IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931 WP(C).No. 6558 of 2008(E) -------------------------------------- PETITIONER(S): ----------------------- DR.G. SOBHANA, PROFESSOR AGRICULTURAL EXTENSION, COLLEGE OF AGRICULTURE VELLAYANI, THIRUVANANTHAPURAM. BY ADV. MR.P.V.JAYACHANDRAN RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE AGRICULTURAL PRODUCTION COMMISSIONER SECRETARIAT, THIRUVANANTHAPURAM. 2. THE VICE CHANCELLOR KERALA AGRICULTURAL UNIVERSITY KERALA AGRICULTURAL UNIVERSITY POST VELLANIKKARA, TRISSUR. 3. THE REGISTRAR KERALA AGRICULTURAL UNIVERSITY KERALA AGRICULTURAL UNIVERSITY POST VELLANIKKARA, TRISSUR. 4. THE COMPTROLLER KERALA AGRICULTURAL UNIVERSITY KERALA AGRICULTURAL UNIVERSITY POST VELLANIKKARA, TRISSUR. R1 BY SR.GOVERNMENT PLEADER MR.BENNY GERVACIS R2 TO R4 BY ADV. MR.K.P.MUJEEB, SC, KERALA AGRI. UNIVERCITY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2010, ALONG WITH WPC NO.128 OF 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 6558/2008-E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.GA/C2/24983/89 DATED 24/11/1989. EXT.P2: COPY OF THE ORDER NO.GA/C2/33087/02 DATED 25/06/2005. EXT.P3: COPY OF THE ORDER GO(P)NO.171/99/HEDN. DATED 21/12/1999. EXT.P4: COPY OF THE ORDER GO(P)NO.40/2002/H.EDN. DATED 30/04/2002. EXT.P5: COPY OF THE ORDER NO.GA/C2/23346/99(446) DATED 25/08/2007. EXT.P6: COPY OF THE PROCEEDINGS NO.GA.C2/7953/87 DATGED 23/03/1988. EXT.P7: COPY OF THE ORDER NO.GA/C2/7953/87 DATED 20/04/1988. EXT.P8: COPY OF THE ORDER G.O.(P)NO.179/90/AD DATED 25/06/1990 WITH EFFECT FROM 01/01/1986. EXT.P9: COPY OF THE LETTER NO.GA/C1/6158/88 DATED 20/03/1991. EXT.P10: COPY OF THE LETTER NO.GA/C4/35716/92 DATED 01/01/1993. EXT.P11: COPY OF THE COUNTER AFFIDAVIT DATED 05/11/1993 FILED BY THE 2ND RESPONDENT. EXT.P12: COPY OF THE AMENDED 1ST STATUTE. EXT.P13: COPY OF THE COMON JUDGMENT DATED 14/11/2007 IN WP(C) NO. 10496/2006. EXT.P14: COPY OF THE COMMON JUDGMENT DATED 03/04/2008 IN W.A. NO. 680/2008. EXT.P15: COPY OF THE COMMON JUDGMENTS IN CIVIL APPEAL NOS.2540, 2541 AND 2542 OF 2009. EXT.P16: COPY OF THE LETTER NO.F-3-1/94(PS)-6 DATED 05/10/2000. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. -------------------------------------------------------------- W.P. (C) Nos. 34023, 34165, 34983, 36074, 37285, 37391 & 37651 of 2007 & 128, 152, 277, 284, 412, 459, 460, 571, 572, 573, 772, 773, 1506, 2672, 4331 & 6558 of 2008 -------------------------------- Dated this the 19th day of February, 2010. JUDGMENT Balakrishnan Nair , J. W.P.(C) No.6558 of 2008 The point that arises for decision in this writ petition is whether the petitioner, who got non cadre promotion as Associate Professor with effect from 6..4.1988, can claim that she should be treated as an Associate Professor (cadre) with effect from the said date. The brief facts of the case are the following. 2. The petitioner joined the service of the Kerala Agricultural University as Junior Assistant Professor on 6.4.1978. She was directly recruited as Assistant Professor on 26.11.1983. The pay revision order of 1983, G.O.(P) No.515/85/Fin. Dated 16.9.1985, implemented with effect from 1.7.1983, provided that grade promotion shall be granted to all Government servants who completed 10 years' service in the entry cadre and completed 10 W.P.C Nos. 6558 of 2008 & Conn. Cases 2 years' service in the first promoted post or 20 years' in the entry post and first promoted post taken together. Corresponding benefits were extended to the teachers of the Kerala Agricultural University by the Government. The said scheme sanctioned by the Government provided for non cadre promotion to an Assistant Professor who has total 10 years service including the service in the cadre of Junior Assistant Professor. Out of the said ten years' service, two years' service must be in the cadre of Assistant Professor. The petitioner became eligible for the said promotion and she was promoted as Associate Professor (non cadre) by Ext.P1 order dated 24.11.1989 with effect from 6.4.1988. Later, the UGC/ICAR scheme was implemented in the University with effect from 1.1.86. The details of the scheme are contained in Ext.P8 dated 25.6.1990. The second schedule of Ext.P8 contained the existing scales of pay and the revised scales of pay applicable to various teaching posts. The scales of pay of Assistant Professor and Associate Professor existing and provided under Ext.P8 were the following: W.P.C Nos. 6558 of 2008 & Conn. Cases 3 Designation Existing Revised Assistant Professor: 1500-60-1560-75-2685 2220-75-2500-100-4000 Associate Professor: 1950-70-2100-85-2950 3700-125-4950-150-5700 3. By virtue of the non cadre promotion as Associate Professor, the petitioner was drawing the scale of pay of 1950-2950. Ext.P8 scheme provided that the non cadre promotion made after 1.2.1988 should be treated as cancelled. Later, the said cut off date was modified as 25.6.1990. The result was that the petitioner need not forgo the benefit she obtained under the non cadre promotion, as she was granted non-cadre promotion with effect from 6.4.1988.. 