IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 WP(C).No. 8669 of 2007(F) ------------------------- PETITIONER(S): --------------- V. SASIKUMAR, ASSISTANT LIBRARIAN GRADE-II,KERALA UNIVERSITY LIBRARY, PALAYAM,THIRUVANANTHAPURAM. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.K.K.RAJEEV RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY,HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETRIAT,THIRUVANANTHAPURAM. 2. UNIVERSITY OF KERALA,REPRESENTED BY ITS REGISTRAR, UNIVERSITY P.O., THIRUVANANTHAPURAM. 3. THE REGISTRAR, UNIVERSITY OF KERALA, UNIVERSITY P.O.,THIRUVANANTHAPURAM. 4. THE VICE CHANCELLOR, UNIVERSITY OF KERALA,THIRUVANANTHAPURAM. 5. N.MARIAMMA ANTONY, ASSISTANT LIBRARIAN GRADE-I, KERALA UNIVERSITY LIBRARY, PALAYAM,THIRUVANANTHAPURAM. 6. RAVIKUMAR.S.R, ASSISTANT LIBRARIAN GRADE-I, CAMPUS LIBRARY, UNIVERSITY OF KERALA, KARIYAVATTOM,THIRUVANANTHAPURAM. ADDL.R7 & R8 7. HEMACHANDRAN NAIR, S/O GOPALAKRISHNAN NAIR REFERENCE ASSISTANT, KARIYAVATTOM CAMPUS, UNIVERSITY OF KERALA, TVM (Impleaded as per order dated 11.4.07 in I.A.5444/07) WP(C).No. 8669 of 2007 -2- 8. P.K.SURESH KUMAR, TECHNICAL ASSISTANT, UNIVERSITY LIBRARY, UNIVERSITY OF KERALA, TVM [RESIDING AT T.C.7/660(13), 'SWASTHY', R.V.R.A-J3 KANHIRAMPARA P.O., TVM-695030 (Impleaded as per order dated 3.10.07 in I.A.12963/07) ADV. SRI.M.RAJAGOPALAN NAIR FOR R2-4 SRI.J.S.AJITHKUMAR SRI.MILLU DANDAPANI FOR ADDL.R7 GP V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8669 of 2007 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE ORDER NO.AD.AV.2.4147/01 DATED 31.3.03 PROMOTING THE PETITIONER AS ASSISTANT LIBRARIAN GR.II EXT.P2- TRUE COPY OF THE RELEVANT PAGES OF THE KERALA UNIVERSITY FIRST ORDINANCES, 78 EXT.P3- TRUE COPY OF THE ORDER NO.AD.Av 2.4147/03 DATED 30.6.03 PROMOTING THE 5TH RESPONDENT AS ASSISTANT LIBRARIAN GR.II EXT.P4- TRUE COPY OF THE ORDER NO Ad. Av.2 4147/03 DATED 8.7.03 PROMOTING SMT.PILLAI SUSHAMA AS ASSISTANT LIBRARIAN GR.II EXT.P5- TRUE COPY OF THE ORDER NO.Ad.Av.2. 8626/04 PROMOTING THE 6TH RESPONDENT AS ASSISTANT LIBRARIAN GR.II EXT.P6- TRUE COPY OF THE ORDER NO.Fin.3312/90 DATED 7.12.90 IMPLEMENTING THE UGC SCHEME FOR QUALIFIED LIBRARIAN IN THE UNIVERSITY EXT.P7- TRUE COPY OF THE REVISED SCALE OF PAY ORDER TO THE QUALIFIED LIBRARIANS BY ORDER NO.Fin.IV/9001/UGC/2000 DATED 3.2.00 EXT.P8- TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 45TH MEETING OF THE SYNDICATE HELD ON 23.1.92 EXT.P9- TRUE COPY OF THE RELEVANT PAGES OF THE PROVISIONAL GRADATION LIST (PAGE NOS.1 AND 4) EXT.P10- TRUE COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE 29TH MEETING OF THE SYNDICATE HELD ON 5.4.02 EXT.P11- TRUE COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE HELD ON 12.5.05 EXT.P12- TRUE COPY OF THE ORDER NO.Ad.AV.2.8329.05 DATED 23.7.05 ISSUED BY THE 3RD RESPONDENT EXT.P13- TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 8.2.07 EXT.P14- TRUE COPY OF THE JUDGMENT DATED 13.2.07 IN W.P.(C).4807/07 EXT.P15- TRUE COPY OF THE ORDER NO.Ad.AV.2.8329/07 DATED 5.3.07 ISSUED BY THE 3RD RESPNDENT EXT.P16- TRUE COPY OF THE ORDER NO.Ad.AV.2.7727/07 DATED 6.3.07 ISSUED BY THE 3RD RESPONDENT EXT.P17- TRUE COPY OF THE JUDGMENT DATED 13.9.04 IN O.P.1649/00 EXT.P18- TRUE COPY OF THE ORDER NO.51/2003/AV(1)ADMN. DATED 1.1.07 ISSUED BY THE M.G.UNIVERSITY EXT.P19- TRUE COPY OF THE ORDER NO.F3-1/94(PS)-7 DATED 19.10.06 WP(C).No. 8669 of 2007 -2- EXT.20- TRUE COPY OF THE ORDER NO.Ad.AV.2.33444/00 DATED 2.9.00 EXT.P21- TRUE COPY OF THE ORDER NO.Ad.AV.2.8626/04 DATED 18.3.04 EXT.P22- TRUE COPY OF ORDER NO.Ad.AV.2.8626/06 DATED 31.1.06 (TRUE COPY) P.A TO JUDGE ANTONY DOMINIC, J. -------------------- W.P.(C) NO.8669 OF 2007 (F) -------------------------- Dated this the 4th day of February, 2010 JUDGMENT 1. Petitioner challenges Exts.P15 and P16 and seeks a declaration that his juniors in the cadre of Assistant Librarian Grd.II, who do not possess the qualification prescribed by UGC, shall not be promoted as Assistant Librarian Grd.I or Deputy Librarian, ignoring the seniority in the gradation list as on 31.3.2000. 2. Petitioner possesses M. Com, M.Sc in Library Science and NET. On 31.3.1981, he was appointed as Library Assistant under the respondent University. He was later promoted as Technical Assistant, Reference Assistant and thereafter by Ext.P1 order dated 31.3.2003, as Assistant Librarian Grd.II with effect from 1.4.2003. 