IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 WP(C).No. 34121 of 2010(M) ----------------------------------------- PETITIONER(S): ---------------------- DEEPTHY MATHEW, LECTURER IN ELECTRONICS & COMMUNICATION, COLLEGE OF ENGINEERING, KIDANGOOR, KOTTAYAM-686 583. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH MENON RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. CO-OPERATIVE ACADEMY OF PROFESSIONAL EDUCAITON CO BANK TOWERS, VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695 033, REPRESENTED BY ITS DIRECTOR. 3. THE PRINCIPAL, COLLEGE OF ENGINEERING, KIDANGOOR P.O., KOTTAYAM-686 583. R1 BY GOVT. PLEADER SRI.T.T.MUHAMOOD R2 & R3 BY ADV. SRI.THOMAS ABRAHAM,SC,CO.OP ACADEMY-PRO THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/03/2011,ALONG WITH WPC NO. 34122 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.34121/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPLICATION DTD. 19.3.2008 SUBMITTED BY THE PETITIONER FOR ISSUANCE OF NOC. P2:- COPY OF THE SPONSORSHIP CERTIFICATE DTD. 24.6.2008 ISSUED BY THE 2ND RESPONDENT. P3:- COPY OF THE EXPERIENCE CERTIFICTE DTD. 24.6.2008. P4:- COPY OF THE MEMO DTD. 18.6.2008 ISSUED BY COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY. P5:- COPY OF THE MEMO DTD. 17.7.08 ISSUED BY COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY. P6:- COPY OF THE INTIMATION ALONG WITH LEAVE APPLICATION DTD. 5.8.08. P7:- COPY OF THE COMMUNICATION DTD. 6.8.08 ISSUED BY THE HEAD OF THE DEPARTMENT OF ELECTRONICS, CUSAT TO 2ND RESPONDENT WITH COPY MARKED TO 3RD RESPONDENT. P8:- COPY OF THE COMMUNICATION DTD. 7.8.08 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. P9:- COPY OF THE COMMUNICATION DTD. 3.11.2008 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. P10:- COPY OF THE COMMUNICATION DTD. 7.11.2008 ADDRESSED BY THE PRINCIPAL TO 2ND RESPONDENT. P11:- COPY OF THE LETTER DTD. 29.5.2009 ADDRESSED BY THE PETITIONER TO THE 2ND RESPONDENT. P12:- COPY OF THE REPRESENTATION DTD. 1.6.09 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P13:- COPY OF THE LETTER DTD. 23.9.09 ADDRESSED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT WITH COPY MARKED TO THE PETITIONER. P14:- COPY OF THE LETTER DTD. 14.10.2009 ADDRESSED TO THE 2ND RESPONDENT ALONG WITH ITS ENCLOSURE.. P15:- COPY OF THE LETTER DTD. 29.5.2010 ADDRESSED BY THE PETITIONER TO THE 2ND RESPONDENT. P16:- COPY OF THE REPLY OF THE 3RD RESPONDENT DTD. 14.6.2010 TO THE LETTER DTD. 29.5.2010. W.P.(C) NO.34121/2010 P17:- COPY OF THE CERTIFICATE DTD. 16.7.2010 ISSUED BY THE CUSAT TO THE PETITIONER. P18:- COPY OF THE REQUEST DTD. 17.7.2010 SUBMITTED BY THE PETITIONER. P19:- COPY OF THE ORDER DTD. 27.7.2010 ISSUED BY THE 2ND RESPONDENT. P20:- COPY OF THE APPLICATION DTD. 25.2.2010 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT THROUGH 3RD RESPONDENT. P21:- COPY OF THE COMMUNICATION DTD. 8.3.2010 ISSUED BY THE 2ND RESPONDENT. P22:- COPY OF THE LETTER DTD. 30.7.2010 FORWARDED BY THE 3RD RESPONDENT ALONG WITH THE PETITIONER'S APPLICATION. P23:- COPY OF THE LETTER DTD. 13.8.2010 OF THE 2ND RESPONDENT REJECTING THE APPLICATION OF THE PETITIONER. P24:- COPY OF THE SERVICE BOOK OF THE PETITIONER (RELEVANT EXTRACT). P25:- COPY OF THE FACULTY NORMS PUBLISHED BY THE AICTE. P26:- COPY OF THE COMMUNICATION DTD. 9.8.07 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT SHOWING THE NUMBER OF PERSONS PERMITTED BY THE 2ND RESPONDENT FOR PRUSUING HIGHER STUDIES. P27:- COPY OF THE PROCEEDINGS DTD. 15.2.2008 ISSUED BY CAPE. P28:- COPY OF THE SENIORITY LIST DTD. 1.6.2004 ISSUED BY THE CAPE. P29:- COPY OF THE QUERY RAISED BY MR.GIGIN GEORGE DTD. 8.9.2010 UNDER THE RIGHT TO INFORMATION ACT. P30:- COPY OF THE REPLY DTD. 12.10.2010 GIVEN BY THE COLLEGE OF ENGINEERING KIDANGOOR IN RESPONSE TO EXT.P29 QUERY UNDER THE RTI ACT. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 34121 & 34122 of 2010-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of March, 2011. JUDGMENT These writ petitions raise a common question and therefore they are disposed of together. The petitioners seek for identical reliefs. They are challenging the 83rd resolution of the executive committee of the second respondent, as mentioned in Ext.P13 and P19 in W.P.(C) No.34121/2010 and Ext.P13, P15 and P20 in W.P.(C) No.34122/2010. 2. The matter lies in a narrow compass. Both the petitioners were appointed as Lecturers under the second respondent. The petitioner in W.P. (C) No.34121/2010 was appointed on 1.7.2003 in the College of Engineering, Vadakara and the petitioner in the other writ petition joined on the same day in the College of Engineering, Thalassery. Both of them are working in the College of Engineering, Kidangoor from 2004. 3. Under the scheme for opting for higher studies after getting No Objection Certificate from the second respondent, both of them filed applications produced as Ext.P1 in the respective writ petitions. They were issued with sponsorship certificate and experience certificate by the second respondent to take admission in M.Tech. course. It is stated that wpc 34121 & 34122/2010 2 they will be relieved if selected. The said certificates have been produced as Exts.P2 and P3 in the writ petitions. They applied for the M.Tech course in the Cochin University of Science and Technology (CUSAT). Both of them were selected also. They have executed undertaking to execute a bond. Exts.P6 and P7 are respectively the intimations in respect of the petitioners, issued from CUSAT. The petitioners joined CUSAT and applied for grant of leave for joining the course. Ext.P8 in both writ petitions is the said application. It will evidence the fact that similar application was submitted by the petitioner in the other writ petition. They joined the course on 6.8.2008. The application for leave without allowance was being followed by them. The Principal of the College also forwarded the applications to the second respondent as evident from Ext.P10 in W.P.(C) No.34121/2010. It appears that the same was pending without any action by the second respondent, which prompted the petitioners to again address the second respondent as per separate communications Exts.P11 and P12. After about one year and two months the petitioners were served with Ext.P13 communication from the second respondent which is addressed to the third respondent Principal. Therein, a resolution of the second respondent was mentioned wherein they have resolved to treat the period of absence as unauthorised leave and that it shall constitute break in service and shall not wpc 34121 & 34122/2010 3 count for any service benefits. The petitioners, by way of Ext.P14 in both the writ petitions, pointed out that they have been issued sponsorship certificate for attending M.Tech programme on the basis of their seniority in the service of the second respondent. They also undertook to execute a bond for serving the second respondent for a period of three years. Both of them attached copy of signed bond indicating their willingness in the matter. 4. After completing the project work relating to the M.Tech course they sent communications as per Exts.P15 and P16 respectively in both the writ petitions, seeking permission to rejoin the service at the earliest. They were informed that only if they abide by the conditions of the resolutions passed in the 83rd meeting of the executive committee, the same will be allowed. Accordingly, it is pointed out that they were forced to agree with the conditions. After completing the course and after getting the required certificates showing the same produced as Exts.P17 and P18 respectively, they submitted application to permit them to rejoin service. At that point of time, they were issued with Exts.P19 and P20 replies respectively stating that the period during which they went on leave for higher studies, was treated as unauthorised absence and break in service. They also executed a bond for Rs.2 lakhs agreeing to serve the second respondent for a period of wpc 34121 & 34122/2010 4 two years. It is their case that they had executed the said bond in view of the peculiar circumstances. They are now placed in the bottom of the pay scale. In the meanwhile, they had applied for NOC for registration for part time Ph.D. course. The said applications have also been rejected stating tht all the past service has been forfeited. It is in these circumstances, they have challenged various proceedings including the proceedings during the study leave and to treat the period during which they attended the M.Tech course, as unauthorised absence and break in service. 5. The respondents have filed separate statements supporting their action. 6. Heard Shri E.K. Nandakumar, learned counsel for the petitioners and Shri Thomas Abraham, learned Standing Counsel appearing for respondents 2 and 3. 7. Learned counsel for the petitioners submitted that the petitioners were properly selected by the CUSAT for joining the M.Tech course. They were sponsored by the second respondent and those certificates were also produced. Thereafter, they were selected for the course and they submitted proper applications for leave. They had to join the course at the appointed time and during the time they continued the studies, they have been prosecuting the applications for leave. It is therefore contended that it wpc 34121 & 34122/2010 5 cannot be said that they have been unauthorisedly absent from duty. It is therefore submitted that the very premise under which the actions have been taken, cannot be supported. 8. The stand taken by the second respondent in this regard is that the second respondent has framed a policy as far as allowing persons to pursue higher studies. The same has been produced as Ext.R2(a) which is resolution No.33.8 dated 21.4.2003. According to it, the total number of persons who can be granted leave for higher education shall not exceed 10% of the faculty strength in position in the concerned department taking together all colleges. The norms were further revised as 10% per year to encourage teachers to acquire P.G. qualification as prescribed by the AICTE., as per Ext.R2(b) resolution dated 30.7.2009. It is stated that the second respondent prepared a list based on their seniority and selections are made strictly based on the seniority of the applicants. Ext.R2(c) is the seniority list prepared for the year 2008-2009. It is pointed out that the petitioner's rank are 6 and 8 respectively. Therefore, they were not entitled for permission for availing leave. Ext.R2(d) is the communication addressed to the third respondent regarding the selection of candidates. A total number of five candidates alone were eligible for sponsorship and consequential leave. In Electronics and Communication Engineering only wpc 34121 & 34122/2010 6 the first two candidates (Smt. Sheeja Vincent and Smt. Seema A.K.) were selected strictly based on the seniority. It is further pointed out that initially, sponsorship certificate was issued for submitting the application. It is in that context it is contended that really it was unauthorised absence. 9. The petitioners, in the reply affidavits, have pointed out that the said stand cannot be accepted. It is pointed out that the second respondent has always been granting leave to so many persons without restricting it to one per academic year. Exts.P26 and P27 have been produced in support of the above plea. Ext.P28 is also relied upon in that context. Therefore, it is pointed out that the contention that only one person per department can be sanctioned leave, was never followed by the second respondent, as more people were actually sent. It is also pointed out that the plea is only raised to support the illegal action against the petitioners. It is also pointed out that Ext.R2(c) seniority list was not duly published. Reliance is placed on the reply given under the Right to Information Act, produced as Ext.P30, in this context. The petitioners further point out that a perusal of Ext.R2(d) will show that the first named person, Smt. Sheeja Vincent did not qualify for admission in CUSAT and the second named person did not sign the bond as required and hence she also became ineligible. Both the petitioners alone were therefore eligible for sanction of leave. It is further pointed out wpc 34121 & 34122/2010 7 that by flouting the seniority list Shri Sivathanu L., serial No.9 was allowed to pursue M.Tech at NTTR, Chandigarh. It is the case of the petitioners that serial No.8 did not secure admission in CUSAT. Apart from that, it is pointed out that for before preparing the seniority list, the candidates should produce the proof of having secured admission to the M.Tech course. Therefore, it is pointed out that the seniority list produced, has no sanctity. It is thus contended that Ext.R2(d) seniority list has no value. 10. Evidently, this is a case where both the petitioners alone were able to secure admission in CUSAT from the seniority list prepared by the second respondent. They were successful in the test. The petitioners have demonstrated that Ext.R2(d) list could not be attached any sanctity, as all the persons mentioned above did not get admission. 11. In these circumstances, the question arises whether the petitioners could be treated as being on unauthorised absence. The petitioners were allowed to submit applications to join M.Tech. and they were sponsored also. Of course, the seniority could have been taken as a relevant criteria, if all the persons sponsored had secured admission. But when all the persons sponsored failed to get admission, it cannot be said that the petitioners were not eligible because they did not find a place in the top of the seniority list, Ext.R2(d). What is material to consider is whether the wpc 34121 & 34122/2010 8 petitioners were able to get admission for M.Tech. The seniority list had to be prepared after considering persons who had secured admission in the test. In that view of the matter, it cannot be disputed that the petitioners became eligible for admission and were actually admitted by the CUSAT. 12. Therefore, the stand of the second respondent that final seniority list alone was the criteria for issuing NOC cannot be supported. This position, therefore, leads to another conclusion that the petitioners were entitled for issuance of NOC. The learned Standing Counsel submitted that sponsorship is only for applying the course. The fact that they had submitted the applications for grant of leave after getting admission, is beyond dispute. The applications were never considered and were keeping pending. Finally, they were informed after nearly two years, about the refusal to consider the applications and to treat the period as unauthorised absence. When a person has submitted an application for leave after getting admission for higher studies, merely because the application was not sanctioned, it cannot be said that the person was on unauthorised absence. The petitioners were corresponding the matter with the second respondent throughout and the Principal has also forwarded the applications recommending the same. 13. The other question is whether the action taken to treat the entire wpc 34121 & 34122/2010 9 period of M.Tech. course as unauthorised absence and break in service and to treat the petitioners as new appointees by granting only the bottom of the scale of pay, is correct or not. The petitioners were appointed after a selection process in the respective organisations. When a person enters the service, he/she will be entitled for all the benefits of service including length of service and seniority and consequential service benefits. The service of a person can be curtailed only by a known method such as initiation of disciplinary action or such other eventuality. Herein, none of those circumstances exist. Therefore, as to how their service can be eschewed from consideration since they joined M.Tech course, is a moot question. They were never subjected to any disciplinary action. No resolution except the resolution passed in the 83rd meeting of the executive committee was there. It was a unilateral decision taken by the second respondent without taking action against the petitioners. There is no plea that they have been subjected to any punishment also. 14. Therefore, the question treating the whole period as break in service for the alleged unauthorised absence, cannot be accepted at all. The conditions for rejoining had to be agreed by them, since new conditions were imposed on them. Learned Standing Counsel for the respondents submitted that both the petitioners had agreed for such conditions and wpc 34121 & 34122/2010 10 therefore they cannot turn back and challenge the same. It is explained by the learned counsel for the petitioners that the petitioners were in a state of unequal bargaining power and therefore when the conditions were imposed on them, they had to agree for the same for the purpose of rejoining. 15. If the actions preceding the execution of the present bonds cannot be supported in law, I am of the view that merely because they had been compelled to execute the bond, it cannot result in any disadvantages to them. Both the resolution and the requirement to execute a bond are dependent upon each other. The resolution of the 83rd meeting which is reflected in the impugned orders, cannot therefore be supported. 16. At any rate, the petitioners' service in the organsiation cannot be eschewed and they cannot be treated as new entrants also. Therefore, the proceedings issued treating the period of break in service as unauthorised absence also cannot be accepted. Learned counsel for the petitioners submitted that they are willing to execute the bond for serving the second respondent for a period of three years as demanded. 17. In that view of the matter, the petitioners are entitled to succeed in the writ petitions. Therefore, the impugned proceedings are quashed. There will be a direction to the second respondent to pass appropriate orders with regard to the applications for grant of leave in the light of the findings wpc 34121 & 34122/2010 11 rendered above. The petitioners will execute necessary bonds to serve the second respondent for a period of three years, as agreed to by them. The writ petitions are allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/