4. The executive committee of the Kerala Agricultural University on 13.3.1991 decided to induct non cadre Associate Professors, like the petitioner, to the scale of pay of Associate Professors, that is in the scale of pay of 3700-5700. The said decision was approved by the General Council held on 28.11.1992. Certain teachers of the University challenged the said decisions by filing O.P. No.13624 of 1993 before this Court. The said O.P. was allowed. But, later, a Division Bench of this Court reversed the said judgment and dismissed the original petition. In the meantime, the W.P.C Nos. 6558 of 2008 & Conn. Cases 4 statutes of the Kerala Agricultural University were also amended in the light with the UGC/ICAR scheme by Ext.P12 with effect from 6.9.1994. A few teachers similarly placed like the writ petitioner approached this Court claiming that they should be inducted to the cadre of Associate Professor with effect from the date they got non cadre promotion to that post. Those writ petitions were heard and disposed of by Ext.P13 judgment by a learned single Judge of this Court holding that the petitioners therein are entitled to get the scale of pay of Associate Professors with effect from 1.1.1986 or with effect from the date they were given non cadre promotion, whichever is later. Their claim for seniority with effect from the date of non cadre promotion was not upheld by the learned single Judge. The said judgment was affirmed by the Division Bench of this Court by Ext.P14. The University carried the matter in appeal. The Apex Court considered the entire matter and dismissed the appeal, affirming the judgment of the Division Bench by Ext.P15. 5. The writ petitioner submits that though she was liable to be inducted in the scale of pay of Associate Professor with effect from 6.4.1988, so far, the same has not been done. She acquired Ph.D W.P.C Nos. 6558 of 2008 & Conn. Cases 5 on 10.8.1990. But recently Ext.P5 order has been passed as per which she was inducted to the post of Associate Professor with effect from 24.1.1990 under the 1986 UGC scheme. As per the same order, she was inducted into the 1996 UGC scheme with effect from 1.1.1996. She is also granted career advancement promotion as Professor with effect from 10.8.1998. In that context, the present writ petition was filed challenging Ext.P5 and also claiming cadre promotion as Associate Professor with effect from 6.4.1988 and seeking consequential benefits in the matter of promotion to the cadre of Professor. The prayers in the writ petition are the following: “(a) Issue a writ of certiorari or appropriate writs, directions or orders calling for the records leading up to Ext.P5 and quash Ext.P5 to the extent to which the induction granted to the petitioner as Associate Professors with effect from 24.1.90 under 1986 UGC Scheme and career advancement promotion to the post of Professor granted to the petitioner is with effect from 10.8.98. (b) Declare that the petitioner is legally entitled to get inducted into 1986 UGC scheme as Associate Professor in 3700-5700 pay scale with effect from 6.4.88 and to get the career advancement promotion to the post of Professor in Rs.16400-22400 pay scale with effect from 6.4.96 in 1996 UGC Scheme. (c) Declare that the petitioner is legally entitled to get the arrears of salary and other allowances with increment W.P.C Nos. 6558 of 2008 & Conn. Cases 6 with effect from 6.4.88 in Rs.3700-5700 and in Rs.16400- 22400 pay scale with effect from 6.4.96. (d) Issue a writ of mandamus or appropriate writs directions or orders directing the respondents 3 and 4 to re-fix the salary of the petitioner in 3700-5700 pay scale with effect from 6.4.88 and Rs.16400-22400 pay scale with effect from 6.4.96, disburse the consequential arrears and increments forthwith.” 6. The respondents have filed a counter affidavit supporting the impugned order and also stating that the petitioner being a non cadre promotee to the post of Associate Professor, she is not entitled to be treated as in that cadre with effect from 6.4.1988. She can be placed in that cadre only according to her seniority/turn and in accordance with the norms governing the promotion to the cadre of Associate Professor. She has been granted the due date as per Ext.P5 and further promotion as Professor with effect from 10.8.1998. There is nothing illegal or irregular with the promotions granted to her under Ext.P5, it is submitted. 