IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WA.No. 586 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.14661/1999 Dated 24/01/2008 .................... APPELLANT(S): ADDITIONAL 6TH RESPONDENT: ---------------------------------------- J.J.ARSHAD BEEGUM, PRESENTLY WORKING AS L.D.TYPIST, IQBAL COLLEGE, PERINGAMALA, THIRUVANANTHAPURAM. BY ADV. SRI.KOSHY P.THOMAS SRI.SHAJI THOMAS PORKKATTIL RESPONDENT(S): PETITIONER & RESPONDENTS 1 TO 5: ----------------------------------------------- 1. NAJEEB.A, NIZAR MANZIL, DAVIPURA, PERINGAMALA, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE PRINCIPAL SECRETARY TO THE GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM. 5. THE MANAGER, IQBAL COLLEGE, PERINGAMALA. 6. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. ADV. SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE FOR R1 SRI.B.S.SWATHY KUMAR FOR R1 GOVERNMENT PLEADER FOR R2-4 SMT.R.BINDU SRI.NAGARAJ NARAYANAN FOR R5 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17.09.2009, ALONG WITH WA NO.587 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING : K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ WA NOS.586 & 587 of 2008-D ------------------------------------------------------------------ Dated 17th September 2009 Judgment Balakrishnan Nair, J. OP Nos.14661/99 and 6313/97 were heard and disposed of by a common judgment dated 24.01.2008 by the learned Single Judge. The petitioner in OP No.6313/97 (the additional 6th respondent in OP No.14661/99) has preferred these two appeals. Since these appeals are directed against the very same judgment, they are heard and disposed of by this common judgment. The point that arises for decision in this appeal is whether an LD Typist working in a private college can be denied promotion to the vacancy in the post of LD Clerk on the ground that the said Typist is working in a leave vacancy. WA No.587/08 2. This appeal is treated as the main case for the purpose of referring to the exhibits. The appellant is the writ petitioner. She was appointed as LD Typist in Iqbal College, Peringamala, by Ext.P1 order dated 03.05.1993 with effect from the said date, in a leave vacancy which arose on 01.09.1992 and was to expire on WA 586 & 587/08 2 31.08.1996. The said appointment was approved by the Deputy Director of Collegiate Education, by Ext.P2 order dated 25.11.1994. In the meantime, a vacancy arose in the cadre of LD Clerk on 01.01.1994 and another vacancy on 01.06.1994. The appellant filed a representation on 25.07.1994, claiming promotion to that post. The Principal forwarded her representation to the Director of Collegiate Education. The Director, by Ext.P5 communication dated 28.7.1994, informed the Principal that the LD Typists of private colleges can also be considered for promotion as LD Clerks. But, the Management, ignoring her claim, appointed respondents 5 and 6 as LD Clerks from the open market on 22.12.1994. In the meantime, one more vacancy of LD Clerk arose and the Management appointed the 7th respondent in that vacancy on 18.3.1995. 3. The claim of LD Typists for appointment to the posts of LD Clerk is mainly founded on an executive order Ext.P3 dated 25.10.1991. But, in the meantime, the relevant statute of the Kerala University First Statutes, 1999 was amended by notification published in gazette dated 12.3.1995, by including the Lower Division Typists with SSLC and who have passed the clerical test conducted by the Public Service Commission, in the feeder category for WA 586 & 587/08 3 promotion to the post of LD Clerk. 4. On 12.7.1995, the 8th respondent was appointed in a leave vacancy of LDC, which was available from 12.07.1995 to 31.03.1997. By Ext.P6 order dated 18.10.1995, the Deputy Director of Collegiate Education declined to grant approval of appointment of the 7th respondent, taking into account, the representation of the appellant. Later, without reference to the above letter, by Ext.P8 order dated 8.3.1996, the Deputy Director approved the appointments of respondents 5 to 7. Subsequently, the appointment of the 8th respondent was also approved by the Deputy Director, for the period from 12.7.1995 to 31.03.1997. Against Ext.P8 order of the Deputy Director dated 8.3.1996, the appellant moved the Government by filing Ext.P9 representation dated 05.06.1996. 