IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 WP(C).No. 15499 of 2007(T) -------------------------------------- PETITIONERS: --------------------- 1. DR.SUSY CHARLES, TUTOR, DEPARTMENT OF MATERIA MEDICA, DR.PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA, ERNAKULAM. 2. DR.ARYA KUMARI THANKACHI, TUTOR, DEPARTMENT OF ORGANON OF MEDICINE, DR.PADIAR, MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA, ERNAKULAM. 3. DR.MATHEW JOHN, TUTOR, DEPARTMENT OF MATERIA MEDICA, DR.PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA ERNAKULAM. BY ADV.MRI.ELVIN PETER P.J. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL AND CONTROLLING OFFICER, GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM. 3. DR.PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA, ERNAKULAM DISTRICT, REPRESENTED BY ITS PRESIDENT. R1 BY GOVERNMENT PLEADER SMT. SUDHA DEVI, R3 BY ADV. MR.R.LAKSHMI NARAYAN, SMT.R.RANJINI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.15499/2007-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE M.D. HOMOEO DEGREE CERTIFICATE OF THE P.1. EXT.P.2: COPY OF THE APPOINTMENT ORDER DT. 27/12/98 OF THE P.1. EXT.P.3: COPY OF THE M.D. HOMEO DEGREE CERTIFICATE OF THE P.2. EXT.P.4: COPY OF THE APPOINTMENT ORDER DT.27/12/98 OF THE P.2. EXT.P.5: COPY OF THE M.D. HOMOEO DEGREE CERTIFICATE OF THE P.3. EXT.P.6: COPY OF THE APPOINTMENT ORDER DT. 27/09/98 OF THE P.3. EXT.P.7: COPY OF THE ORDER, G.O. DTD. 25/04/2002 ISSUED BY THE GOVT. EXT.P.8: COPY OF THE ORDER, G.O. DTD. 11/03/1998 ISSUED BY THE GOVT. EXT.P.9: COPY OF THE ORDER, G.O. DTD. 20/03/2001 ISSUED BY THE GOVT. EXT.P.10: COPY OF THE ORDER, G.O. DTD. 21/03/2002 ISSUED BY THE GOVT. EXT.P.11: COPY OF THE ORDER DTD. 21/03/2007 ISSUED BY THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 15499 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 1st June , 2009. J U D G M E N T The petitioners are tutors in the 3rd respondent Homeopathic Medical College. The college was brought under the direct payment system by G.O (MS) No. 100/2000/H&FWD dated 25-4-2000 with effect from 1-1-2000. By Ext. P7 order dated 25-4-2002, the staff pattern of the college was fixed. Later on, with effect from 1-4-2002, the AICTE scales of pay were introduced in the college by Ext. P10. Prior to that, the Government had issued Ext. P9, revising the scales of pay of the teachers of the Homeopathic Medical Colleges in Kerala. In the same, a scheme for career advancement for teachers were introduced, as per which the tutors who have passed graduate degree in a specialty and have put in 5 years of physical teaching experience would be given promotion as lecturer in the scale of pay of Rs. 12000-18300. The petitioners claim the said career advancement promotion on their completing 5 years of teaching experience. That has been rejected by Ext. P11 on the ground that the AICTE scales of pay were introduced in the 3rd respondent's college only with effect from 1-4-2002 and therefore the teaching experience put in subsequent to that date only would be counted for the purpose of computing 5 years of physical teaching experience as provided in Ext. P9. The petitioners are challenging Ext. P11, seeking the following relief: “(i) Issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Ext. P11 and quashing the same. (ii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to grant the scale of pay of lecturer to the petitioners implementing the career advancement scheme granted under para 3(a) of Ext. P9 with effect from 1-1-2005, 1-1-2005 and 8/2005 and disburse all consequential W.P.C. No. 15499/07 -: 2 :- benefits. (iii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to grant fixation of pay in the scale of pay of Rs.12000-18300 to the petitioners and disburse the arrears of salary to them with effect from 1-1-2005, 1- 1-2005 and 8/2005 respectively.” 2. The contention of the petitioners is that as evident from Ext. P8 Government Order dated 11-3-1998, the scales of pay of teaching staff of Government Ayurveda/Homoeo Colleges and Private Ayurveda/Homoeo Colleges coming under the direct payment scheme has been fixed with effect from 1-1-1997 in accordance with AICTE scales. Therefore, once the 3rd respondent-college was brought under the direct payment system with effect from 1-1-2000, naturally, at least for deciding career advancement guaranteed by Ext. P9, the experience put in by the petitioners with effect from that date should have been counted. 