IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 WP(C).No. 6952 of 2009(L) ------------------------------------- PETITIONER: ------------------- SUGATHAKUMAR K.C., WORKSHOP INSTRUCTOR, TECHNICAL HIGH SCHOOL, PAYYOLI, AYANIKKAD P.O. BY ADV. SMT.I.SHEELA DEVI. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER SMT. RANI DIOTHIMA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/03/2011, ALONG WITH W.P.(C). 6607/2010 AND CONNECTED CASES, THE COURT ON 18/03/2011 DELIVERED THE FOLLOWING: W.P.(C). NO.6952/2009-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SPECIAL RULES IN NOTIFICATION NO. G.O. (P).NO.261/89/H. EDN. DTD. 19/12/1989 OF THE GOVERNMENT OF KERALA. EXT.P.2: COPY OF THE COVERING LETTER OF THE FINAL SENIORITY LIST NO.EG1/1646/2008 DTE DTD. 28/11/2008. EXT.P.2.A: COPY OF THE NAME OF THE CANDIDATES IN THE FINAL SENIORITY LIST DTD. 28/11/2008 PUBLISHED BY THE R.2. EXT.P.3: COPY OF THE JUDGMENT IN W.P.(C).NO.26027/2005 DTD. 18/08/2007 OF THIS HONOURABLE COURT. EXT.P.4: COPY OF THE ORDER NO. GO(RT).1686/2007/H. EDN. DTD. 24/08/2007 OF THE GOVERNMENT OF KERALA. EXT.P.5: COPY OF THE ORDER NO. 30637/L3/07/H. EDN. DTD 15/11/2008 OF THE HIGHER EDUCATION (L) DEPARTMENT. EXT.P.6: COPY OF THE ORDER G.O.(RT).NO.1698/08/H. EDN. DTD. 17/11/2008. EXT.P.7: COPY OF THE CIRCULAR NO. EG1/1646/2008/DTE DTD. 23/01/2008 ISSUED BY THE R.2. EXT.P.8: COPY OF THE CIRCULAR NO. G1/29030/07 DTE DT. 25/05/09. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 6952/2009-L, 6607/2010-A, 9599/2010-Y, 10014/2010-B, 12184/2010-W, 24823/2010-C & O.P.No.6805/1997-I - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of March, 2011. JUDGMENT W.P.(C) Nos. 6952/2009, 6607/2010, 9599/2010, 10014/2010, 12184/2010 and 24823/2010 In these writ petitions, common questions arise for consideration and they are being disposed of together. 2. The petitioners are working in institutions under the Technical Education Department and are governed by the relevant special rules, viz. Kerala Technical Education Service Rules (Amendment Rules, 1989). The rules were initially framed in the year 1967 which is known as Kerala Technical Education Service Special Rules. 3. The petitioners in W.P.(C) Nos.6952/2009, 6607/2010, 9599/2010, 10014/2010 and 12184/2010 are B.Tech holders. The present dispute is the aftermath of an amendment in 1989. We are concerned with the qualification and method of appointment to the post of Lecturer, etc. Under 1967 rules, the methods of filling up of the post was governed by the following provisions: wpc 6952/2009, etc. 2 “2. Lecturer 1) By transfer from the categories of Assistant Lecturers in Polytechnics and Instructors in Engineering and Draftsman in Junior Technical Schools. O R In the absence of suitable candidates in item 1) above, 2) by transfer from any other service O R 3) In the absence of suitable candidates for transfer in items (1) and (2) above, by direct recruitment.” The qualifications prescribed are as follows: “Sl. No. Post Method of Qualifications appointment --------------------------------------------------------------------------------- 2. Lecturer Any method Degree in appropriate branch of Engineering Technology with two years professional experience in Engineering or Technology. O R Diploma in the appropriate branch of Engineering or Technology with 60% marks in the final year examination and 10 year teaching experience. Note: 1. A pass in sections A & B of the A.M.I.E. (India) will be considered as equivalent to diploma with 60% marks. 2. For transfer as Lecturer from the category of Assistant Lecturers/Instructors in Engineering/Draftsman, eight years service for diploma holders and two years service for degree holders will wpc 6952/2009, etc. 3 be sufficient.” Under the amended rules, the provisions read as follows: “2. Lecturer/Post Diploma Lecturer. 1. By transfer from the Kerala Technical Education Subordinate Service from the category of Instructor Grade I in Engineering Colleges/Workshop Superintendent in Polytechnics/Superintendents of Technical High Schools. or 2. In the absence of qualified candidates under item 1 above by transfer from the Kerala Technical Education Subordinate Service from the category of Assistant Lecturers/Instructor in Engineering/Draftsman Grade I/Foreman belonging to the branch of Engineering/Technology in which vacancy exists; or 3. In the absence of candidates under item 1 and 2 above by transfer from any other service on the Technical Education Department. or 4. In the absence of qualified candidates under item 1, 2 and 3 by direct recruitment.” The qualifications prescribed under the amended rules are as follows: “2. Lecturer/Post Diploma Transfer/promotion Lecturer Direct recruitment Degree in the appropriate branch of Engineering with not less than 60% marks in the qualifying