in the Department, clearly the same amounts to discrimination. Going by the idea behind the amendment, as explained in the counter affidavits, it is mainly intended to provide opportunity to various others who are also in the rank of Professors, etc. Presently, the nomination is on a rotation basis and starts with the seniormost teacher. Of course, a tenure is fixed to work as the Head of the Department. Since no promotion is involved, the argument that a senior is compelled to work under a junior, cannot hold good. It is clear from the counter affidavits that in other Universities, similar provisions have been introduced. Deliberations have been made by various bodies including Heads of Departments. The principle that emerges from wpc 8352/09, 8968/09 & 9300/09 12 Statute 18 is a salutary one. In that view of the matter also, and having regard to the object and purport of the amendment, this court will not be justified in sitting in appeal over the wisdom of the various academic bodies in effecting the amendment. As none of the rights of the petitioners is affected adversely, as held already, there is no unconstitutionality in the matter. 14. In Union of India's case {(2008) 9 SCC 242}, the meaning of the word 'promotion' was explained. It was held thus in paragraphs 31 and 32: “In legal parlane, upgradation of a post involves transfer of a post from lower to higher grade and placement of the incumbent of that post in the higher grade. Ordinarily, such placement does not involve selection but in some of the service rules and/or policy framed by the employer for upgradation of posts, provision has been made for denial of higher grade to a employee whose service record may contain adverse entries or who may have suffered punishment. The word “promotion” means advancement or preferment in honour, dignity, rank, grade. Promotion thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law, the word “promotion” has been understood in wider sense and it has been held that promotion can be either to a higher pay scale or to a higher post.” wpc 8352/09, 8968/09 & 9300/09 13 Hence, promotion can be either to a higher pay scale or to a higher post. But herein, those two elements are absent. 15. Therefore, the challenge against Ext.P1 fails. It cannot be said that the vested right of the petitioners is affected by the amendment. The petitioners were only nominated to be Head of the Department by the Syndicate. They were never promoted to the post of Head of the Department, they have not acquired a higher status or a higher scale of pay or accommodation in a higher post and did not acquire a lien. In that view of the matter, the amendment cannot be faulted. 16. Then the other question is whether the decision in Ext.R4(a) taken by the Syndicate is in tune with the amendment. Of course, Ext.R4(a) is not under challenge directly in these writ petitions. But since, the amendment itself is challenged and Ext.R4(a) being consequential, the same is immaterial. Going by Ext.R4(a), the Head of Departments who have completed three years, are not liable to continue. It is vehemently argued by the learned counsel for the petitioners that the amendment can be implemented only by conferring the first three years tenure to the seniormost teachers, as envisaged in the amendment itself. It is therefore submitted that the petitioners should have been nominated. This contention wpc 8352/09, 8968/09 & 9300/09 14 is vehemently opposed by the learned counsel for the respondents. 17. It is clear that the amendments have been introduced while the petitioners have already been nominated as Heads of the Departments. Going by the amendment, a three years tenure is fixed. The purpose of the amendment, admittedly, is to give opportunity to others in the Department. It will have to be implemented on a rotation basis. True that the rotation starts with the seniormost. Herein, the seniormost has already been nominated as Head of the Department under the unamended Statute 18. Once the amendment is held as valid, its impact will be there on the Heads of Departments functioning as such on the date of effect of the amendment. If that be so, persons who have already completed three years cannot continue. If, as contended by the learned counsel for the petitioners, they are to be nominated afresh, then the basic idea of the amendment itself is defeated. For a harmonious construction of the entire scheme, the object and purport of the amendment has to be gone into. Therefore, wherever the seniormost has already completed a three years term, the nomination has to go by the terms of Ext.R4(a) itself. Therefore, Ext.R4(a) cannot be faulted at all. In Ext.R4(a) it is made clear that the Heads of the Departments who have not completed three years, are eligible to continue as such upto three wpc 8352/09, 8968/09 & 9300/09 15 years. 18. Going by the amended Statute 18, the re-nomination of the seniormost teachers who have already completed the three year term, is not contemplated. Otherwise, it would have been made clear under the amended provision itself. In that view of the matter also, the contention that the seniormost teachers are entitled to have a fresh nomination, irrespective of the completion of three years period, cannot be accepted. Therefore, the writ petitions are devoid of any merit and hence they are dismissed. (T.R. Ramachandran Nair, Judge.) kav/