3. It is stated that respondents 5 and 6, have also entered service like him and earned promotions. According to the petitioner on 30.6.2002 as per Ext.P3 order, the 5th respondent was promoted as Assistant Librarian Grd.II with effect from W.P.(C).8669/07 2 1.7.2002 and by Ext.P5 order dated 18.3.2004, the 6th respondent was also promoted as Assistant Librarian with immediate effect. On this basis, petitioner contends that respondents 5 and 6 are junior to him, in the cadre of Assistant Librarian Grd.II. 4. It is stated that by Ext.P6 order dated 7.12.1990, UGC scheme was implemented by the University and UGC scale of pay was extended to qualified librarians with effect from 1.1.1986. Pursuant to Ext.P6, the Syndicate in the meeting held on 23.1.1992, passed Ext.P8 resolution, to effect promotions in the manner as provided in Ext.P2, the Kerala University First Ordinance 1978. Subsequently, revised UGC scale of pay was implemented with effect from 1.1.1986 by Ext.P7 order dated 3.2.2008. Again the Syndicate considered the matter and in Ext.P10 minutes of the meeting held on 5.4.2002, the Syndicate resolved to follow Ext.P8 referred to above. 5. Despite all this, petitioner was not extended the benefit of UGC scale and therefore he approached this court by filing WP(c). No.7104/2005. That writ petition was disposed of directing the W.P.(C).8669/07 3 University to consider the claim of the petitioner. Accordingly the claim for UGC scale of pay was considered and the Syndicate in Ext.P11 minutes of the meeting held on 12.5.2005 resolved to extent UGC scale to qualified Librarians in service. Based on Ext.P11, Ext.P12 order was issued on 23.7.2005 extending UGC scale with effect from 1.4.2003, the date on which the petitioner was promoted as Assistant Librarian Grd.II by Ext.P1 order. 6. Petitioner submits that while continuing in that post, on 1.2.2007, a vacancy of Assistant Librarian Grd.I arose. Thereupon, petitioner submitted Ext.P13 representation claiming promotion as Assistant Librarian Grd.I on the basis that he is the senior most among the qualified Assistant Librarian Grd.II. His claim was not considered and thereupon he approached this court by filing WP(c).No.4807/07. That writ petition was disposed of by Ext.P14 judgment directing the University to consider and pass orders on Ext.P13 representation. The University considered the claim and Ext.P15 order dated 5.3.2007 was passed rejecting Ext.P13. Paragraph 8 and 9 of the said order being relevant, reads as under. W.P.(C).8669/07 4 “8. The University considered the said arguments of the petitioner, the 5th respondent and also the opinion of the Legal Adviser and passed the following orders; (a) The petitioner and four others as opted by them have been granted UGC scale of pay of Rs.8000-13500. So they as well as the qualified Library Staff(Assistant Librarian Grd.II) who may be granted UGC scale in future be predesignated as Assistant Librarian only as per UGC letter instead of Assistant Librarian Grd.II and will continue to be in the UGC scale and they will be given placement benefits as envisaged by the UGC in the Career Advancement Scheme for Assistant Librarians vide letter No.F3-1/94 (PS)-7, dated 19.10.2006 of the UGC. They cannot avail of both the UGC scale and the promotion avenues of the State scales at the same time, since they have freely exercised their options for UGC scale. (b) Promotion to the post of Assistant Librarian Grade-I will be made based on cadre seniority in the post of Assistant Librarian Grade-II. However, while allotting charge of sections to Assistant Librarian Grade-I promoted from the post of Assistant Librarian Grade-II and Assistant Librarian(UGC) inter-se cadre seniority will be taken into account. 9. In this circumstances, Sri. V.Sasikumar (petitioner) is not entitled to be promoted to the post of Assistant Librarian Grade-I and his claim is denied.” 7. It is stated that on the next day, viz 6.3.2007, Ext.P14 order was issued and respondents 5 and 6 were promoted as W.P.(C).8669/07 5 Assistant Librarian Grd.I. It is thereupon that this writ petition is filed with the prayers mentioned earlier. 