IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 28277 of 2007(N) --------------------------------------- PETITIONER(S): ------------------------- 1. SURESH K.P.,SELECTION GR.ASSISTANT, FINANCE BRANCH, KANNUR UNIVERSITY (AGED 36, S/O. T.V.PADMANABHAN,'SREENILAYAM' P.O., AROLI, KANNUR , PIN 670 566) 2. RANJITH P.V.,SELECTION GR.ASSISTANT, PLANNING AND DEVELOPMENT SECTION, KANNUR UNIVERSITY 3. ANIL CHANDRAN,SELECTION GR.ASSISTANT, ACADEMIC SECTION, KANNUR UNIVERSITY 4. SMITHA BHASKARAN,,SELECTION GR.ASSISTANT ACADEMIC SECTION, KANNUR UNIVERSITY 5. SIRAJ K.M.,SELECTION GR.ASSISTANT B.TECH SECTION, EXAM BRANCH,KANNUR UNIVERSITY 6. PRIYA V.O. SELECTION GR.ASSISTANT FINANCE BRANCH,KANNUR UNIVERSITY 7. RAJALAKSHMI P.M.SENIOR GR.ASSISTANT EXAM BRANCH,KANNUR UNIVERSITY 8. PREMAN K.P.,SELECTION GR.ASSISTANT FINANCE BRANCH,KANNUR UNIVERSITY BY ADVS.MR.K.S.MADHUSOODANAN MR.K.B.SUJAI KUMAR MR.T.V.JAYAKUMAR NAMBOODIRI MR.THUSHAR NIRMAL SARATHY MR.M.M.VINOD KUMAR SMT.K.M.RAMYA W.P.(C) NO.28277/2007 RESPONDENT(S): ----------------------------- 1. KANNUR UNIVERSITY MAGATTUPARAMBA, KANNUR UNIVERSITY CAMPUS P.O., REP. BY REGISTRAR. 2. PRABHATH KUMAR K.,SELECTION GR.ASSISTANT DEPARTMENT OF STUDENT SERVICES/ NATIONAL SERVICES SCHEME,ADMINISTRATION, KANNUR UNIVERSITY. 3. ASHRAF K.SELECTION GR.ASSISTANT UNIVERSITY TEACHER EDUCATION CENTER, MANANTHAVADI. 4. ASWATHI T.P.SELECTION GR.ASSISTANT FINANCE BRANCH,KANNUR UNIVERSITY. 5. RAJAN BABU T.V.,SELECTION GR.ASSISTANT ACADEMIC BRANCH,KANNUR UNIVERSITY. 6. DEEPA N, SENIOR GR.ASSISTANT ACADEMIC BRANCH,KANNUR UNIVERSITY. 7. RAHUL B.ASHOK, SENIOR GR.ASSISTANT REVALUATION SECTION,EXAM BRANCH, KANNUR UNIVERSITY. 8. DHANYA RAK K,SELECTION GR.ASSISTANT FINANCE BRANCH,KANNUR UNIVERSITY. R1 BY ADV. MR.M.SASEENDRAN,SC,KANNUR UNIVERSITY R2,R5,R6,7 BY ADV.MR.GEORGE POONTHOTTAM R3. R4 & R8 BY MR.N.SUGATHAN, SMT.VARSHA BHASKAR, MR.S.PRASANTH (AYYAPPANKAVU). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.28277/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPRESENTATION TO THE IST RESPONDENT BY THE 8TH PETITIONER DTD. 12.3.05. P2:- COPY OF THE REPRESENTATION TO THE IST RESPONDENT BY THE 8TH PETITIONER ON 2.4.05. P3:- COPY OF THE ORDER BEARING NO.AD.A1/459/2004 DTD. 29.4.05 OF THE IST RESPONDENT. P4:- COPY OF THE ORDER BEARING NO.AD.A1/459/2004 DTD. 18.5.05. P5:- COPY OF THE ORDER OF THE IST RESPONDENT BEARING NO.AD.A1/459/2004( VOL. II) DTD. 10.6.0.5. P6:- COPY OF THE ORDER OF THE IST RESPONDENT BEARING NO.AD.A1 (ASST.GR.1/2002) DTD. 11.8.05 . P7:- COPY OF THE ORDER OF THE IST RESPONDENT BERING NO.AD.A1/ASST.GR.1/2002 DTD. 12.12.05. P8:- COPY OF THE LETTER OF THE DEPUTY DIRECTOR BEARING NO.LF.C5/315/2006 DTD. 23.3.06. P9:- COPY OF THE LETTER OF THE 8TH PETITIONER WITH COPY TO IST RESPONDENT ON 18.7.06. P10:- COPY OF THE ORDER OF THE IST RESPONDENT BEARING NO.AD.A1/SR.GR.ASST/01 DTD. 21.10.05. P11:- COPY OF THE ORDER OF THE IST RESPONDENT BEARING NO.AD.A1/SR.GR.ASST/2001 DTD. 18.3.06. P12:- COPY OF THE ORDER OF THE IST RESPONDENT BEARING NO.AD.A1/SEL.GR.ASST/2000 DTD. 3.2.06. P13:- COPY OF THE ORDER OF THE IST RESPONDENT BEARING NO. AD.A1/PROMOTION (ASST) 2006(3) DTD. 15.2.07. P14:- COPY OF THE SERVICE PARTICULARS OF THE PETITIONERS GIVEN IN A CHART. P14(a):- COPY OF THE SERVICE PARTICULARS OF RESPONDENTS 2 TO 8 GIVEN IN A CHART. P15:- COPY OF THE JUDGMENT IN WA.722/01 DTD. 13.11.02 OF THE HONOURABLE HIGH COURT OF KERALA. P16:- COPY OF THE RELEVANT EXTRACT OF KANNUR UNIVERSITY ORDINANCE, 1999. W.P.