IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 WA.No. 1021 of 2010 ----------------------- AGAINST THE JUDGEMENT IN WPC.2233/2004 DATED 8.4.2009 .................... APPELLANTS/RESPONDENTS 1 TO 3 IN WPC. ------------------------------------------------- 1. STATE OF KERALA REP.BY THE HEALTH SECRETARY, MINISTRY OF HEALTH,.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE, THIRUVANANTHAPURAM. 3. THE ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNTANT GENERAL, STATUE JUNCTION, THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER SRI.MANOJ KUMAR.N. RESPONDENT/PETITIONER IN WPC. --------------------------------------- M.G.PRESANNA, SENIOR LECTURER IN MEDICO SOCIOLOGY, DEPARTMENT OF COMMUNITY MEDICINE, MEDICAL ACOLLEGE, KOTTAYAM. BY ADV. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & Antony Dominic, J. ------------------------------------------ W.A. No. 1021 of 2010 ------------------------------------------ Dated this the 21st day of February, 2011 JUDGMENT J.Chelameswar, C.J. This writ appeal is preferred aggrieved by the judgment dated 8th April, 2009 in W.P.(C) No.2233 of 2004 by the unsuccessful State and its official respondents. 2. The facts leading to the writ appeal are as follows: By order dated 16.6.2000 the State of Kerala revised the scale of pay and allowances of the teaching staff of Medical, Dental and Pharmaceutical Science Colleges in the State with effect from 1.1.1996 as shown in the Annexure to the said order. The relevant portion of the said order reads as follows: “Government are now pleased to order the revision of scales of pay and allowances of the teaching staff of the Medical, Dental and Pharmaceutical Science Colleges in the State with effect from 1-1-1996 as shown in the Annexure to this order.” 3. There was some doubt regarding the applicability of the said order dated 16.6.2000 in G.O.(P) No.145/2000/H&FWD to the teaching staff working in the above mentioned Science Colleges, but not teaching the subjects of either Medicine, Dental Science or Pharmacy. W.A.No.1021 of 2010 - 2 - Therefore, the Government addressed a communication to the Accountant General to keep in abeyance the benefits of the above mentioned Government Order insofar as the teaching staff to whom the applicability of the said Government Order was doubted. Consequentially the respondent's pay scale was reduced under Ext.P3. Challenging the same the respondent approached this Court by way of the above mentioned writ petition with the various prayers as follows: “(a) to call for the records leading up to Ext.P3 and issue a writ of certiorari or any other appropriate writ order or direction and quash Ext.P3. (b) to declare that the petitioner is entitled to get all the benefits including the benefits of Senior Lecturer under Ext.P1 and to direct the respondents to confer the same on the petitioner. (c) to issue a writ of prohibition or any other appropriate writ order or direction prohibiting the respondents from reducing the salary of the petitioner presently being drawn by her. (d) to award the costs of the petitioner and (e) to grant such other further reliefs as this hon'ble court may deem fit and appropriate in the circumstances of the case. (f) to declare that non-furnishing of the order No.G3/4477/2001/DME dated 8.3.2011 by the 2nd and the 3rd respondents to the petitioner in spite of Exhibit P5 and Exhibit P6 and refusal to give reasons in the matter of reducing the salary of the petitioner is violative of the principles of natural justice and hence W.A.No.1021 of 2010 - 3 - null and void and (g) to declare that providing differential salary to the teaching staff of the Medical Colleges on the basis of teaching subjects is arbitrary and violative of Article 14 of the constitution of India and hence illegal. (h) to declare and order that the petitioner is entitled to get the benefit of time-bound cadre promotion under Ext.P1 with effect from 1.1.1996 as Asst. Professor from 6.8.1997 and Associate Professor with effect from 6.8.2002 in Medico Sociology and quash Ext.P9.” 4. Eventually the writ petition came to be allowed by the judgment dated 8th April, 2009 holding that the respondent was also entitled to the benefit of Ext.P1. The operative portion of the judgment reads as follows: “8. I have perused Ext.P1 Government Order and took the view that Ext.P1 is applicable to all teaching staff irrespective of medical or non-medical Lecturers. Ext.P1 does not restrict its application to the Lecturers in clinical branch. Ext.P1 confers benefits to Lecturers in Dental, Medical and Pharmaceutical Science Colleges in Kerala. If Ext.P1 confers benefit to Lecturers irrespective of clinical branch or non-clinical branch, the petitioner is entitled to the benefits conferred by it. Therefore, the petitioner is eligible for time bound cadre promotion and all other benefits conferred vide Ext.P1 order. Taking into consideration Ext.P1 Government Order, Ext.P9 order is ex facie illegal and unsustainable in law. Therefore, the impugned orders, Ext.P3 and P9 are quashed. It is hereby declared that the petitioner is entitled to get all the benefits of Senior Lecturers in Ext.P1. It is W.A.No.1021 of 2010 - 4 - also declared that the petitioner is entitled to get the benefit of time bound cadre promotion under Ext.P1 with effect from 1/1/1996 as Assistant Professor and 6/8/1999 as Associate Professor in Medico Sociology. There will be a direction that consequent orders shall be passed by the Government within a period of two months from the date of receipt of a copy of this judgment” 5. It appears that the dates mentioned in the above extracted paragraph were inaccurate and by a subsequent order dated 21.5.2009 in I.A.No.5604 of 2009 this Court corrected the judgment as follows: “The dates “1.1.1996” and “6.81999” occurring in the penultimate sentence in paragraph 8 of the judgment dated 08.04.2009 in W.P.(C) No.2233/2004 are corrected as “6.8.1997” and “6.8.2002” respectively as per order dated 21.05.2009 in I.A.No.5604/2009.” 