8. The contention raised by the petitioner is that in terms of Ext.P2, the Kerala University First Ordinance, the channel of promotion for those entering as Library Assistant is, to the posts of Technical Assistant, Reference Assistant, Assistant Librarian Grd.II, Assistant Librarian Grd.I, Deputy Librarian and Librarian, whereas, as per the UGC pattern, Assistant Librarian with 5 years are eligible to be promoted as Deputy Librarian who on completion of 6 years of service are eligible to be promoted as Librarian. The case of the petitioner is that in the cadre of Assistant Librarian Gr.II, he is senior to respondents 5 and 6. In support of this plea reliance is placed on Exts.P1,P3 and P5. It is argued that in Exts.P8 and P10, it was resolved to follow Ext.P2, which requires promotions to be effected based on seniority in the feeder category. According to him, therefore his claim for promotion based on his seniority could not have been overlooked at the time when respondents 5 and 6 were promoted to the post of Assistant Librarian Grd.I as per Ext.P16. It is also his case that respondents 5 and 6 were not given UGC scale as they were W.P.(C).8669/07 6 unqualified as per the UGC norms and in spite of it, such unqualified juniors are now rewarded with promotion to the higher post of Assistant Librarian. It is stated that they will be getting further promotion as Deputy Librarian whereas the petitioner will be stagnating in the post of Assistant Librarian Grd.II. It is also the case of the petitioner that, though pursuant to Exts.P8 and P10 resolutions regarding the implementation of Exts.P6 and P7 UGC norms, Ext.P2 University First Ordinance is to be amended suitably, University is deliberately not taking steps in that regard only to safeguard the vested interests of the unqualified Librarians, who are numerically stronger, causing prejudice to qualified persons like the petitioner. 9. University on the other hand contends that though employees like the petitioner and respondents 5 and 6 are librarians, they belong to two different compartments. According to the University, once an Assistant Librarian Grd. II like the petitioner, covered by Ext.P2, the Kerala University First Ordinance, is given UGC scale, from that moment onwards, he carries the designation Assistant Librarian and that his avenues of promotion are confined to the posts available in the UGC W.P.(C).8669/07 7 channel of posts. It is stated that an Assistant Librarian, on completion of prescribed service, can aspire promotion only to the post of Deputy Librarian and not to the post of Assistant Librarian Grd.I. It is stated that to redress the grievance of employees like the petitioners on account of stagnation due to lack of or delay in promotional avenues, higher grades have been introduced and in that manner persons like the petitioner are compensated. Counsel contended that it was complying with UGC norms that the persons mentioned in Exts.P18 and P20 were promoted to higher posts. 10. I have considered the submissions made. 11. From the submissions made by the learned counsel on either side, it is evident that the post of Librarian available in the UGC channel and in the Kerala University First Ordinance, are in two distinct and different compartments without movement from one to the other. As already seen, in the UGC channel an Assistant Librarian can aspire for promotion as Deputy Librarian and thereafter, as Librarian. On the other hand, when it comes to Ext.P2, the Kerala University First Ordinance, the entry cadre W.P.(C).8669/07 8 is Library Assistant and the higher posts are Technical Assistant, Reference Assistant, Assistant Librarian Gr.II, Assistant Librarian Gr.I, Deputy Librarian and Librarian. 12. In this case, the petitioner entered service in the channel provided in the Kerala University First Ordinances, as a Library Assistant. He earned promotions and was working as Assistant Librarian Gr.II, pursuant to Ext.P1 order of promotion issued on 31.3.2003. While continuing as such, following the introduction of UGC scale of pay, pursuant to the directions of this Court in the judgment in W.P.(C).7104/2005, Exts.P11 and P12 were issued, as a result of which those Librarians who were qualified as per the UGC norms, including the petitioner, were given UGC scale of pay with effect from 1.4.2003. According to the University since then, his designation is Library Assistant and not Library Assistant Gr.II. Once UGC scale was awarded, based on Exts.P11 and P12, petitioner ceased to be in the scale and channel provided in Ext.P2 and has migrated to UGC scale. From that moment onwards, unless the authorities permit, he cannot aspire for promotion in the State scale as provided in Ext.P2, but will have to await for this his turn for promotion to W.P.