IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 WP(C).No. 5323 of 2004(H) -------------------------------------- PETITIONER(S): ---------------------- PAYAS VARGHESE, KUTTOMPARAMBIL, KARIPADAM P.O. THALAYOLAPARAMBU. BY ADV. SRI.BABU VARGHESE RESPONDENT(S): ------------------------- 1. ST.XAVIER'S COLLEGE, VAIKOM, REP. BY ITS MANAGER. 2. THE MAHATMA GANDHI UNIVERSITY, REP. BY ITS REGISTRAR, PRIYADARSHINI HILLS P.O. KOTTAYAM. 3. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM. 5. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. R2 BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY. R3 TO R5 BY GOVT. PLEADER SMT.M.R. SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON 08/10/2010 DELIVERED THE FOLLOWING: WP(C) NO. 5323/2004-H APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE DEGREE CERTIFICATE ISSUED BY THE UNIVERSITY DATED 09/01/1990. EXT.P2: COPY OF THE DEGREE CERTIFICATE ISSUED BY THE UNIVERSITY DATED 29/10/1993. EXT.P3: COPY OF THE GOVERNMENT ORDER DATED 23/03/1990. EXT.P4(a): COPY OF THE WORKLOAD STATEMENT AS ON 01/11/1992 ISSUED BY THE PRINCIPAL OF THE COLLEGE. EXT.P4(b): COPY OF THE STAFF FIXATION ORDER ISSUED BY THE UNIVERSITY FOR THE YEAR 1992-93. EXT.P5: COPY OF THE APPOINTMENT ORDER ISSUED IN FAVOUR OF THE PETITIONER. EXT.P6: COPY OF THE CERTIFICATE ISSUED BY THE 1ST RESPONDENT DISCLOSING THIS FACT. EXT.P7: COPY OF THE ORDER OF THE HONOURABLE SUPREME COURT IN S.L.A. (CIVIL) NO.23517/2003 DATED 05/01/2004. EXT.P8: COPY OF THE G.O. DATED 12/02/1996. EXT.P9(a): COPY OF THE JUDGMENT DATED 11/08/1997 IN O.PS.7239/97 & 5755/1997. EXT.P9(b): COPY OF THE G.O. DATED 08/12/1997. EXT.P10: COPY OF THE ORDER DATED 16/11/1994. EXT.P11: COPY OF THE APPOINTMENT ORDER DATED 01/08/1996. EXT.P12: COPY OF THE G.O. DATED 28/03/1998. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. C.T. RAVIKUMAR, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 5323 OF 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of October, 2010 J U D G M E N T The petitioner was appointed as Lecturer in Chemistry (State Scale) in St. Xavier's College, Vaikom as per Ext.P5 order dated 6.11.1992. After the issuance of Ext.P5, the first respondent issued Ext.P6 dated 13.3.1998 to the effect that the appointment of the petitioner was, in fact, effected only as Junior Lecturer. The University Grants Commission Scheme (in short 'UGC' Scheme) was introduced in Kerala as per order dated 13.3.1990. However, the same was made applicable to all College teachers only as per Ext.P3 Government Order dated 23.3.1990. The teachers were then classified into two categories, i.e., one falling under the category of 52% coming under the UGC Scheme eligible for UGC scale of pay and the remaining 48% who are not falling under the UGC Scheme. As W.P.(C)No.5323/2004 2 per the Government Order dated 23.3.1990, those who were appointed after the said date, would be eligible only to take classes for Pre-degree course. However, in Ext.P3 filling up of the vacancy with respect to the 48% category was not specifically prohibited. Paragraphs 5 and 6 therein assume relevance in this context and they read thus:- “5. Those who will be appointed in vacancies relating to pre-degree classes after the issue of this order will be eligible to take classes for pre-degree course only in future and they will not be eligible for taking class in degree courses. Their qualifications, method of appointment and service conditions will be decided by Government. 6. The above benefits will be available only to those who are appointed on a regular basis against permanent vacancies.” (emphasis supplied) 2. It is obvious from a combined reading of the above extracted portion from Ext.P3, that is paragraphs 5 and 6, and in fact, a reading of Ext.P3 as a whole, that there was no ban on appointment as against the 48% of college teachers who are to take classes for the pre-degree course and at the same time, it W.P.(C)No.5323/2004 3 suggests the existence of liberty to effect appointment with the aforesaid rider. The restriction therein was only with respect to the eligibility to take classes in the college. As per the order, the appointees after the issuance of Ext.P3 would be entitled to take classes only for pre-degree course and they would not be eligible to take classes in degree courses. In the aforesaid circumstances, certain Managers filled up the vacancies that occurred in the 48% as and when vacancies occurred in the said category. The petitioner herein was appointed under such circumstances in St.Xavier's College, Vaikom. 