IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 WP(C).No. 20680 of 2009(D) --------------------------------- PETITIONER(S): ------------------- P.V.ANILKUMAR, LECTURER, SCHOOL OF TECHNOLOGY & APPLIED SCIENCE, MAHATMA GANDHI UNIVERSITY, KOTTAYAM. BY ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE RESPONDENT(S): -------------------- 1. MAHATMA GANDHI UNIVERSITY, KOTTAYAM, REP.BY ITS REGISTRAR. 2. VICE CHANCELLOR, MG.UNIVERSITY, KOTTAYAM. 3. SYNDICATE OF MAHATMA GANDHI UNIVERSITY, REP.BY THE VICE CHANCELLOR, THE CHAIRMAN OF THE SYNDICATE, MG.UNIVERSITY, KOTTAYAM. R1 TO R3 BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/11/2010, THE COURT ON 02/12/2010 DELIVERED THE FOLLOWING: svs/ WP(C).No. 20680/2009 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF NOTIFICATION DATED 20/12/1993 P2: COPY OF ORDER NO.SF1/STAS/4932/95-96 DATED 23/11/2004 P3: COPY OF ORDER DATED 23/09/2006 P4: COPY OF STAFF DETAILS P5: COPY OF JUDGMENT IN W.P.C.NO.15871/2006 DATED 20/06/2006 P6: COPY OF ORDER DATED 20/10/2006 P7: COPY OF ORDER DATED 05/09/2002 P8: COPY OF CERTIFICATE ISSUED BY THE DIRECTOR DATED 28/08/2007 P9: COPY OF REPRESENTATION DATED 24/09/2007 SENT TO THE 1ST RESPONDENT P10: COPY OF THE JUDGMENT IN WPC.NO.14227/2009 DATED 19/06/2009 P11: COPY OIF MINUTES WITH THE ORDER DATED 19/06/2009 (RELEVANT PORTION) P12: COPY OF ORDER DATED 03/08/2009 ISSUED BY UNIVERSITY P13: COPY OF ORDER DATED 14/07/2009 ISSUED BY UNIVERSITY P14: COPY OF ORDER DATED 04/08/2009 ISSUED BY UNIVERSITY P15: COPY OF APPLICATION DATED 06/07/2009 BY PETITIONER AND THE REPLY OF UNIVERSITY RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs/ T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 20680 of 2009-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of December, 2010. JUDGMENT In this writ petition, the petitioner challenges the proceedings by way of Exts.P12 and P13 whereby the University communicated their decision to withdraw the grant of scale of pay to him and further refused his prayer for declaration of probation. The petitioner contends that the same is discriminatory and illegal especially in the light of the fact that four similarly placed lecturers who were appointed along with him have been conferred all such benefits. 2. The petitioner is now functioning as the Head of the Department of Polymer Engineering. The short facts for the disposal of the case are as follows:- 3. Ext.P1 is the notification of the year 1993 pursuant to which the petitioner was granted appointment as Lecturer in Polymer Science. Initially, it was for a fixed term on contract basis. According to him, three others similarly placed ,were granted scale of pay as per Ext.P2 and their probation was also declared with effect from 2/1/2003. They were given senior scale at Rs.10000-325-15200 as per Ext.P3 order. Later, by Ext.P3 wpc 20680/09 2 (a) order, the University, based on the decision of the Syndicate, resolved to approve the proposal to grant other service benefits which are applicable to Lecturers who have been granted revised UGC/AICT Scale of pay to the petitioner and one Joji J. Anchanat. His initial service started on 04/03/1995. The petitioner approached this Court by filing W.P.(C) No.15871/2006 for a direction to grant him UGC/AICTE scale applicable to other Lecturers who were similarly put in more than 10 years of service. This was disposed of by Ext.P5 Judgment directing the University to take a decision and finally by Ext.P6 order, the petitioner was granted the scale of pay of Rs.8000-275-13500/- with effect from 1/1/2002 as long as the course/institution in which he is working stands financially viable. 4. According to him, he is entitled for senior scale after counting the service from 4/3/1995. He is relying upon Ext.P7, an order passed in favour of Shri K.Sreekrishnakumar, Lecturer in Physics whose previous service was counted for placing him in the Senior scale Lecturer. The scale granted is 10000-325-15200 with effect from 25/04/1998. Ext.P8 is the recommendation given by the Director in respect of the petitioner for declaring his probation and thereafter, he filed Ext.P9 representation and approached this Court by filing W.P.(C) No.14227/2009 which was disposed of as per Ext.P10 judgment. But the Syndicate rejected the wpc 20680/09 3 request of the petitioner by Ext.P11 order, without stating any reason. Later, the Syndicate met and reviewed Ext.P6 order granting scale of pay as per Ext.P12. Actually Ext.P12 decision is taken by the Vice Chancellor as authorised by the Syndicate. The reason stated for withdrawing the scale of pay is that he is a contract lecturer and by Ext.P13, his request for declaring probation also stands rejected. 