IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 WP(C).No. 32034 of 2006(L) ------------------------------------- PETITIONER(S): ------------------------- SUNILKUMAR B., LECTURER SELECTION GRADE, DEPARTMENT OF CIVIL ENGINEERING, TKM COLLEGE OF ENGINEERING, KOLLAM. BY ADVS.MR.P.B.SURESH KUMAR MR.K.P.SUJESH KUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER AND SECRETARY, HIGHER EDUCATION (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 4. UNIVERSITY OF KERALA, REP. BY ITS REGISTRAR, THIRUVANANTHAPURAM. 5. PRINCIPAL, TKM COLLEGE OF ENGINEERING, KOLLAM. BY GOVERNMENT PLEADER MR.K.RAMESH FOR R1 & R2 BY ADV.MR.M.RAJAGOPALAN NAIR, SC, KERALA UTY. FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON 01/07/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.32034/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE G.O.(P) NO.81/90/H.EDN. DT. 27.3.90. P2:- COPY OF THE G.O.(P) NO.81/93 DT. 22.6.93. P2(a):- COPY OF THE ORDER ISSUED BY THE DIRECTOR OF TECHNICAL EDUCATION DT. 2.3.94. P3:- COPY OF THE MINUTS OF THE MEETING OF THE GOVERNMENT DT. 10.3.97. P4:- COPY OF THE G.O.(P) NO.68/2000/H.EDN. DT. 18.5.2000. P5:- COPY OF THE G.O.(MS) 146/04/H.EDN. DT. 5.11.04. P6:- COPY OF THE PROCEEDINGS OF THE VICE CHANCELLOR DT. 26.3.03. P7:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. NO.16204/98 DT. 24.8.05. P8:- COPY OF THE REPRESENTATION FILED BY THE PETITIONER DT. 30.5.06. P9:- COPY OF THE G.O.(RT) NO.1391/06/H.EDN. DT. 19.9.06. P10:- COPY OF THE CMP. NO.38372/02 IN OP. 18093/02 DT. 8.8.02. P11:- COPY OF THE GO(MS) NO.33/98/H.EDN. DT. 19.4.99. TRUE COPY P.S. TO JUDGE TSS T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.32034 of 2006-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2009. JUDGMENT The petitioner herein is a Lecturer Selection Grade in the Department of Civil Engineering in TKM College of Engineering, Kollam. The grievance raised by the petitioner is mainly in respect of his placement in the senior scale with effect from 18.5.1997. The challenge is against Ext.P9, whereby the Government rejected his claim to relax the conditions to attend the refresher course and to give him the benefit of Lecturer Senior Grade with retrospective effect from 16.9.1994. 2. The relevant particulars relating to the petitioner show that initially he joined the College as Lecturer on 19.10.1987. For want of vacancy he was terminated twice and his continuous service started from 1.6.1989. By Ext.P1 order dated 27.3.1990 the AICTE norms were made applicable by the Government, according to which, those lecturers who have passed M.Tech. in their respective discipline are eligible to be placed as Senior Scale Lecturers on completion of six years of service as Lecturers, provided they had, in the meanwhile, participated in two refresher courses of four weeks duration or four refresher courses of two weeks duration. wpc 32034/2006 2 3. The petitioner completed six years of service on 16.9.1994. The requirement regarding the refresher course was satisfied by him in June 1995 and during 1997 and accordingly he was granted the senior scale with effect from 18.5.1997. 4. According to the petitioner, the delay of two years and eight months occurred, since there were no adequate facilities for attending the refresher courses. There were total lack of opportunity for the petitioner and others to participate the required number of short term courses within the stipulated time. Practically, the Government accepted the said position by issuing Ext.P2 order dated 22.6.1993, whereby it was decided to issue placement orders to all lecturers who have completed the requisite period of service. In regard to certain lecturers who could not get an opportunity to attend the refresher courses, it was directed that the norms stipulated by the AICTE shall be fulfilled by them within a period of two years from the date of such placement. The said Govt. Order applies to lecturers who were entitled for placement between 1.1.1986 to 27.3.1990. It is pointed out that one Smt. Jalaja, working in the same college was given placement with effect from 5.7.1992 without completing the requisite number of refresher course and the order is produced as Ext.P2(a). Ext.P4 is the scheme implemented for revision of scale of pay as per AICTE norms. Under the wpc 32034/2006 3 said scheme, the teachers were allowed grace period up to 31.3.2001 to undergo the refresher courses. Accordingly, all the teachers who did not undergo the course upto that period were benefited. Since the petitioner had already attended the refresher courses, he did not come within the purview of the same. Ext.P5 has been produced to show that the Government has been granting relaxation subsequently also, wherein the period is extended up to 31.12.2004. Ext.P6 is the proceedings of the Vice Chancellor, Kerala University in the case of one Shri S.Ayoob of the very same college who was granted relaxation even though he did not complete the refresher course within the six years period. He was also appointed in the year 1989. The petitioner approached this court earlier by filing O.P.No.16204/1998 wherein, a direction was issued to the Government to consider his claim. The said judgment is produced as Ext.P7. The petitioner thereafter submitted Ext.P8 representation before the Government. The same was rejected the Government by Ext.P9 order dated 19.9.2006. It is pointed out that no relevant aspects have been considered while rendering Ext.P9. 