3. In Ext.P3, it was further stated that the qualifications required for such appointment, method of appointment and service conditions would be decided by the Government. In short, despite creating such a category of teachers to take classes for the Pre-degree course, the method of appointment, service conditions and the qualifications required for such appointment, were not provided as per Ext.P3. W.P.(C)No.5323/2004 4 Admittedly, the qualifications for such appointment were prescribed only as per Ext.P8 Government Order dated 12.2.1996. As per Ext.P8 G.O, the academic qualifications required for such appointment are provided hereunder:- 4. Other qualifications; i. Masters Degree in the concerned subject with at least 50% marks or its equivalent. ii. B.Ed Degree. 4. The appointment of the petitioner was subsequent to Ext.P3 Government Order, but prior to Ext.P8 Government Order. Indisputably, the petitioner possessed all the qualifications prescribed under Ext.P8. Even then, the appointment of the petitioner as per Ext.P5 was not approved. Subsequently, Ext.P9(b) order dated 8.12.1997 was issued by the Government. In fact, the said Government order was issued when the Directorate of Collegiate Education informed the Government regarding the reluctance on the part of the Universities to approve the appointment of the teachers W.P.(C)No.5323/2004 5 appointed in terms of the qualifications prescribed in Ext.P8 Government Order and that on account of the said situation, the appointees were not getting salary for want of approval. When faced with such a situation, certain appointees approached this court by filing O.P.Nos.5755/1997 and 7239/1997 and this court as per Ext.P9(a) judgment dated 11.8.1997 disposed of those original petitions with a direction to the Government to finalise the matter. In fact, it was taking into account all the aforesaid circumstances, that the Government have issued Ext.P9(b) order dated 8.12.1997. In terms of Ext.P9(b), the petitioner was actually transferred to Higher Secondary school when Pre- Degree was de-linked from the college and thenceforth, he has been working in the Govt. Higher Secondary School, Vaikom. In fact, prior to the passing of Ext.P9(b) Government Order, the petitioner was issued with another order of appointment viz., Ext.P11 dated 1.8.1996 based on Ext.P8 Government order dated 12.2.1996. As already noticed, the petitioner was, admittedly, W.P.(C)No.5323/2004 6 appointed for taking classes in Pre-Degree level as per Ext.P5. That aspect was actually clarified as per Ext.P6. In fact, prior to the issuance of Ext.P11 order Government have issued Ext.P10 Government order dated 16.11.1994. As per the same, teachers appointed or re-appointed after 13.3.1990 but before 14.5.1992, were exempted from passing the National Eligibility Test and Academic qualifications prescribed by the UGC. Though the petitioner was appointed as per Ext.P5, he had not received salary for the period from 6.11.1992 to 31.7.1996. It was in the said circumstances that the petitioner approached this court by filing this writ petition mainly with the prayer to quash Ext.P11 to the extent it orders his re-appointment with effect from 1.8.1996 ignoring the original appointment made as per Ext.P5 and to declare that the petitioner is entitled to salary and all other service benefits for the period during which he had worked that is, with effect from 6.11.1992 to 31.7.1996 and for such other reliefs. W.P.(C)No.5323/2004 7 5. In this writ petition, none of the respondents filed any counter affidavit. Admittedly, the petitioner had earlier approached this Court by filing O.P.No.12305 of 1996. In fact, the challenge was against the stand taken by the University insisting UGC/NET qualifications. It was challenged on the ground that UGC norms accepted by the Vice Chancellor was not then approved by the Academic Council and that the UGC norms accepted by the Vice Chancellor had not been published in the official gazette. However, the contentions were rebutted contenting that the crucial aspect that the appointment of the petitioner was in the pre-degree level and for which the UGC qualifications were not applicable even as per the relevant orders could not be canvassed before the learned Single Judge. Therefore, in W.A.No.618 of 1998 the said aspect was also highlighted. However, it was not considered by the Division Bench and the writ appeal was dismissed. The matter was further taken before the Apex Court as Special Leave Appeal (Civil) No.23517 of 2003. Ext.P7 is the order passed by the Hon'ble Apex Court in the said Special Leave Appeal. Evidently, it was dismissed with the following observation:- “Mr. Mathai M.Paikeday, learned senior W.P.