5. She also, in the meantime, moved her Principal, by filing Ext.P10 representation, praying that she may be allowed to continue in the post of LD Typist as the vacancy in which she was working was extended for a further period of three years from 1.1.1996 to 31.08.1999. The Principal forwarded her representation to the Management. The appellant submits, the Management, under coercion, took a relinquishment letter from the appellant on WA 586 & 587/08 4 31.8.1996, in which she undertook that she will not claim any vacancy that may arise in the cadre of LD Clerk. The Management, thereafter, issued Ext.P13 appointment order dated 11.09.1996, extending her appointment from 1.9.1996 in the cadre of LD Typist. Soon, another vacancy of LD Clerk arose on 1.10.1996. The appellant submitted Ext.P14 representation before the Director of Collegiate Education on 22.1.1997, pointing out that the Management has obtained a relinquishment letter from her on 31.8.1996. On coming to know of the said representation, the Management issued Ext.P15 memo of charges to her on 9.3.1997, proposing to take disciplinary action against her, to which she submitted Ext.P16 reply. In the meantime, the 8th respondent was again appointed as LD Clerk in the vacancy from 01.04.1997 to 30.09.1997. 6. Feeling aggrieved by the denial of promotion to the post of LDC and the approval of appointments made by the Manager of open market candidates in that post, by the Deputy Director, the appellant approached this Court by filing OP No.6313/97, praying to quash Ext.P8 and also seeking a declaration that she is entitled to be considered for promotion to the post of LDC from 01.09.1994. She WA 586 & 587/08 5 also prayed for a direction to respondents 3 and 4 to take appropriate action to ensure her promotion to the post of LDC. She further prayed that the appointments of respondents 5, 6 and 7 may be approved only subject to her claim for promotion as LDC with effect from 01.09.1994. During the pendency of the OP, the Management issued Ext.P17 memo of charges to the appellant on 01.07.1997. On 21.2.1998, the Director of Collegiate Education directed the Management to keep a post of LD Clerk vacant, until appropriate directions are received from the Government. This Court, by interim order dated 20.08.1999 in CMP No.33290/99 in OP No.6313/97, ordered that all promotions made to the post of LD Clerk will be subject to the result of the OP filed by the appellant. Later, the Manager by order dated 31.08.1999, posted the appellant as LD Clerk w.e.f. 1.9.1999. This Court also issued an interim order on 5.9.1999 in OP No.6313/97, directing the Management that no punishment shall be imposed on the appellant without getting permission from this Court. On 19.05.2001, the appellant's appointment as LD Clerk with effect from 01.09.1999 was approved by the Deputy Director of Collegiate Education. WA 586 & 587/08 6 7. OP No.14661/99 was filed by the 8th respondent herein, mainly aggrieved by the non-approval of his appointment from 01.04.1997 to 30.09.1997 and also claiming appointment to the regular vacancy which arose in the post of LD Clerk from 01.10.1997. He was constrained to approach this Court as his appointment was not approved for the aforementioned spell because of the pendency of the OP filed by the appellant herein. 8. In both the cases, counter affidavits were filed by the contesting parties. The learned Single Judge heard the Original Petitions together and dismissed OP No.6313/97 filed by the appellant and allowed OP No.14661/99 filed by the additional 8th respondent. 9. The reason for rejecting the claim of the appellant is mentioned in para 4 of the judgment under appeal. The relevant portion of the judgment reads as follows : “I have considered the rival contentions. Admittedly, the petitioner in OP No.6313/97 was appointed only in a leave vacancy for the period from 4.5.1993 to 31.8.1996. Therefore, on the expiry of that period, she will have to go out of service. The person appointed in a leave vacancy is not a regular member of the service of the College. That being so, petitioner is not entitled to any rights or privileges as a WA 586 & 587/08 7 regular member of service including promotion to higher post. As such, the petitioner in OP No.6313/97 is not eligible for any of the reliefs prayed for in that Original Petition. Accordingly, OP No.6313/97 is dismissed.” The main point that arises for consideration is the correctness of the finding of the learned Single Judge made in the above quoted para. Before rendering a decision on the above point, we will refer to the relevant statutory provisions. 10. S.63 of the Kerala University Act says that the provisions in Chapter VIII of the Act, concerning teachers will apply to non- teaching staff of private colleges also. S.63 reads as follows : “Non-teaching staff of private colleges (1) The provisions of this Chapter shall, so far as may be, apply to the non-teaching staff of the private colleges. Subject to this, their method of appointment, pay and other conditions of service shall be such as may be prescribed by the Statutes.” S.57 deals with appointment of teachers. Sub-section (4) thereof provides that all higher posts shall be filled up by promotion from among teachers in the lower grade. S.57 reads as follows : 57. Appointment of teachers in private colleges:- (1) Appointments to the posts eligible to receive salary from the Government shall be made only against posts sanctioned by the WA 586 & 