IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 WP(C).No. 3019 of 2011(B) ------------------------- PETITIONER(S): -------------------- MANOSH T.I.,INSTRUCTOR GRADE II(HG) DEPARTMENT OF MECHANICAL ENGINEERING N.S.S.COLLEGE OF ENGINEERING PALAKKAD-8 BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695 001. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM-695023 3. JOINT DIRECTOR,REGIONAL DIRECTORATE OF TECHNICAL EDUCATION,KOZHIKODE, PIN-673001 BY GOVERNMENT PLEADER NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 3019 of 2011(B) -------------------------------------- APPENDIX -------------- PETITIONER'S EXHIBITS -------------------------------- RXT.P1.COPY OF THE ORDER NO.F/3979/2010 DTED 28.7.2010. EXT.P2. COPY OF THE NOTIFICATION DATED 18.9.2009, PUBLISHED IN KERALA GAZETTE DATED 27.10.2009. EXT.P3. COPY OF THE RELEVANT EXTRACT OF THE G.O (P) NO.145/2006/FIN. DATED 25.03.2006 EXT.P4. COPY OF THE G.O. (MS) NO.57/74/H. EDN. DATED 29.3.1974 ALONG WITH THE RELEVANT APPENDED STATEMENT. EXT.P5. COPY OF THE ORDER NO.A3/77/99/RDTEC DATED 1.7.1999 OF THE 3RD RESPONDENT. EXT.P6. COPY OF THE ORDER NO.A3/2820/2005/RDTEC DATED 11.11.2005 OF THE 3RD RESPONDENT. EXT.P7. COPY OF THE ORDER NO.A3/2633/2007 DATED 12.2.2008 OF THE 3RD RESPONDENT. EXT.P8. COPY OF THE GOVERNMENT LETTER NO.24430/J2/97/H.EDN. DATED 1.8.1998. EXT.P9. COPY OF THE LETTER NO.G1/1312/10 DATED 5.8.2010. EXT.P10. COPY OF THE LETTER NO.DP4/46556/2010 DATED 7.1.2011 ADDRESSED TO THE 3RD RESPONDENT. EXT.P11. COPY OF THE JUDGMENT DATED 30.7.2009 IN W.A. 1312/2008 OF THIS HON'BLE COURT. EXT.P12. COPY OF THE G.O. (RT) N.1705/10/H.EDN. DATED 28.8.2010. RESPNDENT'S EXHIBITS : NIL ----------------------------------- / TRUE COPY / P.A. TO JUDGE VK T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 3019 of 2011-B - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of October, 2011. JUDGMENT Ext.P10 proceedings of the Government rejecting the request of the petitioner for grant of Higher Grade Scale is under challenge in this writ petition. The view taken therein is that in the Technical Education Department, the post of Instructor Grade II is not in the feeder category for promotion to the post of Instructor Grade I. The petitioner's case is that the said reasoning is against the view taken by a Division Bench of this Court in Ext.P11 judgment. Apart from that, it is contended that what is applicable to the petitioner is the regulations of the Calicut University and not the rules as applicable to Government servants. 2. The petitioner entered service as Instructor Grade II in Mechanical Engineering in N.S.S. College of Engineering, Palakkad on 26.10.1998. He possesses the required educational qualifications and on completion of 8 years of service he was granted the first Higher Grade with effect from 20.7.2010 as per Ext.P1 order. It is pointed out that under the Calicut University Regulations, as amended by Notification No.GHA1/T2/3384/02 dated 18.9.2009 Instructor Grade II is the feeder wpc 3019/2011 2 category for the post of Instructor Grade I. It is further pointed out that the petitioner possesses all the qualifications for the said post. Ext.P2 is the copy of the regulations. 3. Ext.P4 is the proceedings of the Government sanctioning the post of Instructor Grade I, to the N.S.S. College, Palakkad. The petitioner has produced Exts.P5 to P7 to show that persons similarly placed in the said College itself, have been granted scale of pay attached to the post of Instructor Grade I on being sanctioned the Higher Grade. Ext.P9 is the forwarding letter of the Principal seeking to approve the same. 4. Heard learned counsel for the petitioner and learned Government Pleader. 5. In the counter affidavit filed by the second respondent, what is averred in para 5 is that as per the Special Rules in the Technical Education Department vide G.O.261/89/H.Edn. dated 19.12.1989 Instructor Grade II is not a feeder category of Instructor Grade I and hence the petitioner is not eligible. The contention thus is that the University Statute is not applicable. 6. This aspect is covered by the judgment Ext.P11, in W.A. NO.1312/2008. In para 4 of the judgment the Division Bench has held as follows: “In every College, where there is a post of Instructor Grade I, wpc 3019/2011 3 which is the promotion post of Instructor Grade II, undisputedly the incumbent working as Instructor Grade II is entitled to get the scale of pay of the post of Instructor Grade I as First Higher Grade. Though the respondents have a case that the method of appointment to the post of Instructor Grade I is by transfer, the same does not make any difference, as far as the grant of Higher Grade is concerned. But, in the case of the petitioner's College, there is no post of Instructor Grade I. In such circumstances, whether the 1st respondent/petitioner is entitled to get the scale of pay of Instructor Grade I or the next Higher Grade scale in the standard scales of pay is the point to be decided in the Writ Petition.” Thereafter, in para 5 it was observed as follows: “The learned Single Judge has took the view, which was found to be followed in the case of other private Engineering Colleges, where there was no post of Instructor Grade I. So, we feel that the view taken by the learned Single Judge is not illegal or otherwise unsupportable in law warranting interference by the Appellate Bench.” Herein, it can be seen that the post of Instructor Grade I is provided under the relevant University regulations. The said post has been sanctioned to the College in question by Ext.P4 order also. The contention of the respondents therefore that it is the Special Rules in the Department of Technical Education that will apply, cannot be accepted, obviously. The wpc 3019/2011 4 University Regulations will govern the matter, which provides filling up of the post of Instructor Grade I by promotion from the category of Grade II Instructor. For all these reasons, the writ petition is allowed. Ext.P10 is quashed. There will be a direction to the respondents to approve the placement of the petitioner in the Higher Grade scale of pay of Rs.11910 - 19350 as proposed in Ext.P1 and to grant consequential benefits including pay and allowances with arrears from 21. 20.7.2010 onwards. Appropriate orders in this regard will be passed within a period of two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/