examinations, in the case of wpc 6952/2009, etc. 4 promotions from the feeder category 60% marks will not be insisted upon. Note:- (1) Diploma in the appropriate branch of Engineering or Technology obtained after undergoing a regular course of study for not less than 3 years with 60% marks in the qualifying examination and a pass in Sections and of AMIE will be considered as equivalent to a degree in Engineering for purpose of transfer. (2) Post Diploma Lecturer shall be an addition to the cadre of Lecturer.” As per the amendment of the rules in 1989, Clause 5 which is described as a protection clause, provided certain relaxations in respect of persons who are already in service and in the feeder category before the date of commencement of the amended rules. The said provision reads as follows: “(5) Nothing contained in the Kerala Technical Education Service (Amendment) Rules, 1989 shall apply to those in the feeder category to the above post who are already in service before the date of commencement of the said rules. But the personnel promoted, if any during the interim period (i.e. from 23.9.1984 to the date of issue of this order) shall not be adversely affected.” The amended rules are effective from 23.9.1984. 4. The present controversy, normally, could not have arisen in the light of the fact that the amendment of the rules was upheld by this Court in the decision reported in Radhakrishnan v. Sunoj (2000 (1) KLT wpc 6952/2009, etc. 5 774 - DB). On the interpretation of Clause 5 of the amended rules, it was held by the Division Bench that only persons belonging to the feeder categories are governed by it, apart from persons who were promoted during the interim period. 5. It is the case of the degree holders that Clause 5 of the amendment protects only persons who are actually in the feeder category as on 23.9.1984. It will not apply to persons who become qualified for promotion based on the unamended rules on a day later than 23.9.1984 in terms of the pre existing rules. It is pointed out that the protection under the rules is only to the persons who are already in the feeder category as on the date of coming into force of the amendment, but because of the amended rules, are unable to get promotion in terms of the new rules. 6. Before going further, it will be profitable to consider the requirement of the pre existing rules and the amended rules. 7. Under the Rules of 1967, it can be seen that for the post of Lecturer, the method of filling up was by transfer from the categories of Assistant Lecturers in Polytechnics and Instructors in Engineering and Draftsman in Junior Technical Schools and in the absence of any suitable candidates from the said category, by transfer from any service. 8. Under the amended rules, the method provided shows that it is by wpc 6952/2009, etc. 6 transfer from an equated category like Instructor Grade I in Engineering Colleges/Workshop Superintendent in Polytechnics/Superintendents of Technical High Schools. This is provided as item (1). Under item (2), in the absence of qualified candidates under item (1), appointment will be by transfer from Kerala Technical Education Subordinate Service from the category of Assistant Lecturers/Instructor in Engineering/Draftsman Grade I/Foreman belonging to the branch of Engineering/Technology. Item (3) states that in the absence of candidates under item (1) and (2), appointment will be by transfer from any other service on the Technical Education Department. With regard to qualification also, what is discernible on a reading of the amended special rules, is that the same has also underwent a change. Under 1967 rules, the qualification prescribed was degree in appropriate branch of Engineering or Technology with two years provisional experience in Engineering or Technology. The alternate qualification as far as diploma holders are concerned, was diploma in the appropriate branch of Engineering or Technology with 60% marks in the final year examination and 10 year teaching experience. In the Note it was specified that a pass in Sections A & B of the A.M. I.E. (India) will be considered as equivalent to diploma with 60% marks. Under Note (2), it was specified that for transfer as Lecturer from the category of Assistant wpc 6952/2009, etc. 7 Lecturers/Instructors in Engineering/Draftsman, eight years service for diploma holders and two years service for degree holders will be sufficient. 9. When we come to the 1989 rules, it can be seen that as far as promotions of the feeder category from among degree holders are concerned, 60% marks will not be insisted upon. The qualification for transfer provided is diploma in the appropriate branch of Engineering or Technology obtained after undergoing a regular course of study for not less than 3 years with 60% marks in the qualifying examination and a pass in Section A and B of AMIE. 10. How the dispute presently arose, is described in W.P.