IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 22857 of 2008(U) -------------------------------- PETITIONER: -------------- A. BIJU, SELECTION GRADE LECTURER IN PHYSICS, M.E.S. COLLEGE, NEDUMKANDAM, IDUKKI DISTRICT. BY MR.S.RAMESH BABU, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY COLLEGIATE EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 4. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY THE REGISTRAR, M.G. UNIVERSITY CAMPUS, KOTTAYAM. BY MR.T.A. SHAJI, SC, M.G.UNIVERSITY FOR R4 MR.T.T. MUHAMOOD, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.22857/2008 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF the JUDGMENT DTD. 27.1.2003 IN O.P.No.2848/03. EXT. P2 : COPY OF THE ORDER DTD. 22.7.04. EXT. P3 : COPY OF the ORDER DTD. 8.6.06. EXT. P4 : COPY OF THE COMMUNICATION DTD. FEBRUARY, 2007. EXT. P5 : COPY OF THE COMMUNICATION DTD. 23.8.2007. EXT. P6 : COPY OF THE COMMUNICATION DTD. 27.5.2008. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp P.N.RAVINDRAN, J. ----------------------------- W.P(C) No. 22857 of 2008-U ------------------------------ Dated this the 27th day of March, 2009. J U D G M E N T Heard Sri.S.Ramesh Babu, the learned counsel appearing for the petitioner, Sri.T.T.Muhamood, the learned Government Pleader appearing for respondents 1 to 3 and Sri.T.A.Shaji, the learned standing counsel appearing for the fourth respondent. 2. The petitioner entered service as Lecturer in Physics in M.E.S. College, Nedumkandam, Idukki, a college affiliated to the Mahatma Gandhi University, on 6.6.1994. His appointment was approved. Later when the UGC Scheme 1998 was introduced, he was placed in the senior scale with effect from 6.6.1999 by the educational agency and the said placement was approved by the Mahatma Gandhi University provisionally by its order dated 11.7.2002. 3. Though the petitioner’s placement in the senior scale under the UGC Scheme was approved by the University, the Deputy Director of Collegiate Education, Kottayam objected to payment of salary and allowances in the senior scale. The petitioner thereupon filed O.P.No.2848 of 2003 in this Court. By Ext.P1 judgment delivered on 27.1.2003, this Court held that since the University has approved the petitioner’s placement in the senior scale, the Government are bound to W.P(C) No. 22857 of 2008-U 2 accept the same and pay salary to the incumbent. O.P.No.2848 of 2003 was accordingly allowed and the official respondents were directed to disburse arrears of salary and allowances to the petitioner based on the approval of his placement in the senior scale by the University. Ext.P1 has become final. 4. While matters stood thus, the educational agency placed the petitioner in the selection grade with effect from 6.6.2004 as per Ext.P2 proceedings dated 22.7.2004. The sub committee of the Syndicate of the University that met on 10.4.2006 resolved to approve the petitioner’s placement in the selection grade provisionally. Thereupon by Ext.P3 order, the University fixed his pay at Rs.12,000/- in the scale of pay of Rs.12,000-420-18300 with effect from 6.6.2004. 5. The Principal of the college thereupon presented the arrear bill, claiming salary and allowances in the scale of pay applicable to Selection Grade Lecturers. The Deputy Director of Collegiate Education, Kottayam objected to the bill and sent Ext.P4 letter to the Principal of the college pointing out that the petitioner is continuing in the college without any workload and therefore he is not entitled to be placed in the Selection Grade. The Deputy Director of Collegiate Education also moved the University seeking reconsideration of Ext.P3. By Ext.P6 letter dated 27.5.2008, the Registrar of the Mahatma Gandhi University informed the W.P(C) No. 22857 of 2008-U 3 Deputy Director of Collegiate Education , Kottayam that the University does not find any reason to deviate from their earlier decision. The request of the Deputy Director of Collegiate Education to revoke Ext.P3 was rejected. This writ petition was thereupon filed seeking the following reliefs: “a) issue a writ of certiorari calling for the records leading upto Ext.P4 and quash the same. b) issue a writ of mandamus commanding respondents and to disburse pay and allowances to the petitioner in the scale of Selection Grade Lecturer together with arrears thereof from 6.6.2004 till date with interest on such arrears at 12% per annum from 8.6.2008 till the date of actual payment; c) Declare that the petitioner is entitled for pay and allowance in the scale of Selection Grade Lecturer with effect from 6.6.2004 onwards.” 