(C) NO.28277/2007 RESPONDENT'S EXHIBITS R1(a):- COPY OF THE ROTATION CHART. R1(b):- COPY OF THE SERVICE DETAILS, INCLUDING DETAILS OF QUALIFYING THE TEST MANDATORY FOR PROMOTION AND DATE OF PROMOTION TO THE CADRE OF ASST. GRADE I (AS PER REVISED ORDER) IN RESPECT OF THE PETITIONER AND RESPONDENTS 2 TO 8. R3(a):- COPY OF THE REPLY DTD. 17.10.2006 OF PRO FOR CALICUT UNIVERSITY TO 8TH RESPONDENT. R3(b):- COPY OF THE REPLY DTD. 3.11.07 OF THE PRO WITH ITS ENCLOSURE TO 8TH RESPONDENT. P3(c):- COPY OF THE REPLY DTD. 26.2.08 OF THE GOVERNMENT TO THE 8TH RESPONDENT. R3(d):- COPY OF THE APPOINTMENT ORDER DTD. 6.3.04 ISSUED TO THE 8TH RESPONDENT. R3(e):- COPY OF THE ORDER NO.AD.A1 459/2004 DTD. 27.3.04 OF IST RESPONDENT. R3(f):- COPY OF THE CALICUT UNIVERSITY IST ORDINANCES 1978. R3(g):- COPY OF THE CIRCULAR DTD. 8.11.06 WITH RANKED LIST OF ASSISTANTS GRADE II. R3(h):- COPY OF THE ORDER NO.AD.A1` PROMOTIONS (ASST)/2006(1) DTD. 15.2.07 OF THE IST RESPONDENT. R3(i):- COPY OF THE ORDER NO.AD.A1 PROMOTIONS (ST)/2006(2) DTD. 15.2.07 OF THE IST RESPONDENT. R3(j):- COPY OF THE ORDER NO.AD.A1 PROMOTIONS (ASST)/2006(3) DTD. 15.2.07 OF THE UNIVERSITY. R3(k):- COPY OF THE LETTER NO.GSS-3892/1999 DTD. 7.6.02 FROM THE SECRETARY TO GOVERNOR TO THE REGISTRAR, KANNUR UNIVERSITY. R3(l):- COPY OF THE ORDER DTD. 15.6.05 PASSED BY THE REGISTRAR, KANNUR UNIVERSITY. R3(m):- COPY OF THE MINUTS OF THE SYNDICATE MEETING OF KANNUR UNIVERSITY HELD ON 14.12.05. R3(n):- COPY OF THE LETTER DT. 10.10.07 OF PUBLIC INFORMATION OFFICER FORWARDING COPIES OF FILE NO.P1D/A2/759/98.II. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.28277 OF 2007 (N) -------------------------------------------------- Dated this the 16th day of October, 2009 J U D G M E N T The point on which the parties urged their contentions centres around the prayer made by the petitioners for quashing Ext.R3(h) order conferring promotion to respondents 2 to 8 with effect from 17.3.2005 as Assistant Grade-I. If this prayer is granted, rest of the prayers sought for are consequential in nature. The relevant facts are that on 6.3.2004, the petitioners and respondents 1 to 8 were appointed under the first respondent, the Kannur University as Assistants Grade-II. All of them completed one year probation by 6.3.2005 and were thereafter promoted as Assistant Grade-I, by Ext.R3(h) order, with effect from 17.3.2005. As at present, all except the 2nd respondent are working as Assistant-Selection Grade and the 2nd respondent is working as a Section Officer. According to the petitioners, qualification for the post of Assistant Grade-I is laid down in Ext.P16, the Kannur University Ordinance, 1999, which prescribed that the post shall be filled WPC .No.28277/07 :2 : up by promotion from the cadre of Assistant Grade-II, having completed the period of probation and passed Account Test Lower/Higher and Secretariat Manual and based on seniority. Referring to Ext.R3(k)(l)and (m) petitioners contend that in terms of Section 39(2) of the Kannur University Act, the date directed by the Syndicate as the effective date of the Ordinance is 7.6.2002. It is stated that the party respondents passed the Account Test on 18.10.2004 and Secretariat Manual on 5.4.2005 in the examination held in January, 2005. The case of the petitioners is that in view of the provisions contained in the University Ordinance referred to above, which was implemented from 7.6.2002, the party respondents having passed obligatory Secretariat Manual Test, only on 5.4.2005, were eligible for promotion only thereafter and therefore they could not have been