5. Heard Shri N. Dharmadan, learned Senior Counsel for the petitioner and Shri T.A. Shaji, learned Standing Counsel for the University. 6. Later, by Ext.P14 order, he was directed to execute an agreement of contract with the University. It is pointed out that by Ext.P15 reply given by the University under the Right to Information Act will show that out of the 20 contract lecturers from the time of inception, five persons including the petitioner are working and four persons were granted UGC/AICTE scale of pay. In respect of Dr. Joji J. Anchanattu, Dr. S. Krishnakumar and Dr. N.V. Eldhos, their probation was declared and in their case the previous service of 7 years and above was reckoned for placing them in the Lecturer senior scale. This was done in the case of Dr. K. Sreekrishnakumar also, whose previous contract service, etc. were counted for placing him in the senior scale. Ext.P19 is the judgment of this Court in W.P.(C) No.1499/2009 in respect of Smt. Bijamma Thomas who is wpc 20680/09 4 a lecturer in Mathematics in the School of Applied Sciences and Mathematics. This Court, after considering various aspects including the grant of scale of pay in respect of the petitioner herein, directed the University to consider her request. The said judgment was challenged in Writ Appeal No.1709/2009 by the University and by Ext.P23 judgment the appeal was dismissed. The Special Leave Petition filed against Ext.P23 judgment before the Apex Court was also dismissed as per Exts.P24(a) and P24(b) and thereafter the University has granted benefit of scale of pay to her as per Ext.P25. These proceedings are also relied upon by the petitioner in support of his pleas. 7. The University has filed a counter affidavit and later an additional counter affidavit. 8. Mainly it is contended therein that the initial appointment of the petitioner was on contract basis. The department is not a University department coming under the University First Statutes. Even though the selection and appointment was after initiating a process of selection, there is no permanent cadre of a teaching or non teaching post in the self financing institutions. Therefore, his probation is not liable to be declared. It is admitted that Dr. Joji J. Anchanattu, Dr. N.V. Eldhose and Dr. S. Krishnakumar have been working as Lecturers on contract basis and their wpc 20680/09 5 probation was declared already. It is also admitted that the petitioner joined the contract service on 4.3.1995 along with four others and they have undergone the selection process for the contract appointment in the self financing institution. 9. Learned Senior Counsel for the petitioner submitted that there are no distinguishing factors as far as the petitioner's service and the service of similarly situated persons whose names have been pointed out above and who joined service along with the petitioner after selection under the very same notification. They have been granted the benefits with effect from 1.1.2002. It is pointed out that the grant of senior scales to them will have to be considered for granting benefits to the petitioner and their probation also has been declared. It is further pointed out that the review of the order granting scale of pay and the refusal to declare probation and the proceedings now issued directing to execute fresh agreement, cannot be supported. It is pointed out that the petitioner has already completed 15 years of service and he is the Director of Polymer Science now. Drawing parallel to the service conditions and benefits provided to the four persons, the learned Senior Counsel submitted that his case cannot be equated with the service conditions of teachers appointed on contract basis under totally different circumstances at a far later point of time. It is pointed out that the wpc 20680/09 6 decision taken by the Syndicate is without any reason and without notice to the petitioner. 10. It is further pointed out that since Ext.P19 judgment has become final and the benefit was granted to the petitioner therein based on the grant of scale of pay to the petitioner, the attempt to review the order is only to deny justice to the petitioner. 11. Shri T.A. Shaji, learned Standing Counsel for the University submitted that no discrimination has been shown to the petitioner. The other contract lecturers who were later appointed, have executed agreements. The University is not prevented from reconsidering the case of the petitioner and the action is not vindictive, as alleged. 