6. A counter affidavit has been filed on behalf of the third respondent contending that the petitioner was appointed after 1.4.1990 against Pre-degree vacancies and is continuing in service without any workload. It is contended relying on the circular No.28796/D1/03/H.Edn. dated 9.2.2004 (a copy thereof was made available to me for perusal), that as the petitioner was appointed after 1.4.1990 against Pre-degree vacancies and is continuing in service without any workload he is not eligible for placement in the Senior Scale and Selection Grade under the UGC Scheme. The counter affidavit W.P(C) No. 22857 of 2008-U 4 proceeds to state that the total workload in the Department of Physics as on 6.6.2004 is 13 hours only for which one post of Lecturer alone is admissible and that the petitioner is the fourth teacher in the department. The Mahatma Gandhi University has filed a counter affidavit, justifying the action taken by them. The University has stated that the Principal of the college has certified that the petitioner was working in a regular post before the de-linking of the Pre-degree course and had been working with 16 hours workload after the de-linking of the Pre- degree course. It is also stated that the Principal had submitted a certificate stating that the petitioner did not come under the purview of Government circular dated 9.2.2004. It is further stated that it was taking note of all these circumstances that the University provisionally approved the placement of the petitioner in the Selection Grade. 7. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The learned counsel appearing for the petitioner contends that the petitioner’s entitlement for placement in the senior scale stands concluded by Ext.P1 judgment. He submits that apart from the vague averments in the counter affidavit, there is no material to show that the petitioner who is the fourth teacher in the Department of Physics is continuing in service without any workload. The learned counsel for the petitioner further contends that there is no W.P(C) No. 22857 of 2008-U 5 stipulation in the Government order implementing the UGC Scheme that teachers appointed after 1.4.1990, will not be entitled to placement in the Senior Scale or Selection Grade. The learned counsel further submits that the petitioner is continuing in the college with sufficient workload and handling classes and that the statement in the counter affidavit filed on behalf of the third respondent does not reflect the true state of affairs. Per contra, the learned Government Pleader appearing for respondents 1 to 3 contends that as the fourth teacher in the department who is continuing in service without any workload, the petitioner’s claim for placement in the scale of Selection Grade Lecturer is not sustainable. The entitlement of the petitioner for placement in the Senior Scale is not in dispute. The petitioner was placed in the Senior Scale with effect from 6.6.1999. That was approved by the University by order dated 11.7.2002. This Court by Ext.P1 judgment has recognized the petitioner’s right to be placed in the senior scale and also directed the officers to pay him salary and allowances applicable to Lecturers placed in the Senior Scale. Ext.P1 judgment has become final. The State of Kerala cannot therefore dispute the entitlement of the petitioner to be placed in the Senior Scale. The learned Government Pleader however contends that the circular dated 9.2.2004 was issued later and therefore the petitioner cannot be placed in the Selection Grade. The conditions W.P(C) No. 22857 of 2008-U 6 for placement in the UGC scheme are those stipulated in G.O(P) No. 171/99/H.Edn. dated 21.12.1999. A Division Bench of this Court has in State of Kerala & ors. V. Dr.Sina A.R & Ors. (1998(2) KLT 144) and in Cherian Mathew V. Principal, S.B.College, Changanassery (2007(2) KLJ 770) held that circulars cannot have the effect of amending Government orders. Therefore in my opinion, the circular dated 9.2.2004 cannot have the effect of amending the terms and stipulations in G.O(P) No.171/99/H.Edn. dated 21.12.1999. Further it has not been demonstrated to me the certificate issued by the Principal of the University that the petitioner is working against a sanctioned post and that his appointment was not against a Pre-degree vacancy and that he is working with 16 hours workload after the de-linking of Pre-degree, is incorrect. The third respondent has in the counter affidavit only stated that the petitioner is the fourth teacher in the department and that he is continuing in the department without any workload. It is also contended that only one teacher is permissible. If that be so, no reason is given as to why the said three teachers who are in excess are not retrenched. I am therefore not persuaded to agree with the third respondent that the petitioner is continuing in the college without any workload. The eligibility of the petitioner for placement in the Selection Grade is not in dispute. I am therefore constrained to hold that the objection raised by W.P(C) No. 22857 of 2008-U 7 the third respondent in Ext.P4 and in the counter affidavit lacks merit. I accordingly allow this writ petition, quash Ext.P4 and direct respondents 1 to 3 to disburse to the petitioner, salary and allowances at the rates applicable to the Selection Grade Lecturers. Payment of arrears of salary and allowances shall be made within two months from the date on which the arrear bill is received from the Principal of the college. The writ petition is allowed as above. No costs. Sd/- P.N.RAVINDRAN JUDGE //True Copy// PA to Judge ab