5. Learned counsel for the petitioner Shri P.B. Suresh Kumar mainly contended that from time to time, relaxation was being granted by the Government in favour of a set of lecturers who were seniors to the petitioner as well as juniors and all of them could get placement by getting wpc 32034/2006 4 the benefit of such orders. Ext.P2 applies to persons who were eligible for placement between 1.1.1986 to 27.3.1990. Since the petitioner had not completed six years service as on that date, he was not benefited by that order. It is pointed out that this relaxation was granted by the Government clearly due to the fact that the Government was fully aware that there were no sufficient facility for undergoing the refresher course. When the revision of scales of pay was introduced as per Ext.P4, going by para 3.11 and Note, a grace period upto 31.3.2001 has been granted for the existing staff for completing the required number of short term courses. By Ext.P5, the period is further extended. Therefore, it is contended by the learned counsel for the petitioner that if the petitioner had not undergone the courses prior to 1997, he would have been benefited by the said provision, as in the case of all others. 6. Ext.P6 is the order passed by in favour of one Shri S. Ayoob, Lecturer Senior Scale of the same college. The Vice Chancellor allowed relaxation after accepting his grievance that the benefit of relaxation was granted in favour of various teachers who are juniors to him. Learned counsel for the petitioner heavily relied upon the said proceedings. 7. In the counter affidavit filed by the first respondent, it is mainly pointed out that the instances pointed out by the petitioner are clearly wpc 32034/2006 5 distinguishable. The first respondent also contends that the petitioner had sufficient opportunity to attend the courses but he attended the first summer course only on 17.5.1993, the second course on 23.6.1995, the third course in April 1997 and the fourth in May, 1997. As regards the case of Smt. Jalaja, it is pointed out that she completed the requisite year of service before 31.3.1993 and therefore she is a beneficiary of Ext.P2 order. As regards Ext.P6 in the case of Shri Ayoob, it is pointed out that the revised placement order issued by the University has not been admitted under Direct Payment till date for want of clarification of the Government as to whether the placement sanctioned by the Director of Technical Education based on the decision of the screening committee constituted by the Government for the purpose can be revised by the University. It is therefore contended that the same cannot be taken as a precedent. 8. The crucial issue to be examined is the contention of the learned counsel for the petitioner that there were no sufficient facilities to undergo the refresher courses. The averments placed by the petitioner as regards the same in para 4 of the writ petition and in ground B have not been denied by the first respondent in the counter affidavit. The circumstances under which Ext.P2 was issued, shows that relaxation was granted to certain categories of lecturers obviously because the facilities were lacking and the wpc 32034/2006 6 Government granted further time to them to complete the refresher courses. By Ext.P4 also, time was granted upto 31.3.2001 and further time was later granted as per Ext.P5. This also justifies the argument that relaxation was being granted clearly after the Government felt that facilities were not adequate. Otherwise, the stringent conditions would not have been relaxed. 9. This is a case where the seniors to the petitioner were benefited by relaxation granted by Ext.P2 and juniors have been benefited by the specific clause contained in Exts.P4 and P5. As far as the case of Shri S.Ayoob is concerned, he was also granted the benefit by the Vice Chancellor by Ext.P6. Of course, the matter is referred to Government, as explained in the counter affidavit. Therefore, it may not be proper to deny the benefit to the petitioner which was granted to similarly placed persons. 10. None of the above aspects have been considered while passing Ext.P9 order. It is well settled that persons who are similarly placed, cannot be discriminated. In Ext.P9, the view taken is that no relaxation to the qualification can be granted. The said conclusion has been arrived at overlooking the fact that by Exts.P2, P4 and P5 relaxation has been granted in favour of two sets of lecturers. Why it cannot be granted in the case of the petitioner, has not been explained either in Ext.P9 or in the counter wpc 32034/2006 7 affidavit. As already noticed, in the counter affidavit it is merely stated in para 5 that the petitioner had sufficient opportunity to attend the course. Plainly that cannot be accepted in its face value in the light of the fact that by Exts.P2 and P4, the Government had been relaxing the period obviously because of the fact that the Government wanted to give further opportunity to all the teachers to attend the refresher courses by availing the limited facility. No other explanation is offered in the counter affidavit regarding this aspect. Since there are large number of lecturers, it may not be possible for everybody to attend the course within a short period also. In para 7 of the counter affidavit, it is averred that placement in the senior scale can be allowed to him with effect from 1.1.1996 under the revised scheme, with the relaxation for attending the short term courses. 11. Therefore, Ext.P9 is quashed. The matter will be reconsidered by the Government in the light of the findings rendered above. Appropriate orders shall be passed within a period of two months from the date of production of a copy of this judgment after hearing the petitioner. The Government will also consider the case of the petitioner in the light of the wpc 32034/2006 8 benefits granted to similarly placed persons. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/