(C) No.6952/2009 thus: The petitioner is a degree holder and working as Workshop Instructor. The academic qualification of B.Tech was acquired in the year 2007. He was promoted as Workshop Instructor on 22.3.1990 after acquisition of Diploma in Mechanical Engineering in 1989. It is pointed out that based on the Special Rules of 1989 a provisional seniority list was published which was finalised as per Exts.P2 and P2(a) on 28.11.2008. It is pointed out that in the light of Ext.P3 judgment of this Court in W.P.(C) No.26027/2005 it can be seen that degree is essential qualification for promotion to the post of Lecturer. The petitioner complains that in spite of the express provisions of the statutory rules and wpc 6952/2009, etc. 8 the dictum laid down by this Court, by Exts.P4, P5 and P6 the Government ordered that persons in the category of Engineer Instructor / Workshop Foreman / Workshop Instructor / Demonstrator who were in service prior to 23.9.1984, are also entitled to be promoted as lecturer. The petitioner challenges these orders as they are not in tune with the amended special rules. 11. In W.P.(C) No.6607/2010 the two petitioners are working as Workshop Instructor. They are also B.Tech holders. The challenge is to the very same Govt. Orders. 12. In W.P.(C) No.9599/2010 the petitioners are working as Workshop Instructors and are having B.Tech qualification. Therein also, Exts.P4, P5 and P6 Govt. Orders are under challenge. Exts.P7 and P8 are respectively the circulars issued by the Department inviting list of incumbents who have acquired B.Tech degree or its equivalent during the period from 1.1.2007 to 31.12.2007, along with the relevant documents, so as to prepare seniority list as well as select list for appointment to the post of Lecturer and equated categories in Polytechnics as well as request to forward details of 1st class diploma holders and who have entered into service as Workshop Instructor, Demonstrator, Draftsman Grade I and II before 23.9.1984 in terms of Ext.P6. Ext.P10 therein is the seniority list of wpc 6952/2009, etc. 9 Workshop Foreman/Engineering Instructors who entered into service prior to 23.9.1984. They are also challenging Exts.P4, P5 and P6. 13. The writ petitioners in W.P.(C) No.10014/2010 point out that they were petitioners 4 and 5 in W.P.(C) No.2923/2010 wherein a direction was issued directing the first respondent herein to consider and pass orders on Exts.P12 to P20 representations submitted by petitioners 1 to 9 therein. They are also relying on the amended special rules to contend for the position that ignoring the special rules of 1989, attempts are made to promote unqualified persons based on Clause 5 of the amended rules. The same is the case pleaded in W.P.(C) No.12184/2010 also. Therein the petitioners have produced Ext.P3, a copy of the minutes of the Department Promotion Committee which met on 16.3.2010. Ext.P1 is an order issued on the same date promoting certain persons who according to them, are ineligible for promotion in terms of the amended special rules. 14. The contentions of these petitioners are opposed by the contesting respondents some of whom are the petitioners in W.P.(C) No.24823/2010. They are diploma holders. The content and tenor of their argument is that Clause 5 of the amended special rules protects them in getting promotions. They are a vanishing class and in terms of the Govt. Orders which are under challenge in the other writ petitions they have been wpc 6952/2009, etc. 10 conferred the right to be promoted to the post of Lecturer and equated categories. It is submitted that the decision of the Division Bench in Radhakrishnan's case (2000 (1) KLT 774) will not go against their claims. They are also relying upon another judgment of this Court produced as Ext.P10 in O.P.No.34441/2000. 15. The respective petitioners in the said writ petition entered service on 31.3.1984, 20.2.1984 and 7.8.1978. They have obtained certain promotions after they entered in service. They are having First Class diploma or equivalent qualification in Mechanical Engineering. According to them, they are entitled to be promoted in terms of the unamended special rules. Ext.P2 is the seniority list of 24 persons like the petitioners in the writ petition who entered service before 23.9.1984. The petitioners have been ranked 18, 17, 19 and 24 and persons up to rank No.10 have been promoted. Ext.P3(a) is the seniority list of Assistant Lecturers prepared in terms of Ext.P3 and it is stated that “Assistant Lecturers were promoted as per Ext.P3(b) in the year 2006. They are not degree holders but were promoted in terms of the protection under clause 5 of the amended rules. Ext.P4 is the same Govt. Order which is produced in W.P.