IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 WA.No. 2519 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.23163/2008 Dated 12/08/2009 .................... APPELLANT(S): RESPONDENTS 1 AND 2 --------------------------------- 1. THE DEPARTMENT OF HIGHER EDUCATION, SECRERTARIAT, THIRUVANANTHAPURAM, REPRESENTED BY ITS PRINCIPAL SECRETARY. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. BY GOVT.PLEADER SRI.BENNY GERVASIS RESPONDENT(S): PETITIONER & RESPONDENTS 3 TO 11 ----------------------------------------------- 1. SIVARAJ.R, S/O. K.N. RAMAN UNNITHAN, KUNNIL HOUSE, SOORANAD NORTH.P.O, KOLLAM. 2. P.P. RAVI, SENIOR ART INSTRUCTOR IN SCULPTURE, COLLEGE OF FINE ARTS, THRISSUR. 3. M.J. JAMES, SR. ART INSTRUCTOR, RAJARAVIVARMA COLLEGE OF FINE ARTS, MAVELIKKARA - 690 101. 4. G. UNNIKRISHNAN, ART INSTRUCTOR, RAJARAVIVARMS COLLEGE OF FINE ARTS, MAVELIKKARA - 690 101. 5. K.N. SASIDHARAN, ART INSTRUCTOR, RAJARAVIVARMA COLLEGE OF FINE ARTS, MAVELIKKARA - 690 101. 6. S. RAVEENDRAN ACHARI, ART INSTRUCTOR, RAJARAVIVARMA COLLEGE OF FINE ARTS, MAVELIKKARA - 690 101. 7. R. SHAHNAVAS, ART INSTRUCTOR, RAJARAVIVARMA COLLEGE OF FINE ARTS, MAVELIKKARA - 690 101. 8. G. GOSH, ART INSTRUCTOR, COLLEGE OF FINE ARTS, THRISSUR - 680 020. 9. THE KERALA STATE PUBLIC SERVICE COMMISSION, TRIVANDRUM, REPRESENTED BY ITS SECRETARY. 10. THE UNIVERSITY OF KERALA, REP. BY ITS REGISTRAR. ADV. SRI.M.RAJAGOPALAN NAIR(R10) SRI.DEVAN RAMACHANDRAN(R1) ADV.SRI.G.HARIHARAN(R2 TO R6, R8) ADV.SMT.K.B.SAROJINI(R7) ADV.SRI.ALEXANDER THOMAS, R9. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20/01/2010, ALONG WITH WA NOS. 2112 & 2537 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------- W.A. Nos.2519, 2112 & 2537 of 2009 ---------------------------------------------- Dated 20th January, 2010. J U D G M E N T Balakrishnan Nair, J. W.A.2519/2009 The respondents 1 and 2 in the writ petition are the appellants. The writ petitioner is the first respondent. 2. The brief facts of the case are the following : The first respondent/petitioner is working as a Lecturer in Applied Arts in the Raja Ravi Varma College of Fine Arts, Mavelikkara. The first respondent originally joined as a Lecturer in Applied Arts, in the College of Fine Arts, Thiruvananthapuram, in the year 1998. Two Fine Arts Institutions, at Thrissur and Mavelikkara, were upgraded by the Government into Fine Arts Colleges, in the year 1998. In the Fine Arts Colleges, there is no post of Senior Art Instructor/Art Instructor. The respondents 2 to 8 were Senior Art Instructors/Art instructors working in the Fine Arts Institutions at Thrissur and Mavelikkara. In the Fine Arts Colleges, the teaching posts available are, Lecturer, Professor Grade II, Professor, and Principal. In view of the above development, the aforementioned party respondents, who were working as Senior Art Instructors/Art WA NO.2519, 2112 & 2537/09 2 Instructors had to face retrenchment. In the above context, the Government passed Ext.P9 order dated 28.6.2008, to protect their interests. The Government took the view that, as per the Special Rules, since Senior Art Instructors/Art Instructors cannot be posted as Lecturer, Professor Grade II etc., the method of appointment should be relaxed, so that they could also be so promoted. In that view of the matter, the Government permitted posting of M/s.P.P.Ravi, M.J.James, G.Unnikrishnan, K.N.Sasidharan and S.Raveendran Asari (respondents 2 to 6), who were working as Senior Art Instructors/Art Instructors in the Fine Arts Institutions, as Professors Grade II in the Fine Arts Colleges. Sri.R.Shanavas, Art Instructor, was permitted to be posted as Lecturer. 3. The first respondent herein, who was a Lecturer, awaiting promotion to the post of Professor Grade II, felt aggrieved by Ext.P9 order. According to him, the relaxation of method of appointment was illegal, and even assuming that the relaxation was granted properly, the persons concerned do not have the qualifications prescribed by the University, as per Ext.P8 Regulations, and the Government, as per Ext.P7 Special Rules, for WA NO.2519, 2112 & 2537/09 3 the said post. So, the writ petition was filed, challenging Ext.P9. 4. The learned Single Judge, after hearing both sides, upheld the contentions of the first respondent/petitioner. The learned Judge took the view that those persons neither have the educational qualifications, nor the experience prescribed by the Regulations of the University, in Ext.P8. In that view of the matter, the writ petition was allowed and Ext.P9 was quashed. Feeling aggrieved by the said judgment, the appellants herein have preferred this Writ Appeal. 