IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 30802 of 2007(P) -------------------------- PETITIONER(S): --------------- DR. P.MAYA DEVI, ASSOCIATE PROFESSOR, DEPARTMENT OF PLANT BREEDING & GENETICS COLLEGE OF AGRICULTURE, VELLAYANI, THIRUVANANTHAPURAM. BY ADV. SRI.P.V.JAYACHANDRAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY AGRICULTURAL PRODUCTION COMMISSIONER, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE VICE CHANCELLOR, KERALA AGRICULTURE UNIVERSITY, KAU POST, VELLANIKKARA, THRISSUR. 3. THE REGISTRAR, KERALA AGRICULTURAL UNIVERSITY, KAU POST, VELLANIKKARA, THRISSUR. ADV. SRI.K.P.MUJEEB,SC,KERALA AGRL.UTY FOR R2-3 GOVERNMENT PLEADER SMT.R.BINDU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2010, ALONG WITH WPC NO.30880/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C.NO.30882/2007 A P P E N D I X PETITIONER'S EXHIBITS : EXT.P1 : TRUE COPY OF THE G.O.(P) NO.171/99 DT. 21.12.1999. EXT.P2 : TRUE COPY OF G.O.(P) NO.40/2002/H.EDN. DT. 30.4.2002. EXT.P3 : TRUE COPY OF THE APPEAL PETITION. EXT.P4 : TRUE COPY OF THE RECOMMENDATION OF THE SELECTION COMMITTEE DT. 13.7.2007, EXT.P5 : TRUE COPY OF THE LETTER NO.F-3-1/94 [PS] -6 DATED 5.10.2000. EXT.P6 : TRUE COPY OF THE PROCEEDING NO.GA/C2/10177/99 DT. 15.10.2005. EXT.P7 : TRUE COPY OF THE NO.GA/C2/10177/99 DT. 4.8.2006. EXT.P8 : TRUE COPY OF THE ORDER NO.GA/C1/22740/07 DT. 4.7.2007. EXT.P9 : TRUE COPY OF THE ORDER GA/C1/18200/06 DT. 26.5.2007. EXT.P10 : TRUE COPY OF THE LETTER NO.GA/K1/954/2008 DT. 20.3.2009. K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.P.(C) Nos.30802 of 2007, 34211 & 30880 of 2007, 2847, 3813, 3528, 3529, 29266 & 35224 of 2008 ---------------------------------------------- Dated 22nd February, 2010. J U D G M E N T Balakrishnan Nair, J. W.P.(C) No.30802 of 2007 The petitioner joined the service of the Kerala Agricultural University, as Junior Assistant Professor, on 20.12.1979. Later, she was directly recruited to the post of Assistant Professor, on 26.11.1983. Further, she was granted non-cadre promotion as Associate Professor, with effect from 20.12.1989. When the UGC/ICAR Scheme was implemented, she opted to be governed by the same. So, she was inducted as Associate Professor, with effect from 20.12.1989, in the scale of pay of Rs.3,700-5,700/-. Later, when 1996 UGC Scheme was implemented with effect from 1.1.1996, the petitioner was placed in the scale of pay of Rs.12,000-18,300, which was the scale of pay fixed for Associate Professor/Reader. The petitioner acquired Ph.D. degree, on 1.10.2001. The Selection Committee considered her claim for promotion and recommended to give her WP(C) NO.30802/07 & connected cases 2 career advancement promotion to the post of Professor, with effect from 18.10.2001. The petitioner submits that the said decision was approved by the Executive Committee on 27.7.2007 and the General Council on 28.7.2007. But, the third respondent Registrar is not implementing the same, on the ground that the petitioner does not have eight years' service, after the acquisition of Ph.D. degree, it is submitted. According to the petitioner, the said stand of the second respondent is not correct. She should be treated as a Reader with effect from 1.1.1996 and she has service in the equivalent cadre of Associate Professor, from 20.12.1989, it is submitted. It is further submitted that the Selection Committee has rightly found her eligible to be placed in the cadre of Professor, with effect from 18.10.2001. Therefore, the Writ Petition was filed, seeking the following reliefs:- “(a) Issue a writ of mandamus or appropriate writs directions or orders directing the respondents 2 and 3 to issue order granting career advancement promotion to the post of Professor in the scale of pay of Rs.16400-22400 in 1996 UGC scheme with effect from 18.11.2001. (b) Issue a writ of mandamus or appropriate writs directions or orders directing the 3rd respondent to produce the records of the Selection Committee in respect of the petitioner's career advancement promotion and further directing to order the scale of pay of Rs.16400-22400 to the petitioner in 1996 UGC WP(C) NO.30802/07 & connected cases 3 scheme with effect from 18.11.2001. (c) Direct the respondents to disburse the arrears of salary and other monetary benefits forthwith with effect from 18.11.2001 to the post of Professor with pay scale of Rs.16400- 22400 forthwith.” 2. The second respondent has filed a statement. According to the second respondent, the service of the petitioner as Reader can be reckoned, only with effect from the date she acquired the Ph.D. degree. Since she has not completed eight years' service thereafter, she cannot be granted promotion as Professor, with effect from 18.10.2001, it is submitted. It is also submitted that the views of the Government have been sought in the matter. 