12. Some of the relevant aspects show the following: The notification for appointment was on 20.12.1993 which is Ext.P1. Of course, the appointment was on contract basis. The petitioner was appointed along with Dr. Joji J. Anchanattu, Dr. S. Krishnakumar and Dr. N.V. Eldhose, on contract basis. The moot point is whether there are any distinguishing features as far as the case of these three persons as well as that of Dr. K. Sreekrishnakumar, whose initial appointment was against a temporary post as stated in para 20 of the counter affidavit to that of the petitioner. In the case of those persons, the University has counted the wpc 20680/09 7 previous service for placing them in the UGC/AICTE scale. In fact, the order Ext.P2 will show that the Syndicate, based on the recommendation of the Director, School of Technology and Applied Sciences, resolved to recommend the declaration of probation in respect of three teachers, viz. Dr. Joji J. Anchanattu, Dr. S. Krishnakumar and Dr. Eldhose N.V. It will show that their date of appointment on contract basis was in 1994, the date on which UGC/AICTE scale was granted is 1.1.2002 and the date of declaration of probation is 2.1.2003 F.N. The only condition stated therein is that the University is free to withdraw the consequential benefit to the teachers if and when the department is found financially unviable. They were given placement in the senior scale as per Ext.P3 order in the year 2006, with effect from 1.1.2002. Ext.P3(a) is the order in favour of the petitioner and Dr. Joji J. Anchanattu. As per the said order, sanction has been accorded by the Vice Chancellor to the petitioner and Dr. Joji J. Anchanattu who were granted scale of pay, STAS, Pullarikkunnu, being granted the benefits of leave and other service benefits which are applicable to the lecturers who have been granted revised UGC/AICTE scale of pay. Therefore, it is evident that the service conditions which were granted to the other three lecturers, have been made applicable in the case of the petitioner also. The final order in the case of the petitioner is Ext.P6 dated wpc 20680/09 8 20.10.2006 whereby he was granted scale of pay of Rs.8000-275-13500 with effect from 1.1.2002 on condition that the same will be as long as the courses/institution in which he is working stands financially viable. There is no plea that the said condition has changed or it is the basis for the present action. In fact, the University has been acting in favour of similarly placed persons as evident from Ext.P7 issued in favour of Dr. K. Sreekrishnakumar, Lecturer in Physics. Therein, his previous service has been reckoned for placing him in the senior scale. Ext.P8 will show that the petitioner was working as Lecturer in School of Technology and Applied Sciences, Pullarikunnu since March 1995. The Director recommended declaration of probation. It is therefore evident that after the initial period of contract appointment, the service conditions have been freshly adopted giving various benefits including scale of pay. The petitioner was also granted the very same scale of pay as applicable to the teachers who have been granted UGC/AICTE scale of pay. Therefore, what remained, according to the petitioner, was the declaration of probation. These aspects were referred to in Ext.P10 judgment while directing the University to take a decision in the matter. 13. Ext.P11 minutes does not state the reasons for rejection of the request of the petitioner for declaration of probation. Evidently, by wpc 20680/09 9 Ext.P12, the Vice Chancellor reviewed the order granting scale of pay on the plea that the petitioner is a contract lecturer. The grant of scale of pay is reviewed with effect from 25.7.2009. Therefore, evidently the stand of the University is changing at different points of time. 14. One of the crucial documents is Ext.P15(3) reply given by the University under the Right to Information Act. In answer to question No.5, it was replied that initially 20 lecturers were appointed on contract basis and only five persons including the petitioner and four others whose names have been mentioned therein are still working in STAS. It also shows that the petitioner and three others were granted UGC/AICTE scale of pay and probation has been declared in respect of only three persons. In respect of Dr. K. Sreekrishnakumar, Dr. S. Krishnakumar, Dr. N.V. Eldhose and Dr. Joji J. Anchanattu, their previous contract services have been reckoned for placing them in the senior scale. 