4. A counter affidavit has been filed by the 1st respondent controverting the claims of the petitioners. According to 1st respondent, in so far as AICTE scales of pay was introduced in the 3rd respondent-college only with effect from 1-4-2002, the experience put in by teachers of the 3rd respondent college in the scale of pay other than AICTE scales of pay cannot be reckoned for the purpose of career advancement scheme as per Ext. P9. 5. I have considered the rival contentions in detail. 6. Before going into the merits of the contentions, I must note one curious thing. Although the learned Government Pleader would contend that the experience other than in the AICTE scales of pay cannot be counted for the purpose of career advancement scheme, the W.P.C. No. 15499/07 -: 3 :- learned Government Pleader admits that prior to 1-4-2002, the teachers of the 3rd respondent-college were drawing salary in the State scales of pay, which was higher than the AICTE scales of pay at that time. It was by subsequent revision, the AICTE scales of pay became higher. 7. The claim of the petitioners have to be considered on the basis of the career advancement scheme formulated by Ext. P9 Government Order. Clause 3 which provides for the career advancement scheme reads thus: “(a) Those who have Post graduate degree in a specialty and also have 5 years of (physical) teaching experience will be promoted as Lecturer in the scale of pay of Rs.12000-18300. (b) Lecturer with Post graduation and 5 years of (physical) teaching experience and those who have 10 years of service as Tutor and Lecturer put together will be promoted as Reader in the Scale of Pay of Rs. 14300-19250.” Clause 3(a) is relevant for our purpose. It does not specify that for the purpose of becoming eligible for career advancement promotion as lecturer, the tutors should have put in 5 years of teaching experience in any specified scale of pay. All what it stipulates is that the tutors should have post graduate degree in a specialty and also 5 years of physical teaching experience for promotion as lecturers. After having issued Ext. P9 Government Order, without amending the same appropriately, the Government cannot, while considering the claim of the petitioners, add another condition that such experience should have been in the AICTE scales of pay. It is all the more so when, as stated by the learned Government Pleader the petitioners W.P.C. No. 15499/07 -: 4 :- were, at the relevant time, drawing salary in the State scale of pay, which was higher than the AICTE scale of pay. When the salary was in a superior scale of pay, it defies logic as to why it cannot be counted as experience for promotion. That being so, Ext. P11 order, which stipulates a new condition which is absent in Ext. P9 for the purpose of career advance promotion to the petitioners is clearly unsustainable. The same is therefore quashed. It is declared that whether in the AICTE scale of pay or in the State scale of pay, if the petitioners have put in 5 years of physical teaching experience after 1-1-2000, that physical teaching experience is liable to be counted for the purpose of career advancement promotion as lecturer as per clause 3 (a) of Ext. P9. 8. The petitioners have a further contention that the condition in Ext. P11 that such teaching experience is excluding of the leave periods, namely, earned leave, half pay leave, leave without allowance etc., is against the provisions of the KSR and therefore unsustainable. The contention is that for the purpose of service, all leave put in by a Government servant would be counted as service. I am of opinion that we are not considering the claim under KSR at all. The claim of the petitioners is under Ext. P9. Therefore, the petitioners would be entitled to only the benefits as provided under Ext. P9 and not under KSR. Clause 3(a) of Ext. P9 specifically refers to physical teaching experience. When physical teaching experience is specifically mentioned, naturally, that would exclude leave periods. Therefore, I do not think that the petitioner can claim experience taking into account earned leave, half pay leave, leave without allowance etc., also for computing the teaching experience put in by them from W.P.C. No. 15499/07 -: 5 :- 1-1-2000 for the purpose of career advancement as per clause 3(a) of Ext. P9. The 1st respondent is directed to consider the claim of the petitioners for career advancement promotion in accordance with the above findings and pass orders thereon, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The arrears of salary becoming due to the petitioners, if any, on account of orders thus passed, shall also be disbursed within that time. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/