3. The petitioner has filed a reply affidavit, dealing with the averments in the statement of the University. Along with that, she has filed I.A.1870/2010, a petition for accepting the document, Ext.P5, which would show that eight years' service as Reader is mandatory for making an incumbent eligible for consideration for promotion, from the post of Reader to the post of Professor, under the Career Advancement Scheme. WP(C) NO.30802/07 & connected cases 4 4. We heard the learned counsel on both sides. According to the learned counsel for the petitioner, the scale of pay of Associate Professor and Reader is one and the same. New designation was introduced with the commencement of 1996 UGC Scheme and therefore, from 1.1.1996, the petitioner should be treated as a Reader, though she does not have the Ph.D. degree. 5. The learned Standing Counsel for the University, on the other hand, would submit that for designation of Associate Professor as Reader, acquisition of Ph.D. degree is mandatory. In this case, the petitioner acquired the said qualification, only on 1.10.2001. So, only thereafter, it can be said that she has service in the cadre of Reader. Unless she completes eight years' service in the post of Reader, after the acquisition of Ph.D. degree, she cannot be considered for promotion to the post of Professor, it is submitted. 6. Ext.P1 is the 1996 UGC Scheme, as adopted for the Kerala Agricultural University, by the State Government. Clause 6.7 of the said Scheme reads as follows :- WP(C) NO.30802/07 & connected cases 5 “6.7. The Ph.D. should continue to be a compulsory requirement for the designation of Reader. However, for other categories, like those of Registrars, Librarians and Physical Education Directors, the Ph.D. should be a desirable and not an essential qualification.” The above clause would show that Ph.D. degree was always a mandatory qualification for the designation of Reader. Clause 6.21 reads as follows :- “6.21. For movement into grades of Reader and above, the minimum eligibility criterion would be Ph.D. Those without Ph.D. can go up to the level of Lecturer (Selection Grade).” The above clause would show that for moving into the grade of Reader, acquisition of Ph.D. is mandatory. Clause 6.22 reads as follows :- “6.22. A Reader with a minimum of eight years of service in that grade will be eligible to be considered for appointment as a Professor.” So, a Reader has to complete eight years' service to become eligible to be considered for appointment as Professor. For promotion to the post of Reader, as evident from Clause 6.27, acquisition of Ph.D. degree is mandatory. The said clause reads as follows :- WP(C) NO.30802/07 & connected cases 6 “6.27. A Lecturer in the Senior Scale will be eligible for promotion to the post of Reader if she/he has : (i) Completed 5 years of service in the Senior Scale. (ii) Obtained a Ph.D. degree or has equivalent published work. (iii) Made some mark in the areas of scholarship and research as evidenced e.g. by self-assessment, reports of referees, quality of publications, contribution to educational innovation, design of new courses and curricula and extension activities. (iv) After placement in the Senior Scale participated in two refresher courses/summer institutes of approved duration, or engaged in other appropriate continuing education programmes of comparable quality as may be specified or approved by the University Grants Commission, and (v) Possesses consistently good performance appraisal reports.” Clause 6.29 would show that eight years' service as Reader is mandatory for promotion as Professor. The said clause reads as follows :- “In addition to the sanctioned position of Professors, which must be filled in through direct recruitment through all India advertisements, promotions may be made from the post of Reader to that of Professor after 8 years of service as Reader.” Going by the above statutory provisions, we think, the petitioner can be considered as a Reader only from 1.10.2001, the date on which she acquired the Ph.D. qualification. Going by Clause 6.29, it is manifestly clear that the petitioner has to complete eight WP(C) NO.30802/07 & connected cases 7 years' service in the post of Reader, i.e., eight years' service, after the acquisition of Ph.D., to become eligible for promotion as Professor. So, we find nothing wrong with the stand taken by the second respondent. In the absence of a legal right and a corresponding duty in the second respondent, this Court cannot issue any mandamus, as sought for by the petitioner. Accordingly, the Writ Petition is dismissed. Needless to say, this judgment will not affect her claim for promotion as Professor, on completion of 8 years' service from the date of acquisition of Ph.D. degree, i.e., 1.10.2001. W.P.