(C)No.5323/2004 8 counsel for the petitioner contends that to the category of appointees like the petitioner, the relaxation is not required. It is seen from the order that no such point has been argued and considered, though, learned senior counsel points that such a point has been made. If that be so, it is for the petitioner to approach the High Court for a decision on the same, as is permissible in law.” Therefore, the question is whether in the light of Ext.P7 order the contentions raised by the petitioner in this writ petition can be considered on merits or whether the petitioner is to be non- suited based on the principles of constructive res judicata. Obviously, the Apex Court granted liberty to the petitioner to approach this Court for a decision on the question whether persons like the petitioner who belong to the category of 48% require relaxation from UGC norms with respect to the qualifications. The liberty was granted to raise that question as is permissible in law. Earlier, the question was not raised. It was taking note of the said circumstances that the above observation was made by the Hon'ble Apex Court. Res judicata is a rule of procedure. A plea founded upon the liberty of res judicata can be waived by a party. That apart, a party is not entitled to raise the question of res judicata when it has not been properly raised in the pleadings. In this case, evidently, none of W.P.(C)No.5323/2004 9 the respondents filed any counter affidavit. Therefore, it is an admitted position that none of the respondents had properly raised the question of res judicata. It is also pertinent to note that there was no submission on behalf of the respondents based on the liberty to res judicata including constructive res judicata. In the light of the decision of this Court in Rugmini Amma and another v. Mrs. V.R.Nayanar and another (1991 (1) KLJ 186) and also that of the Apex Court in Victoria v. K.V.Naik and others ((1997) 6 SCC 23) I am of the view that as the respondents had failed to properly raise the pleadings touching the question of res judicata including constructive res judicata, there is no ground to non-suit the petitioner especially in the light of the observation made by the Hon'ble Apex Court as per Ext.P7 while dismissing the Special Leave Appeal. In short, I am inclined to consider the contentions raised by the petitioner in this writ petition on merits. As per Ext.P3 Government Order dated 23.3.1990, UGC scheme was made applicable in the State and the College teachers were bifurcated into two categories namely, 52% falling under the UGC Scheme and the remaining 48% of teachers not covered by the UGC scheme. As noted earlier, in spite of creation of the said two categories of college W.P.(C)No.5323/2004 10 teachers, Ext.P3 did not prescribe the qualification, method of appointment and service conditions with respect to the latter category, i.e., 48% category. The said fact is obvious from paragraph 5 of Ext.P3 Government order which reads thus:- “5. Those who will be appointed in vacancies relating to pre-degree classes after the issue of this order will be eligible to take classes for pre- degree course only in future and they will not be eligible for taking class in degree courses. Their qualifications, method of appointment and service conditions will be decided by Government.” In this context, it is also relevant to note that prior to the introduction of UGC Scheme a person with 55% marks in the Master's Degree was eligible for appointment as Lecturer in a college. Therefore, in the absence of any prescription with respect to the qualification for appointment against the 48% and specific prescription of qualification and method of appointment against the 52%, coupled with the absence of restriction/ban for appointment against the 48% category, the only possible conclusion that one can arrive at is that during the interregnum, the UGC qualifications would be applicable for appointment W.P.(C)No.5323/2004 11 against the 48%. As noticed earlier, in Ext.P3 itself, what is stated in para 5 with respect to the 48% is that their qualification, method of appointment and service conditions would be decided by the Government. It is common case that despite such a statement in Ext.P3, qualifications for such appointment were prescribed only as per Ext.P8 order dated 12.2.1996. In other words, for about six years there were no orders prohibiting appointment against the 48% category and also prescribing the qualifications and method of appointment against the latter category falling under the 48% category. No man in senses could presume that the intention was to prohibit regular appointments against the 48% category till such prescription of qualifications and method of appointment. Any such understanding of the position would have definitely gone against the better interests of the students community. At any rate, nobody could have found or attribute flaw on the part of managements in filling up vacancies to run the de-linked pre- W.P.