587/08 8 Government or by such officers as may be authorised by the Government. (1A) Appointments to the lowest grade of teacher in each department of a private college shall be made by the educational agency by direct recruitment on the basis of merit. (2) Appointments of Principals shall be made by the educational agency by promotion from among the teachers of the college or of all the colleges, as the case may be, or by direct recruitment. (3) Where the appointment of Principal is made by promotion, the educational agency shall make the appointment on the basis of seniority-cum-fitness. (4) Appointments to the posts, other than those referred to in sub- section (1A) and (2) shall be made by the educational agency by promotion from among the teachers of the college or of all the colleges, as the case may be, on the basis of seniority-cum-fitness, or if none among them is fit for promotion, by direct recruitment. (5) For making appointment under this section by direct recruitment, the post shall be advertised in such manner as may be prescribed by the Statutes. (6) Notwithstanding anything contained in this Act, the Statutes, Ordinances and Regulations made thereunder - (a) a person appointed as teacher in a private college in a temporary vacancy on or after the 14 th day of March 1974 and continuing as such, shall be appointed as teacher in any permanent vacancy or any temporary vacancy of longer duration that may arise, after such appointment in the temporary vacancy, in the private college or, as the case may be, any of the private colleges under the management of the educational agency within the University area. WA 586 & 587/08 9 (b) a teacher relieved from a private college on or after the 14 th day of March 1974, due to the abolition of a course of study in that private college or the cessation of the period for which he was appointed or for any other reason except disciplinary action against him, shall be given preference in the matter of future appointments in the private college or as the case may be, any of the private colleges under the management of the educational agency within the University area. (c) Any dispute arising or pending between the management of a private college and the teacher of that college, in respect of any matter coming under clause (a) or (b) shall be decided in accordance with the provisions of this Act and the Statutes made thereunder. Explanation - Where the number of claimants under clause (a) or clause (b) is more than the number of vacancies, the order of preference for appointment shall be in accordance with the date of first appointment of the claimants under the educational agency within the University area. (7) The educational agency shall not abolish a course of study in a private college without the prior approval of the University. (8) Every appointment under this section shall be made by a written order of the Manager in such form as may be prescribed by the Statutes, communicated to the person to be appointed, with copy to the University. (9) Every appointment under this section shall be reported to the University for approval. (10) Any person aggrieved by any appointment under this section may appeal to the Appellate Tribunal. (emphasis supplied) WA 586 & 587/08 10 Sub-section 6(a) of the above quoted section provides that a teacher in a private college in a temporary vacancy appointed on or after 14.3.1974 and continuing as such, shall be appointed as teacher in any permanent vacancy or temporary vacancy of longer duration that may arise after his initial appointment. Clause (b) of Sub-section (6) says that a retrenched hand shall be preferred in future appointments. As the above provisions under S.57 apply mutatis mutandis to non-teaching staff also by virtue of S.63, a person appointed in a temporary vacancy after the commencement of the Kerala University Act, in a non-teaching post, is entitled to be absorbed in a regular vacancy or a temporary vacancy of longer duration, which may arise later. The appellant was entitled, as of right, to get appointment in the vacancy of LD Typist, which arose from 1.1.1996 to 31.8.1999, as a result of extension of leave of the incumbent concerned. 