6. After the disposal of the writ petition the State of Kerala doubted the eligibility of the writ petitioner to the time bound cadre promotion in view of the fact that the respondent availed leave in different spells. The details of the said leave are as follows: “The eligible leave taken by me during 5 years from 6.8.1992 to 6.8.1997 is as under: 6.8.1992 to 2.10.1994 -- 58 days 3.10.1994 to 31.12.1994 -- 13 days 1.1.1995 to 6.8.1997 -- 56 days -------------- 127 days Eligible leave availed of during the period 1997-6.8.2002 6.8.1997 to 31.12.1999 -- 82 days 1.1.2000 to 6.8.2002 -- 132 days ---------------- 214 days” W.A.No.1021 of 2010 - 5 - 7. Therefore the State sought a review of the judgment by filing R.P.No.170 of 2010. That review petition was dismissed by order dated 9th April, 2010. Hence this appeal. 8. Sri.N.Manoj Kumar, the learned Special Government Pleader, made a categoric statement at the Bar that this writ appeal is confined only to the question of the entitlement of the respondent for the time bound cadre promotion, both in the cadres of Assistant Professor and Associate Professor. 9. The learned Government Pleader argued that in view of the language of paragraph IV of the Annexure to Ext.P1, it is the five completed years of actual teaching experience which renders a person eligible for promotion under the above mentioned Government Order and in computing the said period of five years the leave availed by the persons claiming the benefit of the above mentioned Government Order is required to be excluded. Paragraph IV of the Annexure to the said Government Order reads as follows: “IV. Career Advancement.- (a) Senior Lecturers who have PG Degree in the speciality concerned and also have 5 years of (Physical) teaching experience will be promoted as Assistant Professors in the scale of pay of Rs.12000-18300. (b) Assistant professors with 5 years of teaching experience (Physical) and those who have put in 10 years of total service as Senior Lecturer and Assistant Professor put together will be promoted as Associate Professor in the scale of pay of W.A.No.1021 of 2010 - 6 - Rs.14300-19250.” 10. Apart from the various questions and submissions considered and rejected by the learned Judge by the judgment under appeal, on a specific query raised by us, learned Government Pleader informed us that the service of the respondent is not regulated by any Special Rules made either under Article 309 of the Constitution of India or governed by any statutory provisions except that the Rules known as the Kerala Service Rules are applicable to the respondent. Rule 92 of the Kerala Service Rules declares the entitlement of an employee of the State who is on earned leave. Rule 92 reads as follows: “92. An officer on earned leave is entitled to leave salary equal to.- (i) full (duty) pay i.e., pay admissible had he been on duty during the period of leave; (ii) Dearness allowance applicable to the above duty pay; and (iii) Such other compensatory allowances as are admissible under the rules during the period of leave: Provided that where an officer is promoted during the period he is on earned leave the monetary benefit of promotion shall be given only from the date on which he assumes charge of the post, if there is change of duties. 11. Rule 77 of the Kerala Education Rules defines the various expressions, such as 'ordinary leave', 'special leave', 'earned leave', etc. W.A.No.1021 of 2010 - 7 - Under Rule 77 of the said Rules 'earned leave' is defined as follows: “'Earned leave' means leave earned in respect of periods spent on duty. The said Rule also defines the 'completed year's of service' and 'one year's continuous service' as follows: “'Completed year's of service' and 'one year's continuous service' mean continuous service of the specified duration under the Government of Kerala and include periods spent on duty as well as on leave including leave without allowances.” 12. From the above extracted definitions, it can be seen that the periods spent on duty as well as on leave including leave without allowances are to be included in the period for the purpose of deciding the length of service in either case. The learned Government Pleader however argued that the State was conversant with the fact that such a Rule exists and therefore specifically provided in paragraph IV of the Annexure to Ext.P1 that 5 years of 'physical' teaching experience is the criteria for rendering eligible any candidate for the benefits conferred under the said Government Order. For the purpose of the present order, we do not propose to examine the correctness of the interpretation placed by the appellants on the expression '5 years physical teaching experience' and we accept the interpretation to be legally correct. Even then the question remains whether an instrument such W.A.No.1021 of 2010 - 8 - as Ext.P1 which is an order issued by the Government in exercise of its executive powers can override a Rule made by the State in exercise of the authority under Article 309 of the Constitution of India as admittedly the Kerala Service Rules are made pursuant to the authority vested in the State under Article 309 of the Constitution. It is well settled that the Rules made under Article 309 of the Constitution have the force of a statute. The executive powers of the State are declared by the Constitution to be coextensive with that of the legislative power of the State. Once a legislation is made by the State the executive would be precluded from exercising the authority over such area which is already governed by the provisions made by the Legislature. Therefore, we are of the opinion that paragraph IV of the Annexure to Ext.P1 cannot override Rule 77 of the Kerala Service Rules. Hence, we do not see any merit in the writ appeal. The writ appeal is therefore dismissed at the admission stage. J.Chelameswar, Chief Justice Antony Dominic, Judge vns