promoted, along with them, on 17.3.2005. Alternatively, it is also contended that even if it is assumed that as on the date of promotion, viz. 17.3.2005, the Ordinance was not in force. In view of the provisions contained in Section 99 (2) of the Kannur University Act, Calicut University Ordinance 1978 held the field until the Kannur University Ordinance 1999 WPC .No.28277/07 :3 : was implemented with effect from 7.6.2002. It is contended that the eligibility criteria laid down in the Calicut University First Ordinance, is similar to those contained in the Kannur University Ordinance and hence even under the Calicut University Ordinance, the petitioners could not have been promoted on 17.3.2005. Although, counsel for the petitioners referred to Rule 28(a) and Rule 28(bb) of Part-I KS & SSR to contend on the effective date of passing the test, having regard to the facts of this case I do not think it necessary to deal that contention. Counsel appearing for respondents 3,4 and 5 raised the technical plea that the writ petition was belated and that the contentions raised are contrary to the pleadings on merit. He contended that the Ordinance laid down the eligibility criteria and that at the time when they were promoted, the party respondents were fully eligible. He contended that the party respondents passed the Account Test in 2004 and Secretariat Manual in the examination held in January,2005 of which the result was published on 5.4.2005. WPC .No.28277/07 :4 : He pointed out that the Kannur University Act came into force on 9.11.1995 and that under Section 99(2) of the Act, the Calicut University Ordinance as it stood then, continued to apply until it was replaced by Ext.P16 the Ordinance framed by the Kannur University. He referred Ext.R3(f), the Calicut University Ordinance, and contended that pass in Secretariat Manual was not a qualification prescribed by the Calicut University until the Schedule to the Ordinance was replaced with effect from 14.12.2004. According to him what was relevant was the rule as on 9.11.1995 and that as per the rule then in force pass in Secretariat Manual was not a prescribed qualification. On this basis, it was contended that at the time when they were promoted on 17.3.2005, party respondents satisfied all the qualifications prescribed for promotion. Yet another plea that he canvassed is that, at any rate, in terms of Section 39(2) of the Kannur University Act, the Syndicate had directed that the Ordinance shall be effective from 7.6.2002. According to him, even if the Ordinance was given retrospective e effect as contended, still by virtue of such retrospective effect, the benefits that were already accrued to the petitioners under WPC .No.28277/07 :5 : the existing Rules cannot be taken away. Standing counsel for the University referred to me to Exts.R1 (b), a chart with the particulars of the date on which the party respondents acquired the test qualifications. Counsel appearing for the other party respondents, mainly adopted the submissions made on behalf of the respondents 3,4 and 8 and pointed out that the facts as far as they are concerned are identical to those of respondents 3,4 and 5. I have considered the submissions made. In my view, the issue regarding the eligibility of the party respondents for promotion as Assistant Grade-I lies in a very narrow compass. Going by Ext.R3(m), exercising its powers under Section 39(2) of the Kannur University Act, the Syndicate of the Kannur University directed that the Ordinance shall be effective from 