11. The statutes relevant in this case are those contained in Chapter 3 of the Kerala University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes 1979, dealing with the conditions of service of members of the non-teaching staff. Statute 41 deals with appointment to various posts including that of WA 586 & 587/08 11 LD Clerk. The relevant portion of that statute reads as follows : 41. Qualification for appointments - The minimum qualifications for the various categories of non-teaching staff in private colleges shall be as follows : Posts Qualifications (1) Senior Superintendent SSLC or equivalent examination with a pass in the Manual of Office Procedure and Account Test (Lower) conducted by the Public Service Commission. ......................................................................................................... ......................................................................................................... (5) Lower Division Clerk/ SSLC or equivalent qualification Lower Division Store Keeper/ and with a pass in the Manual of Lower Division Accountant Office Procedure for earning the third increment. (The non-clerical staff like Library/Laboratory Assistants, Gasmen/Specimen Collectors, Last Grade Staff who have 5 years service with SSLC and have passed the Clerical Test conducted by the Public Service Commission may be promoted on the basis of the common seniority in Lower cadre. Herbarium Keeper/Taxidermist who has 3 years service with SSLC and have passed the Clerical Test conducted by the Public Service Commission may be promoted on the basis of common seniority in the lower cadre. Lower Division Typists with SSLC and have passed Clerical Test conducted by the Public Service Commission may be promoted on the basis of common seniority in the lower cadre. Qualified hands if available, shall be given preference before recruiting persons from outside. Provided that the Lower Division WA 586 & 587/08 12 Typist,Herbarium Keeper/Taxidermist, Library/Laboratory Assistants, Gasmen, Specimen Collectors, Attenders and Last Grade Staff who are either in regular permanent service or have put in 3 years of service as on 31.3.1971 are eligible for appointment in the order of their seniority as LD Clerks. Their continuance as Lower Division Clerks shall, however, be subject to their passing in one of the four consecutive annual competitive tests conducted by the Kerala Public Service Commission for the low-paid employees for appointment as Clerks etc., after the commencement of the Statutes. Such of those who remain unqualified in the test even after the four consecutive chances shall be reverted to their original posts. In the case of any person whose promotion has already been approved by the Director of Collegiate Educational before the commencement of these Statutes, such promotion shall be deemed to have been validly made.” ........................................................................................................ .......................................................................................................” (emphasis supplied) 12. The Lower Division Typists were made eligible for appointment as LD Clerks with effect from 12.3.1995. The above quoted statute also provides that qualified hands, if available, shall be given preference before recruiting persons from outside. Statute 66 also reiterates that vacancies in higher grades shall be filled up by WA 586 & 587/08 13 persons, working in the lower grades and direct recruitment can be resorted to, if only no candidate is available for promotion. Statute 66 reads as follows : “66. Filling up of vacancies - Subject to the rules in force in similar Government Institutions regarding qualifications and method of appointment, the vacancies in the higher grades shall be filled up by promotion from the next lower categories, if qualified persons are available, according to seniority in the case of non-selection posts and according to merit and seniority in the case of selection posts and if there are no candidates available for promotion to the higher grades, the posts shall be filled up by direct recruitment by inviting applications and selection by the management in the manner laid down in these statutes.” Going by the above provisions in the Act and Statutes, a Lower Division Typist is entitled to be appointed in a vacancy that arises in the cadre of Lower Division Clerk provided he is qualified. Only after promoting such a hand, the Manager can go for fresh recruitment from the open market. 13. The point to be considered in this appeal is whether the above said benefit could be denied to a Lower Division Typist, who is working in a temporary vacancy. Going by the provisions of the statutes, we find that there is no distinction in the matter of selection to the post of regular vacancies or temporary vacancies. This is clear WA 586 & 587/08 14 from clause 2 of statute 43 of the Kerala University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes 1979. The relevant portion of the said statute reads as follows : “Constitution of Selection Committee for appointments ; - (1) In order to ensure that appointments of members of the non-teaching staff by direct recruitment are on the basis of merit, such appointments shall be made by the Educational Agency from a panel of three names for every vacancy recommended by a Selection Committee constituted by the Educational Agency consisting of the following members, namely : (a) One representative of the Educational Agency nominated by it who shall be the Chairman of the Selection Committee. (b) The