15. Therefore, the question is whether the petitioner has been discriminated while denying the benefits granted to similarly placed persons above shown. The only reason stated by the University is that he was initially appointed on contract basis. But same is the case of others also. The petitioner has equated his case with that of the three other lecturers, viz. Dr. S. Krishnakumar, Dr. Joji J. Anchanattu and Dr. N.V. wpc 20680/09 10 Eldhose. The counter affidavits filed by the University do not attempt any differentiation in the case of the petitioner and that of the said lecturers. It is clear from paragraphs 13 and 14 of the counter affidavit that the petitioner joined the service along with four others including the three lecturers mentioned above. Dr. Joji J. Anchanattu, Dr. S. Krishnakumar and Dr. N.V. Eldhose were working as contract lecturers, which is admitted in para 13. It is also admitted that all the four lecturers have undergone the selection process for the contract appointment in the self financing institution. In respect of those four lecturers, the University has treated their posts as substantive posts and accordingly their probation was declared. Since the situations are similar and the appointment was made on similar lines and their continuance is also on similar terms, there is no reason to distinguish the case of the petitioner to that of the four others. 16. Actually the petitioner was also treated along with the others, which is evident from Ext.P3(a), whereby a decision was taken by the University to grant service benefits which are applicable to lecturers who have been granted UGC/AICTE scale of pay. The case of the petitioner and Dr.Joji J. Anchanattu are specifically mentioned in Ext.P3(a). By Ext.P6, he was also granted the scale of pay of Rs.8000-275-13500 with effect from 1.1.2002 as in the case of others and the condition put therein is wpc 20680/09 11 similar to the condition stated in Ext.P2. There is no plea that the case of the petitioner stands on a different footing with those four lecturers, which aspect has been highlighted by the petitioner in Ext.P9 representation also. 17. Actually, before the Syndicate took the decision and the Vice Chancellor reviewed the case of the petitioner, there was another development. The petitioner in W.P.(C) No.1499/2009, viz. Smt. Bijamma Thomas sought for grant of similar benefits citing the case of the petitioner. She is having a total service of 14 years with the University. She was also selected by statutory selection committee initially on contract basis, which was being extended from time to time. She was also working in the School of Technology and Applied Sciences later. This Court in Ext.P19 judgment after considering the stand of the respondents also, held as follows in para 7: “It is clear from Ext.P5 that the University resolved to grant UGC/AICTE scale to Dr. Joji J. Anchanattu, Dr.S. Krishnakumar and Dr. N.V. Eldhose as they have eight years of service, out of which 4 ½ continuous service is in the School of Technology and Applied Sciences. Thus, the total service of those lecturers have been counted for the purpose of granting the benefit. Herein, the University contends for the position that as far as the petitioner is concerned, her case is not having any parallel with that of the other teachers. This appears to be incorrect. When, in respect of other wpc 20680/09 12 teachers the total service is being counted, there cannot be any distinction as far as the petitioner is concerned.” The grant of benefits to Dr. Joji J. Anchanattu, Dr.S. Krishnakumar and Dr. N.V. Eldhose, by way of senior scale and scale of pay to the petitioner, has also been mentioned in the said judgment. Thereafter, this Court held that “when all the above teachers have been appointed on contract basis, the contention raised by the respondents that since the appointment of the petitioner is on contract basis, there cannot be any grant of scale in her favour, is not justified.” Accordingly, a direction was issued to the Vice Chancellor to to consider the case and grant due benefits to the petitioner therein. 18. The above judgment was taken in appeal before the Division Bench by the University, in W.A. No.1709/2010 and Ext.P23 is the judgment. The Division Bench, while considering the argument that the appointments are on contract basis, held thus: “According to the appellants, when appointment was made on contract basis, she cannot be regularised and given a scale of pay and her appointment is governed by the specific terms and conditions contained in the contract. If the University has taken such uniform stand in respect of all the employees who were appointed on such contract basis, the stand taken by the University cannot be faulted. But they cannot pick and choose among the wpc 20680/09 13 contract employees and extend the benefit to some and deny the same to others. This was found by the learned Single Judge as discriminatory. Though a distinction was made by the appellants in regard