(C)No.5323/2004 12 degree classes. None of the respondents brought to my attention any provision of law or Government orders or any other circulars by the Universities requiring, rather, mandating the managements to defer all appointments against the said category till prescription of qualifications, method of appointment and other service conditions by the Government. In fact, a scanning of paragraph 5 in Ext.P3 extracted above would suggest that it virtually permitted such appointments against vacancies relating to pre-degree classes. At the risk of repetition, in this context, I may refer to the first sentence in paragraph 5 in Ext.P3 which reads thus:- “Those who will be appointed in vacancies relating to pre-degree classes after the issue of this order will be eligible to take classes for pre-degree course only in future and they will not be eligible for taking class in degree courses.” (emphasis supplied) As already noticed, the Pre-UGC qualification for appointment as Lecturer in College was only a pass in the concerned Master's W.P.(C)No.5323/2004 13 Degree with 55% marks. In the case of the petitioner besides a pass in M.Sc. Chemistry with first class from the M.G.University he possessed B.Ed. Degree from the same University. He acquired the B.Ed. Degree on 29.10.1993 as is obvious from Ext.P2. Thus, the petitioner possessed all the Pre-UGC qualifications for appointment as Lecturer at the time of his appointment as per Ext.P5. Admittedly, Ext.P8 was issued much after the appointment of the petitioner viz., only on 12.2.1996. The qualifications prescribed for appointment of Junior Lecturers (Pre-Degree) are as hereunder:- “3) The qualification regarding age; i) For appointment under item 2(i) above there shall be no age limit. ii) No person shall be eligible for appointment by direct recruitment if he has not completed 22 years of age or is above 35 years of age on the Ist day of January of the year in which the applications for appointment are invited. Usual relaxation in upper age limit shall be allowed to candidates belonging to SC/STs and other backward classes. 4) Other qualifications; i) Master's Degree in the concerned subject with W.P.(C)No.5323/2004 14 at least 50% marks or its equivalent. ii) B.Ed. Degree.” 6. Admittedly, the petitioner satisfies all qualifications which were prescribed as per Ext.P8. In other words, at the time of appointment as per Ext.P5 he possessed the Pre-UGC qualifications for appointment and on the date of introduction of qualification for appointment as Junior Lecturer (Pre-Degree) as per Ext.P8 he was having all such qualifications. ExtP9(b) would reveal that it was passed after taking into account the cases of persons like the petitioner. It is evident from Ext.P9(b) that the Directorate of Collegiate Education in its letter dated 1.11.1996 informed the Government that the Universities were reluctant to approve the appointment of teachers as per qualifications prescribed in Ext.P8. In Ext.P9(b) it has been stated thus:- “Government have prescribed qualification and method of appointment of Junior Lecturers for teaching Pre-Degree as per Government Order read as 1st paper above. The Director of Collegiate Education in his letter read as IInd paper above informed that the Universities are reluctant to approve the appointment of the W.P.(C)No.5323/2004 15 teachers appointed as per the qualifications prescribed in the above Government Order as it will be against the University Status.” The 1st paper referred therein is G.O.(Ms)No.30/96/H.Edn. dt. 12.3.1990. Had the qualification and method of appointment of Junior Lecturers for teaching Pre-Degree was prescribed under Government order dated 12.3.1990 Government would not have made the statement in Ext.P3 Government order dated 23.3.1990, to the effect that in regard to appointments against vacancies relating pre-degree classes qualifications, method of appointment and service conditions would be decided by the Government. No such orders prescribing qualifications and method of appointment issued in between Ext.P3 Government order dated 23.3.1990 and Ext.P8 Government order dated 12.2.1996 have been brought to my notice. Therefore, the reference, made under Ext.P9(b) in the said context must have been Ext.P8 Government order dated 12.2.1996. There is W.P.