7.6.2002. In view of the provisions contained in Section 99 of the Act, although the Regulations, Statutes and Ordinances framed under the Calicut University Act stood repealed in so far as the areas covered by Kannur University Act is concerned, Section 99(2) provided that the Ordinance, Statute etc., as it stood on 9.11.1995, will continue to be operative, till it is WPC .No.28277/07 :6 : replaced by an Ordinance etc., framed under the Kannur University Act. If that be so, promotion effected on 17.3.2005 was as per the provisions of the Calicut University Ordinance. In such a case, the question to be considered is whether under the Calicut University Ordinance, pass in Secretariat Manual was a prescribed qualification. Counsel for respondents 3,4 and 8 referred me to Ext.R3(f), copy of the Calicut University First Ordinance 1978 framed on 15.7.1978. In terms of the said Ordinance, the post of Assistant Grade-I is to be filled up by promotion of Assistant Grade-II having completed the period of probation and passed Account Test Lower based on seniority. What is to be noticed is that in this Ordinance, there is no prescription that Assistant Grade-II should have passed Secretariat Manual test to be eligible for promotion as Assistant Grade-I. This position continued until the Schedule to the Calicut University Ordinance was replaced on 14.12.2004. As already noticed what was applicable in terms of Kannur University was the Ordinance framed by the Calicut University as it stood on 9.11.1995 when the Kannur University Act was implemented. If that be so, the pass in the Secretariat Manual thus was not an WPC .No.28277/07 :7 : essential qualification for promotion to the post of Assistant Grade-I until the Kannur University framed its Ordinance. Then the further question is the effect of the retrospective implementation of the Kannur University Ordinance and whether promotions already effected will be affected by such retrospective implementation of Ordinance. As already noticed it was in the meeting of the Syndicate held on 14.12.2005, by Ext.R3(m) the Syndicate ratified the suggestion to make Ordinance effective from 7.6.2002. This is the statutory power of the Syndicate under Section 39(2) of the Kannur University Act. Before 14.12.2005, the respondents were already promoted by Ext.R3h) with effect from 17.3.2005. In my view it is up to the University to frame Ordinances and amend the same. This power can be exercised with prospective effect or with retrospective effect. However, such power of amendment is subject to the well recognized principle that the benefits accrued under the existing Rules cannot be taken away by an amendment introduced with retrospective effect. See in this connection the Apex Court judgment reported in T.K. Kapur & Ors. V. State of Haryana & Ors.(AIR 1987 SC 415). WPC .No.28277/07 :8 : If that be the legal position, the promotions already effected cannot be disturbed by the retrospective implementation of Ordinance. If that be so, prayers in this writ petition cannot be granted. At this stage, counsel for the petitioners has referred me to the averments in paragraph 5 that respondents 2,5 and 7 had not passed even the Account Test as on 17.3.2005 when they were promoted. This is a factual issue and there is dearth of materials to arrive at a conclusion. Therefore it is directed that the University shall verify the correctness of this contention and if correct, shall take appropriate action. Writ Petition is disposed of as above. (ANTONY DOMINIC) JUDGE vi/