5. During the pendency of the Writ Petition, the Government passed Annexure A1 order. By Annexure A1, the Government created 5 posts of Professors Grade II and one post of Lecturer, for appointing the aforementioned persons. The relevant portion of the said order reads as follows :- “As per the Government Order read as 4th paper above, Government have ordered to appoint Senior Art Instructors/Art Instructors namely, Shri.P.P.Ravi, Shri.M.J.James, Shri.G.Unnikrishnan, Shri.K.N.Sasidharan, Shri.R.Raveendran Asari, as Professor Grade II and Art Instructor namely Shri.R.Shanavas as Lecturer in Fine Arts College of Thrissur and Mavelikkara. In addition to the above, Government also ordered to appoint Shri.G.Ghosh as Professor Grade II by creating a post of Professor Grade II as supernumerary. For appointing the above mentioned Art Instructors in the post of Professor Grade II/ Lecturer, required posts have to be created. In the Government Order read as 4th paper above, creation of posts have not been mentioned. Government have examined the case in detail and WA NO.2519, 2112 & 2537/09 4 order to create 5 posts of Professor Grade II and one post of Lecturer for appointing the Senior Art Instructors/Art Instructors namely Shri.P.P.Ravi, Shri.M.J.James, Shri.G.Unnikrishnan, Shri.K.N.Sasidharan, Shri.R.Raveendran Asari, as Professor Grade II and Shri R.Shanavas, Art Instructor as Lecturer in Fine Arts College, Thrissur and RRV College of Fine Arts, Mavelikkara, by invoking Rule 39 Part II KS & SSR. After appointing the above Senior Art Instructors/Art Instructors as Professor Grade II/Lecturer, the posts now holding (sic-held) by them and the post holding (sic-held) by Shri.G.Ghosh who has been appointed as Professor Grade II as supernumerary should be abolished. The Hon'ble High Court in its judgment in WP(C) No.22018/08 dated 22.7.2008 ordered that the appointment of the above incumbents except Shri.P.P.Ravi, Senior Art Instructor, College of Fine Arts, Thrissur shall be subject to the result of the Writ Petition. Hence appointment of the above incumbents except Shri.P.P.Ravi, Senior Art Instructor will be subject to the result of the WP(C)No.22018/08 before the Hon'ble High Court. The Government Order read as 4th paper will stand modified to the above extent.” After creating those posts to accommodate the above mentioned persons, the Government passed Annexure A2 order dated 5.1.2010, relaxing the qualifications prescribed in the Special Rules also, in order to legalize their appointments, invoking the powers of the Government, under Rule 39 of Part II of the Kerala State and Subordinate Service Rules, 1958. The relevant portion of the said order reads as follows : “Government have decided to redesignate the posts held by Shri.P.P.Ravi, Shri M.J.James, Shri.G.Unnikrishnan, Shri.K.N.Sasidharan, and R.Raveendran Asari as Professor Grade II and redesignate the post held by Shri.R.Shanavas as Lecturer WA NO.2519, 2112 & 2537/09 5 and appoint them as such by creating five posts of Professor Grade II and one post of Lecturer in the Department of Sculpture and Painting in the College of Fine Arts, Thrissur and Mavelikkara under Rule 39 of Part II KS & SSR., 1958. Since the incumbents are not qualified as per Special Rules, the qualification prescribed in the Special Rules is decided to be relaxed in their case, in the special circumstances of the case under Rule 39 of KS & SSR. Government hereby clarify that the appointment order is with the intention of redesignating the posts held by the incumbents i.e. Senior Art Instructors/Art Instructors as Professor Grade II/Lecturer. The incumbents who are redesignated and appointed in the post of Professor Grade II/Lecturer will have seniority in the respective cadres with effect from the date of Government Orders read above. The existing faculties in the College of Fine Arts in the cadre of Senior Art Instructors/Art Instructors/Lecturer shall not be treated as similarly placed to the above said persons as they are not similarly placed as the redesignated Officers. They shall also have no claim for being promoted to the newly created posts of Professor Grade II/Lecturer. After the retirement of the above redesignated Officers the newly created posts shall be filled up as per Special Rules. In the above circumstances Government are pleased to revise the Government Orders read above by redesignating the post of Senior Art Instructor/Art Instructor held by the above incumbents as Prof.Grade II/Lecturer by invoking Rule 39 Part II KS & SSR, 1958. The above Order will be subject to the final verdict of Writ Appeal 2519/09 and other connected appeals pending before the Hon'ble High Court. The Orders read above will stand modified to the above extent only.” 6. In view of the above