(C) No.9599/2010 and Ext.P5 is the same Govt. Order Ext.P5 produced in the said writ petition. It is pointed out that since the remaining persons were not wpc 6952/2009, etc. 11 promoted, some of the petitioners approached this Court in W.P.(C) No.7209/2008 and this Court directed the second respondent to consider and pass orders on the representations, as per Ext.P6 judgment. Ext.P7 is the reply stating that they will be considered for the year 2008 in accordance with their turn in the seniority list. Ext.P8 is the order under challenge in W.P.(C) No.12184/2010 by the degree holders. It is pointed out that 20 vacancies were existing which could be filled up in terms of Clause 5 and seeking for promotion they filed Exts.P11 to P11(c) representations. It is stated that contrary to the stand taken by the Government in the various orders, the third respondent has filed a statement in W.P.(C) No.22246/2010. It is stated that it is an attempt to deny the rightful claim of the petitioners. Ext.P13 is the order by which respondents 4 to 16 were promoted on 24.7.2010. The petitioners are challenging Exts.P13 and P14 orders. Against the select list they have filed statutory representations as per Exts.P15 to P15(c) 16. Respondents 4, 7, 9 and 10 have filed a detailed counter affidavit therein. 17. The controversy as noticed above, centres on the true effect of Clause 5 of the Amended Rules. Shri P.M. Pareed, learned counsel for the petitioners in W.P.(C) No.24823/2010 who is appearing for the diploma wpc 6952/2009, etc. 12 holders and who are also the contesting respondents in the other writ petitions, submits that going by the second method provided under the 1967 rules, persons in any categories are liable to be promoted in the absence of qualified persons in item 1 therein. Therefore, what is required is only that the diploma holders who are claiming promotion should be in the feeder category posts, i.e. by designation. It is stated that the contention raised by the degree holders that those persons should actually be in the feeder category on 23.9.1984, cannot be supported. It is pointed out by the learned counsel appearing for the degree holders that this interpretation runs contrary to the judgment of this Court in Radhakrishnan's case (2000 (1) KLT 774) which was followed by this Court in another judgment, in W.P. (C) No.24458/2005 produced asExt.P3 in W.P.(C) No.9599, 6607 and 6952 of 2010. In that view of the matter, the true effect of the Division Bench decision will have to be examined. 18. The facts of the case considered by the Division Bench in Radhakrishnan's case (supra) show that the writ petition was filed by the diploma holders challenging the amendment of the rules in 1989. The learned Single Judge upheld the claim of diploma holders under Clause 5 and the Division Bench reversed the judgment. Para 1 of the judgment wpc 6952/2009, etc. 13 shows that the diploma holders challenged the prescription of degree qualification for promotion as lecturer and also sought for a direction to promote them as Lecturers without insisting upon degree qualification. It was held by the learned Single Judge that going by Clause 5, it was not a requirement that those in the feeder category should be in that category before the commencement of the rules. It was held that the requirements were complied with if they are already in service on the relevant date, viz. 23.9.1984. This conclusion was challenged before the Division Bench by various persons including persons who filed writ appeals after obtaining leave. The Division Bench held that the interpretation placed by the learned Single Judge will frustrate the purpose of the amendment. It was held that if the said interpretation was adopted, all persons in service prior to 23.9.1984 will have to be granted promotion even though they are not in the feeder category. The explanatory note to the rule was also examined. The conclusions of the Division Bench are clear from paragraphs 6 and 7 which are extracted below: “6. The interpretation given by learned Single Judge would frustrate the purpose for which the amendment has been brought in. The provision conveys the intention that the insistence is on the person being in the feeder category before the date of commencement of the Rules on 23.9.1984. Otherwise, persons who are not in the feeder wpc 6952/2009, etc. 14 category have to be accommodated indefinitely and that cannot be the intention. It may be a never-ending process. Explanatory note appended to the notification reads as follows: "According to the amendments made to the Kerala Technical Education Service Rules as per G.O.