(C)No.5323/2004 16 nothing in Ext.P9(b) which would suggest that appointees prior to the issuance of Ext.P8 order dated 12.2.1996 are not entitled to get their appointment approved as Junior Lecturer. Admittedly, the Junior Lecturer appointed in Colleges were transferred to Higher Secondary Schools only after delinking of pre-degree course from the college. At the same time, it is evident from a combined reading of Exts.P3 and P8 that a new cadre of teachers for teaching the pre-degree courses was created and qualifications and method of appointment were prescribed for the first time only as per Ext.P8 which is dated 12.2.1996. The question is regarding the relevancy of the cut off date of 14.5.1992. Having permitted appointments for filling up of 48% category for the purpose of taking classes for pre- degree course as per order dated 23.3.1990 and subsequently even as per Ext.P8 order sanctioning of appointments made after that date up to 14.5.1992 can only be treated as hostile discrimination. There is no reason for restricting the relaxation W.P.(C)No.5323/2004 17 from passing National Eligibility Test and academic qualification prescribed by the UGC in respect of appointees under the 48% category only up to 14.5.1992. There is no reason for a classification among the 48% category, that is, such appointees whose appointments were effected on or after 23.3.1990 and the date of Ext.P8, that is 12.2.1996. Evidently, the petitioner who was appointed as per Ext.P5 has been continuing in service and therefore there is no reason for meeting out any discriminatory treatment. There is no case at all for the respondents that taking into account the workload in the pre-degree classes a post could not have been sanctioned in the college on 6.11.1992. In fact, it was taking into account the workload in the pre-degree classes on 6.11.1992 that the petitioner was appointed and since then he has been taking classes for pre-degree classes. In the said circumstances, there was absolutely no reason for issuing a fresh order of appointment as per Ext.P11. Instead, the appointment of the petitioner should have been approved with W.P.(C)No.5323/2004 18 effect from 6.11.1992 especially in the light of Ext.P4(b) staff fixation order. In short, ignoring the original appointment made as per Ext.P5 which is legally sustainable in the light of Ext.P4(b) staff fixation order there was no reason for issuing reappointment order as per Ext.P11. In view of the finding that there was no reason for restricting the relaxation only up to 14.5.1992 ignoring the fact that qualifications were prescribed only as per Ext.P8 order and that at the time of appointment the petitioner was having all the prescribed qualifications under the Pre-UGC Scheme there is no reason for sanctioning his appointment only with effect from 1.8.1996 instead of sanctioning his appointment with effect from 6.11.1992 in terms of Ext.P5. 7. I have already found that the petitioner at the time of his appointment as per Ext.P5 was possessing the Pre-UGC qualification for appointment as Lecturer in a college. No additional vacancies were prescribed as per Ext.P3. Despite the W.P.(C)No.5323/2004 19 fact that as per Ext.P3 no restriction was put on appointments against the 48% category, as per Ext.P3, it has been specifically made clear that the qualifications and method of appointment and other service conditions with respect to the 48% category of teachers for taking pre-degree classes would be decided later by the Government. Such vacancies and method of appointment have been prescribed admittedly only as per Ext.P8. The appointment of the petitioner was effected between the date of issuance of Ext.P3 and the date of issuance of Ext.P8. Therefore, there is no reason for denying benefits to the petitioner. All benefits flowing out of his appointment made as per Ext.P5 and restricting such benefits in the light of Ext.P11 with effect from 1.8.1996 the order of re-appointment in Ext.P11 is liable to be set aside. Accordingly, Ext.P11 is set aside and it is declared that the petitioner is entitled to get his appointment sanctioned with effect from 6.11.1992, in the light of Ext.P5 order of appointment. Consequently, the petitioner is entitled to salary W.P.(C)No.5323/2004 20 and all other service benefits with effect from 6.11.1992 to 31.7.1996. Even according to the respondents, from 1.8.1996 the petitioner is entitled to such benefits. The writ petition is accordingly disposed of with a direction to the respondents to grant approval to the appointment of the petitioner with effect from 6.11.1992 and grant all consequential benefits including arrears of salary from 6.11.1992 to 31.7.1996. (C.T. RAVIKUMAR, JUDGE) jma/TKS