Principal of the college concerned or the senior-most Principal in the case of colleges under a corporate management. (c) The Manager of the college or colleges as the case may be. (Note : For recruitment of Librarians, a Library Expert shall also be included in the Selection Committee. (2) Notwithstanding anything contained in clause (1) in the case of an educational agency which has voluntarily entered into a written agreement with the Government for the direct payment of salaries to the teachers and the non-teaching staff of its colleges, appointment of the members of non-teaching staff whether provisional or permanent, shall be made only from a list of persons prepared by a Selection Committee constituted by the Educational Agency and consisting of the following members, namely, ...........................................................................................”. (emphasis supplied) WA 586 & 587/08 15 The provisions in S.57(6)(a), which we have already quoted, says that a person working in a temporary vacancy is entitled to be absorbed as and when a regular vacancy arises or a temporary vacancy of longer duration arises, as of right. If that be so, we think, the contention that a person working in a temporary vacancy is ineligible to be considered for promotion to a vacancy arising in the higher grade cannot be accepted. S.57(4) or Statute 66 does not make any such distinction. If that was the intention of the Legislature and the statute making authority, the same would have been so stated specifically. Going by the general scheme of the Act and Statutes, it is clear that the Management can go for direct recruitment if only there is no eligible hand in the lower grade for promotion when a vacancy arises in a higher grade. So, the interpretation sought to be placed on the provisions of the Statutes to the effect that a person who works in a temporary vacancy, though, selected by a regular selection committee constituted under S.43 and eligible for absorption in a regular vacancy, cannot claim promotion, cannot be accepted. The concept of provisional/temporary appointment in Government service, has no application as far as appointments under the private colleges are concerned, where there is direct WA 586 & 587/08 16 payment system. A temporary hand is appointed under the Government under Rule 9(a)(i) of KS & SSR, when appointments cannot be made in accordance with the Rules. Such an appointee has no legal right to continue beyond the term of 180 days, prescribed in the Rules or entitled to be absorbed in temporary/regular vacancies, that may arise in the meantime. This is so, as he is not appointed after a selection process, as contemplated under the Special Rules. But, in this case, a person to be appointed to a temporary vacancy, has also to be selected, after following the due procedure for selection to a regular vacancy. A person appointed to a temporary vacancy in a private college is entitled to be accommodated in a temporary vacancy of longer duration or a regular vacancy, that may arise in the meantime. So, a person appointed in a temporary vacancy in a private college has to be considered as a member of the service and he cannot be equated with a Rule 9(a)(i) appointee, under the Government. If a person appointed in a temporary vacancy is entitled to be considered for appointment to regular vacancies, there is no reason, why he should not be considered for promotion also, to the vacancies arising in higher grade posts. Since we have already taken the view that the WA 586 & 587/08 17 appellant should be treated as a member of the service, even if she is appointed in a temporary vacancy, we have no doubt that such an appointee is entitled to be considered for promotion to vacancies, that may arise in higher grade posts, while she is in service. Therefore, we are not able to subscribe to the view taken by the learned Single Judge in the Judgment under appeal, concerning the claim of the appellant for appointment as LD Clerk. Accordingly, the judgment under appeal is reversed and OP No.6313/97 is allowed on the following terms : 1. It is declared that the appellant is entitled to get the first vacancy, that arose in the cadre of Upper Division Clerk, on or after 12.3.1995, the date on which Statute 41 was amended, including Lower Division Typist also, in the feeder category for promotion to the post of LD Clerk. 2. The appointments of LD Clerks made after 12.3.1995 are ab initio void, having been made ignoring the claim of the appellant. It is so declared. 3. The third respondent is directed to appoint the appellant as LD Clerk in the first vacancy that arose after 12.3.1995 and forward the necessary appointment order to the 2nd respondent. The 2nd WA 586 & 587/08 18 respondent shall take necessary steps to approve her appointment. 4. The appointments of LD Clerks made after 12.3.1995 shall be regulated with reference