(P) 160/87 H. Edn. dated 28.5.1987 degree with 60% marks in the final examination in the appropriate branch of Engineering or Technology has been made essential for the posts of Lecturer in Polytechnics, Instructor Grade I in Engineering Colleges, Workshop Superintendent in Polytechnics and Superintendents in Technical High School. The Rules have been made with retrospective effect from 23.9.1984. On the issue of the Government Order, Service Organisations have represented that by the Government Order promotional chances of Diploma holders already in service have been completely shut out and therefore the Government Order should be revised. It has also been represented that insistence of 60% marks for even the inservice hands for promotion cause undue hardship. The matter was discussed with the Organisations and it has been decided to give protection to those in the feeder categories in service on the date of issue of Government order for promotion. Also in the last Pay Revision, a separate cadre of Head of Section has been created in Polytechnics. Hence qualification and method of appointment of Head of Section have to be prescribed. This notification is intended to achieve the above object. wpc 6952/2009, etc. 15 (underlining for emphasis) Though explanatory note does not form part of the Rule, and need not be looked into when the provision is clear, it throws light if there is ambiguity. If the interpretations given by learned Single Judge are accepted, then, in effect, the implementation of the amendment to the Special Rules has to be postponed till the appointment of the last person in service, even not in the feeder category as Lecturer. That certainly cannot be an intention when the object of the amendment is taken into consideration. 7. It has to be noted that Cl. (5) deals with two categories of cases. One relates to those who are in the feeder category on the relevant date and those who are promoted during the interregnum. This is clear from a reading of Clause (5) itself. If the interpretation given by the learned Single Judge is accepted, there would be a third category covered by Cl. (5). Then the categories would be: (a) those promoted during the interregnum i.e., from 23.9.1984 to the date of issue of the order (21.12.1989), (b) those who are in the feeder category before the commencement of the Rules and (c) those who are not in the feeder category, but are holding some other posts. Such a contemplation cannot be spelt out from the Rules. The concession was extended to persons in the feeder category at the relevant time and not to those who come to the feeder category after the stipulated date. The other category of persons who got the benefit related to those who were in the feeder category and got wpc 6952/2009, etc. 16 promotion during the interim period (i.e., from 23.9.84 to the date of issue of the order i.e., 19.12.1989). The amended provision gave the relaxation to those who got promotion to the feeder category. In other words, it is only those who are in the feeder category get the exemption from requisite qualification when they get promotion. It cannot certainly be the intention to cover those not in the feeder category during the interim period to get the exemption. A combined reading of the relevant provision makes this position clear. Even without the aid of the Explanatory Note this position emerges.” 19. Therefore, the findings of the Division Bench in the decision in Radhakrishnan's case (supra) are: (a) the insistence of the amended rules as per Clause 5 is that person should be in the feeder category on the date of commencement of the rules on 23.9.1984; (b) It is not the intention that persons who are not in the feeder category had to be accommodated indefinitely as it will be a never ending process; (c) the following sentence in the explanatory note was given emphasis by the Division Bench, viz. “the matter was discussed with the Organisations and it has been decided to give protection to those in the feeder categories in service on the date of issue of Government order for promotion; (d) It was held by the Division Bench that if the interpretations given by the learned Single Judge are accepted, then, in effect, the implementation of the amendment to the wpc 6952/2009, etc. 17 Special Rules has to be postponed till the appointment of the last person in service, even not in the feeder category as Lecturer. It is not the intention of the amendment. It was further held that if the interpretation given by the learned Single Judge is accepted, there will be three categories of persons, viz. (a) those promoted during the interregnum i.e., from 23.9.1984 to the date of issue of the order (19.12.1989), (b) those who are in the feeder category before the commencement of the Rules, and © those who are not in the feeder category, but are holding some other posts. It was emphatically held that “such a contemplation cannot be spelt out from the Rules.