(C).8669/07 9 the posts available in the UGC pattern. Counsel for the petitioner did not show me any rule framed wither by the UGC or the University, permitting movement from one channel to the other, as and when, such a demand is made 13. As far as respondents 5 and 6 are concerned, they were unqualified to be given UGC scales of pay and they continued in the State scale. However, their promotional avenues continued to be governed by Ext.P2. It was therefore that when the vacancy of Librarian Gr.II arose on 1.2.2007, their claim for promotion was considered and were promoted. 14. In my view, promotions of those in the UGC scale of pay and those in the State scale are within two different compartments and there is no provision for movement from one channel to the other. Therefore, the fortunes of the persons in each of the compartments will depend upon the availability of vacancies in the compartment to which they belong. In this case, the petitioner will have to wait for his chance for promotion to posts available within the UGC pattern and in the absence of any post available in that channel, petitioner cannot complain that he W.P.(C).8669/07 10 has been discriminated on account of the promotions given to respondents 5 and 6, who did not belong to UGC pattern. Discrimination can be only within the class and among equals. An employee cannot compare himself with another belonging to another class and complain of discrimination. Therefore, petitioner cannot seek any direction from this Court either invalidating the promotion given to respondents 5 and 6 or for a direction to promote him to posts in the State scale. 15. Although the petitioner cannot aspire for promotion in the State scale, fact remains that although he is having UGC qualifications, those Librarians who are unqualified and had to remain in the State scale for that reason, are earning promotions to the higher posts, while the petitioner is made to stagnate in the lower post of Assistant Librarian. To such a grievance, it is no answer to say that they are mometarily compensated by giving higher scales of pay. Such a heart burning situation has arisen only because the University has not got Ext.P2 amended suitably following the introduction of Exts.P6 and P8, which would have resulted in unification of the cadre. According to the petitioner, University has chosen not to amend W.P.(C).8669/07 11 the statutes for the reason that unqualified Librarians outnumber the qualified Librarians and therefore the influence of the unqualified Librarians outweigh their grievance and hence, that the situation is allowed to continue to the advantage of unqualified Librarians and to the prejudice of qualified Librarians. University, being an instrumentality of the State and as a model employer, cannot allow this situation continue for ever. As already seen, the only manner in which this situation can be remedied is to bring amendment to the University statutes. As such amendment is long over due. The counsel for the University submitted that an attempt was made for introducing suitable amendments and that the same had to be given up for legal complications. Pointing out that contrary to the mandatory statutory requirement of consultation with the State Government, amendment was carried out and that the omission to consult with the Government was deliberate, learned counsel for the petitioner wanted me to infer malafides in such a move of the University. Whether it was deliberate or otherwise, I am not satisfied that any genuine effort has been taken by the University for amending the statutes. W.P.(C).8669/07 12 16. Therefore, it is directed that the University shall take expeditious steps for suitably amending Ext.P2, the Kerala University First Ordinances, in the light of Exts.P6 and P7 and thereafter make promotions in terms of the amended ordinances. This shall be done, as expeditiously as possible, at any rate, within six months of production of a copy of this judgment. The writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs