IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 23RD AUGUST 2011 / 1ST BHADRA 1933 WP(C).No. 37579 of 2009(N) -------------------------------- PETITIONERS: ---------------- 1. DR.P.JAYAPRAKASH,ASST.PROFESSOR IN ELECTRICAL & ELECTRONICS,GOVT.ENGINEERING COLLEGE, PAINAVU,IDUKKI DISTRICT. 2. DR.A.AMAR DUTT,ASST.PROFESSOR IN ELECTRICAL & ELECTRONICS,GOVT.ENGINEERING COLLEGE, PAINAVU,IDUKKI DISTRICT. BY ADVS. SMT.S.KARTHIKA SRI.M.R.ANISON SMT.K.P.GEETHA MANI SRI.M.S.UNNIKRISHNAN RESPONDENT: ---------------- STATE OF KERALA,REP.BY ITS PRINCIPAL SECRETARY TO GOVERNMENT,HIGHER EDUCATION DEPARTMENT,GOVT.SECRETARIAT,THIRUVANANTHAPURAM. BY SMT. NISHA BOSE, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.37579/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF PH.D. CERTIFICATE OF 1ST PETITIONER DTD. 3.2.00. EXT. P2 : COPY OF PH.D. CERTIFICATE OF 2ND PETITIONER DTD. 26.7.97. EXT. P3 : COPY OF RELEVANT PAGES OF G.O.(Rt) 755/09/H.EDN. DTD. 4.6.09. EXT. P4 : COPY OF G.O.(Rt) 842/09/H.EDN DTD. 19.6.09. EXT. P5 : COPY OF G.O.(Rt) 15/02/H.EDN DTD. 1.1.02. EXT. P6 : COPY OF NOTIFICATION DTD. 15.4.08. EXT. P7 : COPY OF LIST OF APPLICANTS WHO HAVE BEEN FOUND QUALIFIED TO APPEAR FOR INTERVIEW. EXT. P8 : COPY OF RANK LIST DTD. 28.5.08. EXT. P9 : COPY OF G.O.(MS) 26/09/H.EDN. DTD. 9.2.09. EXT. P10 : COPY OF REPRESENTATION DTD. 24.7.09 BY 1ST PETITIONER BEFORE RESPONDENT. EXT. P11 : COPY OF REPRESENTATION DTD. 24.8.09 BY 2ND PETITIONER BEFORE RESPONDENT. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.37579 OF 2009 --------------------------------------- Dated this the 23rd day of August, 2011. J U D G M E N T Both the petitioners are aggrieved by Ext.P4 order by which the petitioners were reverted from the post of Professors as Assistant Professors. This was based on a fax message from the Advocate General, Ernakulam. The bare facts necessary for the disposal of the writ petition are the following. 2. The petitioners were working as Assistant Professors in Electrical and Electronics Engineering Department in the Government Engineering College. The 1st petitioner entered service as Lecturer in Electrical Engineering on 06.10.1983 and promoted as Assistant Professor on 04.08.1997. The 2nd petitioner entered service on 02.06.1984 as Lecturer and promoted as Assistant Professor on 28.11.1997. Both the petitioners are having Ph.D. 3. According to the petitioners, they are the senior most Assistant Professors working in the Electrical Engineering W.P.(C) No.37579/2009 2 Department in the Government Engineering College as can be seen from Ext.P5 final gradation list for the period from 01.04.1984 to 31.12.1999. The petitioners are serial Nos.26 and 33 therein. 4. Ext.P6 is the notification issued by the respondent for appointment of Professors and the petitioners were applicants and they were considered. The petitioners were included in the eligibility list for promotion as Professors, a copy of which has been produced as Ext.P7. It is pointed out that they were included as rank Nos.1 and 2 for appointment to the post of Professors on regular basis and this was cancelled by the Government as per Ext.P9 order in the light of certain anomalies. But the Government also directed that the vacancies of Assistant Professor/Professor/Principal that exists then and those arising in the future can be filled up under Rule 31(a)(i) of KS & SSR's by promoting eligible teachers having the qualification prescribed by the AICTE and further subject to the amendment to be made to the Special Rules. The petitioners were promoted thereafter on 04.06.2009. W.P.(C) No.37579/2009 3 5. This Court, after hearing the parties, passed an interim order on 06.07.2010 directing the respondent to consider the claim of the petitioners for temporary promotion under Rule 31(a)(i) of the General Rules under the KS&SSR by virtue of their seniority in Ext.P8, in terms of Ext.P9. This Court in the said interim order has noticed the fact that W.P.(C) No.4468/ 2005 and connected cases were allowed in favour of the petitioners therein as per judgment dated 06.10.2009 and the writ appeals filed against the judgment are now pending as W.A.No.2710/2009 and connected cases. 6. Learned Senior Counsel for the petitioners submitted that the petitioners are having the qualification as prescribed by the AICTE namely, Ph.D. They are the senior-most as well as the qualified persons eligible for promotion. Therefore, any decision in the Writ Appeal wherein the question is with regard to the claim for promotion of persons who are seniors but not having the qualification of Ph.D is the main issue to be decided. It is pointed out that the claim of the petitioners for promotion is not dependent on the decision which this Court may take in the said W.P.(C) No.37579/2009 4 Writ Appeal. The contention that the petitioners are the senior- most as well as the qualified is not disputed. What resulted in the reversion is the fax message from the Advocate General that there was an oral direction from this Court prohibiting promotions in the category of Professors in the Department of Civil Engineering and Electrical and Electronics Engineering. It is clear from paragraph 3 of the counter affidavit filed by the 1st respondent that there was an oral direction from this Court in W.P.(C) No.31866/2008 and 31862/2008 prohibiting promotions in the category of Professors in the Department of Civil Engineering and Electrical Engineering in connection with various writ petitions. It is in the light of the above, the Government decided to revert the promotees in the cadre of Civil Engineering and Electrical Engineering including the petitioners. 7. Learned counsel for the petitioners submitted that the petitioners were in Electrical and Electronics Department. Evidently, the oral direction was in respect of Civil Engineering and Electrical Engineering. That was taken as a reason for reversion of the petitioners by the Government since the W.P.(C) No.37579/2009 5 petitioners were part of the Electrical and Electronics Department. The scope of the writ petition therein was only with respect to the claim for promotion between persons who are not having Ph.D and the persons who are having Ph.D. Therefore, as far as the petitioners are concerned who are eligible for promotion even in terms of AICTE norms and based on seniority could not have been adversely affected by the proceedings in the said case. 8. I find much force in the above submissions. In that view of the matter, the order Ext.P4 reverting the petitioners are Assistant Professors cannot survive. The petitioners have now been promoted under Rule 31(a)(i) of the General Rules under the KS&SSR as per G.O.(Rt) No.1911/10/H.Edn. dated 30.09.2010. In the affidavit filed by the petitioners in support of I.A.No.11476/2011, in paragraph 5, it is averred that the official respondents have already given provisional promotion to 14 Assistant Professors, far junior to the petitioners, working in various other disciplines in the very same promotion order dated 04.06.2009 under Rule 31(a) of KS&SSR whereby the petitioners W.P.(C) No.37579/2009 6 were also promoted initially. The details of those 15 Assistant Professors who were given provisional promotion to the post of Professors in various Departments namely, Mechanical Engineering Department, Electronics & Communication Engineering Department, Architecture Department, Chemical Engineering Department and Production Engineering Department are given therein. The petitioners have also averred that as per G.O.(Rt) No.1308/09/H.Edn. dated 18.08.2009, one more person who is said to be far junior to the petitioners namely, Sri.George Thomas, Assistant Professor in Mechanical Engineering, Government Engineering College, Thrissur had been promoted. It is thus pointed out that at the time when Ext.P4 order reverting the petitioners was issued, 15 junior persons were already promoted, but in different Departments. Accordingly, it is prayed that the respondents may be directed to pass orders provisionally promoting and posting the petitioners to the post of Professors under Rule 31(a)(i) of the General Rules under the KS&SSR from 19.06.2009 to 29.10.2010. 9. Evidently, the petitioners were promoted in the light of W.P.(C) No.37579/2009 7 Ext.P9 order passed by the Government initially. A reading of the said order shows that after cancelling the rank list for appointment to the post of Assistant Professor, Professor in the Government Engineering Colleges as per the existing Special Rules, it was directed that the vacancies of Assistant Professor/Professor/Principal that exists now and those arising in future can be filled up under Rule 31(a)(i) of KS &SSR by promoting eligible teachers having the qualification prescribed by the AICTE and further subject to the amendment to be made to the Special Rules. Evidently, the petitioners clearly fell in the category of teachers having qualification prescribed by the AICTE. Learned Senior Counsel for the petitioners is well right in submitting that but for the reversion of the petitioners by Ext.P4 the petitioners would have continued based on the initial orders granting promotion. In that view of the matter, as reversion of the petitioners is evidently unsupportable, the question whether the petitioners have to be granted promotion even though provisionally for the period they were kept out will have to be considered by the W.P.(C) No.37579/2009 8 Government. All aspects will be considered including the fact that the juniors of the petitioners who were promoted for the first time along with the petitioners are still enjoying the promotion and their service were never interrupted by any reversion. Therefore, appropriate orders will be passed by the Government after considering all aspects within a period of two months from the date of receipt of a copy of this judgment. It is made clear that the pendency of Writ Appeal No.2710/2009 and connected cases will not be a bar for the Government in considering the matter. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp