IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 20546 of 2007(U) -------------------------------------- PETITIONER(S): --------------------- 1. KERALA STATE AIDED COLLEGE LIBRARIANS ASSOCIATION, REPRESENTED BY ITS SECRETARY, BABU SUNIL.S., LIBRARIAN GRADE-IV, SREE NARAYANA TRAINING COLLEGE, P.O.NEDUMGANDA, VARKALA, TRIVANDRUM. 2. CHRISTY.A., LIBRARIAN GRADE-IV, FATIMA MATHA NATIONAL COLLEGE, KOLLAM. BY ADV. SMT.S.KARTHIKA MR.M.S.UNNIKRISHNAN SMT.K.P.GEETHA MANI MR.M.R.ANISON MR.T.R.RAJESH RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP.BY ITS SECRETARY TO GOVT., HIGHER EDUCATION (D) DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM. R1 & R2 BY GOVERNMENT PLEADER MR.V. TEK CHAND THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 20546/2007-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE SPECIAL RULES DATED 26/08/2003. EXT.P2: COPY OF THE REPRESNTATION FILED BY THE 1ST PETITIONER. EXT.P3: COPY OF THE REJECTION LETTER DATED 13/09/2006 ISSUED BY THE 1ST RESPONDENT. EXT.P4: COPY OF THE LETTER DATED 17/02/2006 ISSUED BY THE 2ND RESPONDENT EXT.P5: COPY OF THE REJECTION LETTER DATED 10/11/2006. EXT.P6: COPY OF THE ORDER DATED 09/07/2003. EXT.P7: COPY OF THE G.O.(RT)NO.1163/2005/H.EDN. DATED 06/07/2005. EXT.P8: COPY OF THE G.O.(MS).66/EDN. DATED 09/02/1970. EXT.P9: COPY OF THE LETTER DATED 14/10/1982. EXT.P10: COPY OF THE PROCEEDINGS DATED 03/01/2006. EXT.P11: COPY OF THE PROMOTION ORDER DATED 30/11/1998. EXT.P12: COPY OF THE COMMUNICATION DATED 18/01/2008. EXT.P13: COPY OF THE COMMUNICATION DATED 22/01/2008. EXT.P14: COPY OF THE COMMUNICATION DATED 14/02/2008. EXT.P15: COPY OF THE COMMUNICATION DATED 19/02/2008. EXT.P16: COPY OF THE COMMUNICATION DATED 11/03/2008. EXT.P17: COPY OF THE LETTER DATED 10/12/2007. EXT.P18: COPY OF THE LETTER DATED 16/11/2007. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. S.SIRI JAGAN, J. ======================== W.P.(C). No.20546 OF 2007-U ======================== Dated 10th June 2009 Judgment The first petitioner is an Association of Aided College Librarians and the second petitioner is a Grade IV Librarian in the Fatima Matha National College, Kollam. Their grievance in this Writ Petition is that although, as per the Kerala University Act and Statutes applicable to them, their scale of pay, allowances and service conditions are the same as those applicable to corresponding categories in Government Colleges, in the matter of granting time bound higher grade promotions, they are discriminated in so far as the Grade IV Librarians in Government Colleges are eligible for time bound higher grade promotion in the scale of pay applicable to Grade III Librarians, whereas the Grade IV Librarians in aided colleges are given only a lesser scale of pay, on time bound higher grade promotion. 2. The contention of the petitioners is that in Government colleges, there are Grade IV Librarians, Grade III Librarians, WPC 20546/07 2 Grade II Librarians and Grade I Librarians. Whenever a Grade IV Librarian in a Government College completes the number of years stipulated in the Pay Revision Order, he would be eligible for time bound higher grade promotion in the scale of pay applicable to the next higher promotion post, namely, Librarian Grade III and so on. But, in the case of aided college Librarians Grade IV, although their scale of pay, allowances and service conditions are the same as Grade IV Librarians of Government Colleges, on completion of the required number of years as a Grade IV Librarian, they are not given the time bound higher grade promotion in the scale of pay of Grade III Librarians, but only in the intermediate scale of pay as per Tables A and B of Annexure-3 Pay Revision Order. This, according to them, is a discrimination. They, therefore, seek the following reliefs : “a) to issue a writ of certiorari or other appropriate writ, order or direction to quash Exts.P3 to P5 orders, since those orders are issued in violation of the petitioners' fundamental right under Articles 14 and 16 of the Constitution. b) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to sanction and disburse the very grade promotion benefit given to Librarian Grade-IV working in Government colleges as well WPC 20546/07 3 as Aided Colleges in the State, to the petitioners based on the provisions in the respective University Statute, providing for parity in the scale of pay of non-teaching staff working in Govt. and Aided Colleges w.e.f.26.8.2003 and c) to pass such other and further orders as are deemed just and necessary in the facts and circumstances of the case.” 3. A counter affidavit is stated to have been filed on behalf of the 1st respondent, the original of which is not available in the file. The learned Government Pleader has made available a copy of the same. According to the learned Government Pleader, as per the Pay Revision Order, Grade IV Librarians in aided colleges would be eligible for time bound higher grade promotion in the scale of pay applicable to Grade III Librarians, only if in that college or any colleges under the same educational agency, there is a post of Grade III Librarian to which a Grade IV Librarian is eligible for promotion. In aided colleges, the libraries would be graded depending on the number of books in that library. Therefore, if the library is a Grade IV library, there would be only one Librarian Grade IV in that college. So also, if the library is Grade III, there would be WPC 20546/07 4 one post of Librarian Grade III and so on. But, if there are more than one college and there is one Grade III library in another college, then the Grade IV Librarian would be eligible for time bound higher grade promotion in the scale of pay applicable to Grade III Librarians. If there are no Grade III Librarian's post available in the colleges under the same educational agency, the Grade IV Librarian would be eligible for the intermediate scale of pay as per Tables A and B of Annexure-3 of the Pay Revision Order, is the contention raised by the learned Government Pleader. 4. I have considered the rival contentions in detail. I am not satisfied that the Grade IV Librarians of the aided colleges are treated differently from Grade IV Librarians of Government Colleges. As provided in the Statutes, Grade IV Librarians in aided colleges do get the same scale of pay, allowances and service conditions as applicable to Grade IV Librarians of Government Colleges. The difference in the matter of time bound higher grade promotion arises because there are a number of Government colleges in the State, where there are WPC 20546/07 5 Grade IV, Grade III, Grade II and Grade I libraries having posts of Grade IV, Grade III, Grade II and Grade I Librarians, to which the Librarians are eligible for promotion. Therefore, a Grade IV Librarian in a Government college can aspire for promotion as Grade III Librarian in one of the Grade III libraries in Government colleges. But, as far as the aided college is concerned, the unit is the college or colleges under the same educational agency. Depending upon the grade of the library of that college or colleges under the same educational agency, there would be only posts of Librarian in the grade applicable to the libraries of that college. Therefore, if there are no posts in the college or colleges under the same educational agency for promotion, then, such Librarians cannot aspire for promotion. In other words, if the library is only a Grade IV library, there would be only one post of Librarian, namely, Grade IV Librarian. If the library is Grade III, there would be only one Grade III Librarian and so on. Therefore, those Librarians do not have a post to which they can aspire for promotion. The time bound grade promotions are governed by Annexure-3 of GO(P) WPC 20546/07 6 No.145/2006/FIN. dated 25.03.2006 for the purpose of the latest pay revision. The Rules relevant for our purpose is Clause 6 of Annexure-3 scheme for time bound higher grade promotion. Clause 6 reads thus : “If there is a regular promotion post in respect of the categories of posts coming under pay scales ranging from Rs.4400-6680 to Rs.9590-16650 and if such scale of pay is higher than the corresponding time bound higher grade proposed in Tables A & B above, then the time bound higher grade for such incumbent will be the scale of pay of such regular promotion post, provided he is otherwise qualified for such promotion. Even in cases where a particular category of posts in the normal hierarchy of promotion posts is not available in a Department, the scale of pay of the normal promotion post only will be allowed as the higher grade. (Thus, for example, in a Department where there is no post of Head Clerk and U.D. Clerks get promoted as Junior Superintendents, the time bound higher grade for the U.D.Clerk will still be the scale of Head Clerk). While assigning such higher grade, only qualified hands i.e., those possessing the qualification, including approval of the D.P.C.(where necessary), prescribed for the promotion post will get the scales of pay of regular promotion posts. Unqualified hands will be allowed the next higher scale of pay above that of the scale of pay of the post held at that time, in the standard scales of pay at Annexure-1. The competent authority sanctioning the time bound higher grade should indicate in the order whether the official possesses qualification for promotion (including approval of D.P.C.) and also specify the scale of pay admissible on time bound higher grade.” Of course, Clause 14 states that non-teaching staff in aided schools, colleges and polytechnics who come under the scheme WPC 20546/07 7 of direct payment of salary by Government are also eligible for time bound grade promotion, but, subject to the other conditions. Therefore, Grade IV Librarians of aided colleges are also eligible for time bound higher grade promotion only in accordance with Annexure-3. Going by Clause 6, a person can aspire for time bound higher grade promotion in the scale of pay applicable to the next promotion post, only if there is a regular promotion post in respect of the categories of posts coming under the pay scales mentioned therein. It is not as if the time bound higher grade promotion would be available, if there is some higher posts in Government service, where also the staff pattern is the same. For becoming eligible for time bound higher grade promotion in the scale of pay applicable to the next promotion post, higher promotion posts should be available for promotion to the person seeking higher grade promotion and not otherwise. Therefore, simply because in Government colleges, Grade IV Librarians are eligible for promotion as Grade III Librarians and such Grade IV Librarians would be eligible for time bound higher grade promotion in the scale of pay WPC 20546/07 8 applicable to Grade III Librarians, Grade IV Librarians in aided colleges would not be eligible for the same benefit unless the aided college, in which the Grade IV Librarian is working has a post of Grade III Librarian, to which the Grade IV Librarian can aspire for promotion. Of course, the learned counsel for the petitioners would invite my attention to the second sentence in Clause 6 and would contend that because of that sentence, even though there is no post in the hierarchy of promotion, the Grade IV Librarians would be eligible for time bound higher grade promotion in the scale of pay applicable to Grade III Librarians. I am unable to understand that sentence in that fashion. That sentence has to be read in conjunction with the example given in brackets. Reading the same together, that only means that if because of the absence of the intermediate post of Head Clerk, a UDC becomes eligible for promotion as Junior Superintendent, that UDC would be eligible for time bound higher grade promotion only in the scale of pay applicable to Head Clerk. That does not mean that if there is no promotion post available, then also the time bound higher grade promotion WPC 20546/07 9 would be available in the scale of pay of the next higher post. In fact, if such an interpretation is adopted, then, Tables A and B would become meaningless. Those tables are introduced for granting a higher scale of pay by time bound higher grade promotion to those who do not have a promotion post to aspire for. In this case, the petitioners were not able to satisfy me that in the respective colleges, there are posts of Grade III Librarians, to which Grade IV Librarians are eligible for promotion. That being so, a Grade IV Librarian would be eligible for time bound higher grade promotion, only in the scale of pay given in Tables A and B of Annexure-3. But, if in a college or colleges under the same educational agency, a Grade III Librarian's post or a Grade II Librarian's post or a Grade I Librarian's post is available, to which the Grade IV Librarian can aspire for promotion, then, only the Grade IV Librarian would be eligible for time bound higher grade promotion in the scale of pay applicable to Grade III Librarians. Therefore, I do not find any merit in the contention of the petitioners that Grade IV Librarians of aided colleges are eligible for time bound higher WPC 20546/07 10 grade promotion in the scale of pay applicable to Grade III Librarians even if there are no Grade III Librarians' posts available in the college or colleges under the same educational agency. 5. The learned counsel for the petitioners would try to make out a case of discrimination as between Grade IV Librarians of aided colleges and Government colleges. She would also point out that in colleges where there are Grade I Librarians, only grade IV Librarians' posts are sanctioned. If that be so, the remedy of the petitioners lies in moving the respondents for sanction of the higher grade Librarian's posts in their college and then seek either regular promotion or time bound higher grade promotion as applicable to Grade III Librarians. In the above circumstances, I do not find any merit in the Writ Petition and it is accordingly dismissed. S.SIRI JAGAN, JUDGE sta WPC 20546/07 11 WPC 20546/07 12