(C) Nos.30880/07 & 34211/07 : The facts of these cases are identical to that of W.P.(C) No.30802/07. The petitioners in these cases also can claim consideration for promotion to the post of Professor, on completion of 8 years' service in the post of Reader, after the acquisition of the Ph.D. degree. Therefore, these Writ Petitions are liable to be dismissed. We do so. W.P.(C) Nos.2847, 3528, 3813, 3529, 29266 & 35224 of 2008 : In these cases, the petitioners have not so far acquired the Ph.D. degree. Therefore, going by the UGC Scheme, they are ineligible WP(C) NO.30802/07 & connected cases 8 to be considered for promotion as Professor, under the Career Advancement Scheme. Accordingly, these Writ Petitions are also dismissed. Sd/- K.BALAKRISHNAN NAIR, JUDGE. Sd/- P.N.RAVINDRAN, JUDGE. tgs P.T.O. WP(C) NO.30802/07 & connected cases 9 Spoken to on 1 st March, 2010 W.P.(C)No.30802 of 2007 After the judgment was pronounced, the learned counsel for the petitioner prayed for posting the case for spoken to and the case was posted to today (1.3.2010). The petitioner produced Exts.P6 to P10 documents along with I.A.No.2937 of 2010. The contention sought to be urged based on these documents was that, now the designation of `Reader' has been changed as `Associate Professor' and every Associate Professor with eight years' service is entitled to get promotion as Professor under the Career Advancement Scheme, provided he is otherwise eligible in all respects. The cases of the similarly placed persons, who got the benefit, are also cited. Ext.P6 order deals with career advancement as per the 1996 UGC Scheme. The relevant clauses are 6.20 – 6.22 which read as follows: “6.20 Minimum length of service for eligibility to move into the grade of Assistant Professor WP(C) NO.30802/07 & connected cases 10 (Senior Scale) would be four years for those with Ph.D., five years for those with M.Phil, and six years for others at the level of Assistant Professor, and for eligibility to move into the Grade of Assistant Professor (Selection Grade/Associate Professor, the minimum length of service as Assistant Professor (Senior Scale) shall be uniformly five years. 6.21 For movement into grades of Associate Professor and above, the minimum eligibility criterion would be Ph.D. Those without Ph.D. can go up to the level of Assistant Professor (Selection Grade) 6.22 An Associate Professor with a minimum of eight years of service in that grade will be eligible to be considered for appointment as a Professor.” The above clauses would show that persons without Ph.D can only go up to the level of Assistant Professor (Selection Grade). For career advancement to the grade of Associate Professor, Ph.D is mandatory. Eight years' service for such an Associate Professor, that is who got promotion to that cadre with Ph.D, is mandatory for promotion as Professor. Clause 6.29 deals with promotion to the post of Professor which reads as follows: “6.29. In addition to the sanctioned position of Professors, which must be filled in through WP(C) NO.30802/07 & connected cases 11 direct recruitment through all India advertisements, promotions may be made from the post of Associate Professor to that of Professor after 8 years of service as Associate Professor.” It speaks of eight years' service as Associate Professor, as the bench mark qualification for being considered for promotion as Professor. But, the Associate Professor mentioned therein is one who got promotion to that cadre under clause 6.21, i.e., after acquisition of Ph.D. The petitioner became Associate Professor non-cadre initially. She became Associate Professor cadre only after she acquired Ph.D. Though she was promoted as Associate professor on 20.12.1989, it cannot be treated as a promotion to the post of Associate Professor under the 1996 UGC Scheme. The change of nomenclature of `Reader' into that of `Associate Professor' in Ext.P7 will not have any impact on the case of the petitioner. Even assuming other persons, who are ineligible have got promotion as Professor, we cannot direct the University to repeat an illegality for the sake of complying with Article 14 of the Constitution of India. In the result, we find no reason to take a different view and WP(C) NO.30802/07 & connected cases 12 we are not inclined to modify the judgment, which we have already pronounced on 22.2.2010. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.P.(C) No.30802 of 2007 ---------------------------------------------- J U D G M E N T Dated 22nd February, 2010.