to appointment of the respondents herein that the appointment is on contract basis, we find as far as those persons referred to in paragraph 7 of the judgment are concerned, they were also appointed on the same contract basis and their conditions of service are also governed by the terms and conditions provided in the contract. The respondent has been continuously working from 1995 based on orders issued by the University from time to time without any break. It is fallacy to say that still she is a contract appointee and she cannot be given the benefit given to similar others.” Accordingly, the writ appeal was dismissed and Ext.P24(b) will show that the Special Leave to Appeal © No.CC11732/2010 filed against the judgment in W.A.No.1709/2010, has also been dismissed. Thereafter, the University passed Ext.P25 order granting benefits to her, in implementation of the judgment of this Court. Therein, sanction has been accorded to grant scale of pay of Rs.8000-275-13500 to her. It is mentioned that the above shall be subject to the decision of this Court in this writ petition and the orders to be passed on review of the decision granting of scale of pay to three contract lecturers mentioned therein. Still it is clear that the University has granted the scale of pay as was granted to the petitioner and wpc 20680/09 14 others. The judgment in her favour has become final. 19. The principle adopted by the Division Bench in Ext.P23 judgment will clearly apply to the petitioner herein. There are no distinguishing features as far as the petitioner is concerned, with that of the lecturers whose names have been already mentioned above and Smt. Bijamma Thomas, now in the light of Ext.P25. Therefore, the plea that the initial appointment was on contract basis and therefore no benefit by way of scale of pay, etc. can be granted, cannot be sustained at all. The appointment was extended and he has been continuously working since 1995. 20. Learned Senior Counsel for the petitioner relied upon the decisions of the Apex Court in The State of Haryana and others v. Rajendra Sareen (AIR 1972 SC 1004), Samsher Singh v. State of Punjab (AIR 1974 SC 2192), U.P. State Electricity Board v. Pooran Chandta Pandey (2007 (4) KLT 513(SC)) and that of a Division Bench of this Court in Arshad Beegum v. Najeeb (2009 (4) KLT 389) as well as the decision of the Apex Court in State of Karnataka & others v. M.L. Kesari & others (AIR 2010 SC 2587). In the light of the factual position as emerging here and in the light of the decision of the Division Bench in Ext.P23, it may not be necessary to elaborately discuss the judgments of wpc 20680/09 15 the Apex Court. 21. The decision of the Apex Court in Kesari's case (AIR 2010 SC 2587) relied upon the decision in State of Karnataka v. Umadevi (AIR 2006 SC 1806), wherein as a one time measure the case of employees who have completed 10 years were directed to be regularised. The Apex Court, in Kesari's case (AIR 2010 SC 2587) held in para 8 that “the true effect of the direction is that all persons who have worked for more than ten years as on 10.4.2006 (the date of decision in Umadevi) without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi as a one-time measure.” Learned Senior Counsel for the petitioner placed reliance on the above decision of the Apex Court. It is pointed out that a parallel can be drawn herein in the light of the admitted facts. Learned Standing Counsel for the University relied upon the decision of the Apex Court in Official Liquidator v. Dayanand and others {(2008) 10 SCC 1} to point out that the decision in U.P. wpc 20680/09 16 Electricity Board's case (2007 (4) KLT 513 (SC)) has been overruled. 22. As already noticed, the principles stated by the Division Bench in Ext.P23 squarely applies to the facts of this case. In the light of the view taken by me that the principles stated in Ext.P23 will apply, the petitioner will also be entitled for the same benefit. The University has no uniform stand in respect of the four others and that of the petitioner and therefore, as held by the Division Bench in Ext.P23 judgment, the University cannot pick and choose among the contract employees and extend the benefit to some and deny the same to others. The crucial finding that “it is a fallacy to say that still she is a contract appointee, and she cannot be given the benefit given to others”, squarely applies herein also. There is no distinction also between the appointment of the three lecturers and that of the petitioner. 23. Therefore, the petitioner is entitled to succeed in the writ petition. Accordingly, the writ petition is allowed. Exts.P11, P12, P13 and P14 are quashed. The scale of pay