7. We heard the learned counsel on both sides. We also heard the learned Government Pleader appearing for the first respondent. 8. The learned counsel for the petitioner took us through the W.P.C Nos. 6558 of 2008 & Conn. Cases 7 UGC scheme Ext.P8 and also the decisions of this Court in the case of similarly placed persons and prayed for granting the reliefs sought in the writ petition. 9. The learned standing counsel on the other hand submitted that the petitioner cannot be treated as having come to the cadre of Associate Professor with effect from 6.4.1988. She may be entitled to the salary of that post from that date. But she is eligible to be treated as promoted to that cadre only from 24.1.1990. Therefore, she has been rightly placed in the cadre of Professor with effect from 10.8.1998. 10. We have considered the rival submissions made at the Bar and went through the pleadings and materials placed on record. Para 5.07 of Ext.P8 reads as follows: “5.07. Promotions made before the announcement of the revised scales of pay on 1.2.1988 by the I.C.A.R will not be reopened. However, in such cases the benefit of revision will be available to teachers only from the date of promotion. The existing merit promotion scheme viz., assessment, norms and non-cadre promotion made after 1.2.1988 will be treated as cancelled. No such promotion schemes shall be in vogue from the date of issue of these orders.” 11. It is common ground that cut off date 1.2.1988 mentioned W.P.C Nos. 6558 of 2008 & Conn. Cases 8 above, has been modified as 25.6.1990. If that be so, the non cadre promotion obtained by the petitioner on 6.4.1988 cannot be ignored. That means, on induction to UGC/ICAR scheme, she is entitled to get the equivalent scale of pay of the existing scale of pay that she was drawing. She was drawing pay in the scale of pay of Rs.1950-2950 and the corresponding scale of pay in the UGC scheme is Rs.3700-5700. The entitlement of the petitioner to that scale of pay is supported by Exts.P13 to P15 decisions. But, she cannot claim seniority in the cadre of Associate Professor with effect from 6.4.1988. For that, she has to wait for her turn. As per the relevant scheme, with effect from the date she is found eligible for placement in the cadre of Associate Professor, she can claim seniority. There were several seniors of the petitioner in the cadre of Assistant Professor who were directly recruited to that cadre. Since they did not have service as junior Assistant Professor, while they were waiting to complete 10 years' service in the post of Associate Professor for grade promotion, petitioner stole a march over them taking advantage of her service in the cadre of junior Assistant Professor. So, if her non cadre promotion to the grade of Associate W.P.C Nos. 6558 of 2008 & Conn. Cases 9 Professor is treated as regular, the same will affect her seniors in the post of Assistant Professor. 12. The University has found as per Ext.P5 that her date of eligibility for promotion as Associate Professor is 24.1.1990. If she is treated as promoted to the cadre of Associate Professor only on 24.1.1990, her turn for Professor arises only on 10.8.1998. Therefore, what is done under Ext.P5 is legal and valid. But she is entitled to draw the scale of pay of Associate Professor with effect from 6.4.1988. But that benefit will not enable the petitioner to claim seniority in that cadre with effect from that date. If the benefits flowing from Ext.P5 as clarified above, are not released to the petitioner, the same shall be released to her within three months from the date of receipt /production of a copy of this judgment. The writ petition is disposed of as above W.P. (C) Nos. 34023, 34165, 34983, 36074, 37285, 37391 & 37651of 2007 & 128, 152, 277, 284, 412, 459, 460, 571, 572, 573, 772, 773, 1506, 2672 & 4331 of 2008 The case of the petitioners in these writ petitions are identical to the case of the petitioner in W.P.(C) No.6558 of 2008. W.P.C Nos. 6558 of 2008 & Conn. Cases 10 We are told that all the petitioners in these writ petitions got non cadre promotion as Associate Professor before 25.6.1990. Therefore, it is ordered that the the directions in the judgment in W.P. (C) No. 6558 of 2008 will govern these cases also. The writ petitions are disposed of accordingly. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge vps W.P.C Nos. 6558 of 2008 & Conn. Cases 11