orders, Sri.Benny Gervassis, the learned Senior Government Pleader, who appeared for the appellants, submitted that the present Writ Appeal is to be allowed and the judgment of the learned Single Judge is liable to be reversed. According to him, initially, the Government as per the impugned order, Ext.P9, relaxed the method of appointment, WA NO.2519, 2112 & 2537/09 6 and now, the qualifications prescribed for the said posts, are also relaxed. The posts held by the beneficiaries of Ext.P9 were re- designated, and the creation of posts by such re-designation was only to accommodate them. According to the learned Government Pleader, the first respondent does not have any claim to those posts. The claim of the first respondent was confined only to the posts available in the Fine Arts Colleges. Now, in view of the new developments, once the aforementioned incumbents vacate the above posts, the first respondent and other Lecturers in the Technical Education Service could claim promotion to those posts created in the newly established Fine Arts Colleges. Therefore, it is also contended that the first respondent does not have any cause of action to sustain the challenge against the actions of the Government. 7. The learned counsel who appeared for the appellant in the connected Writ Appeal also supported the above mentioned contentions of the learned Senior Government Pleader. Adv.Sri.Devan Ramachandran, who appeared for the first respondent submitted that Annexure A2 order now issued would amount to an admission on the part of the Government that WA NO.2519, 2112 & 2537/09 7 Ext.P9 was bad, and therefore, there is nothing wrong with the judgment of the learned Single Judge, and the Writ Appeal should be dismissed. If the exercise of relaxation was not undertaken by the Government, the first respondent would have got promotion and therefore, he is a person aggrieved, it is submitted. 8. It is a well-settled principle in law that, subsequent developments can be taken note of, while moulding the reliefs at the appellate stage. In this case, the Government initially took the view that the erst-while teaching staff of the Fine Arts Institutions could be accommodated in the newly established colleges, by relaxing the method of appointment to the posts of Lecturer and Professor Grade II. But, on realizing that the said decision was not sufficient, during the pendency of the Writ Appeal, the Government issued Annexure A2, relaxing the qualifications also. In view of the above position, in the absence of any challenge to Annexure A2, there is nothing wrong with the accommodation of the aforementioned party respondents, in the newly created/re-designated posts. Further, we notice that the first respondent is a Lecturer in the discipline of Applied Arts. He cannot claim promotion to the post of Professor Grade II, WA NO.2519, 2112 & 2537/09 8 available in the disciplines of Sculpture and Painting. In this case, the beneficiaries of the exemption orders are accommodated in the posts of Lecturer/Professor Grade II, in the disciplines of Sculpture and Painting. Therefore, the first respondent's grievance is imaginary, and we agree with the appellants that the first respondent has no locus standi to challenge these orders issued, in favour of the erst-while teaching staff of the Fine Arts Institutions. Further, the posts of Professor Grade II and Lecturer were created by re-designation of the existing posts of Senior Art Instructor/Art Instructor, only to accommodate the contesting party respondents. So, the first respondent, even if he was in the aforementioned disciplines, has no legal right to claim that post. In the result, the Writ Appeal is allowed and the writ petition is dismissed. W.A.2112/09 : In view of the judgment in W.A.2519/2009, this Writ Appeal is also allowed and the writ petition is dismissed. W.A.2537/09 : The learned counsel who appeared for the respondents 1 to 3 in this Writ Appeal, who were the petitioners in the Writ Petition, would point out that the third respondent/third petitioner is a Lecturer in Sculpture, and WA NO.2519, 2112 & 2537/09 9 therefore, he has the necessary locus standi to challenge the relaxation order. We upheld the said argument, without going into the merits of their contention. Therefore, liberty is given to the third respondent to challenge Annexure A2 order produced in W.A.No.2519/09, if so advised. Subject to this clarification, this Writ Appeal is also allowed and the writ petition is dismissed. K.BALAKRISHNAN NAIR, JUDGE. C.T.RAVIKUMAR, JUDGE. tgs K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------- W.A. No.2519 of 2009 ---------------------------------------------- J U D G M E N T Dated 20th January, 2010.