IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 WP(C).No. 24022 of 2003(I) -------------------------------------- PETITIONER(S): ------------------------ 1. MANY M.A., SELECTION GRADE ASSISTANT, DIRECTORATE OF PHYSICAL PLANT, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR. 2. WILLIAM C.T., SELECTION GRADE ASSISTANT, COLLEGE OF HORTICULTURE, DO.DO. 3. ANITHAKUMARI. A., SELECTION GRADE ASSISTANT, ACADEMIC WING, DO.DO. 4. AJITH KUMAR. B., SENIOR GRADE ASSISTANT, FINANCE WING, DO.DO. 5. PIUSA FELIX, SENIOR GRADE ASSISTANT COLLEGE OF VETERINARY & ANIMAL SCIENCES, MANNUTHY, THRISSUR 6. DAVIS G.O., SENIOR GRADE ASSISTANT, DIRECTORATE OF EXTENSION, KERALA AGRL. UNIVERSITY VELLANIKKARA, THRISSUR 7. MURUKES. K.N., SENIOR GRADE ASSISTANT, ESTATE OFFICE, DO.DO. BY ADV. SRI.N.SUGATHAN RESPONDENT(S): -------------------------- 1. THE KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY THE REGISTRAR, VELLANIKKARA, THRISSUR 2. THE EXECUTIVE COMMITTEE OF KERALA AGRICULTURAL UNIVERSITY, REPRESENTED BY THE VICE-CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR 3. SATHIASEELAN V.S., SELECTION GRADE ASSISTANT, DIRECTORATE OF RESEARCH, KERALA AGRICULTURAL UNIVERSITY HEADQUARTERS, VELLANIKKARA, THRISSUR. WP(C).No. 24022 of 2003(I) 4. PREMA. P., SELECTION GRADE ASSISTANT, DIRECTORATE OF PHYSICAL PLANT, K.A.U. HEADQUARTERS, VELLANIKKARA, THRISSUR 5. MADHUSOODANAN P.G., SELECTION GRADE ASSISTANT, FINANCE WING, K.A.U.HEADQUARTERS, VELLANIKKARA, THRISSUR. 6. DALIKA E.K., SELECTION GRADE ASSISTANT, FINANCE WING, K.A.U. HEADQUARTERS, VELLANIKKARA, THRISSUR 7. GOPAKUMAR .S., SELECTION GRADE ASSISTANT, K.A.U. SUGARCANE RESEARCH STATION, KALLUNGAL, THIRUVALLA 8. GEORGE P.A., SELECTION GRADE ASSISTANT, ENGINEERING DIVISION, KERALA AGRICULTURAL UNIVERSITY, PANANAD, ERNAKULAM. 9. HARINATH. K., SENIOR GRADE ASSISTANT, ADMINISTRATION WING, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR 10. RAPHI C.P. SENIOR GRADE ASSISTANT, ACADEMIC WING, KERALA AGRL. UNIVERSITY, VELLANIKKARA, THRISSUR 11. RAJESWARY. A., SENIOR GRADE ASSISTANT, FINANCE WING, DO.DO. R1 & R2 BY ADV. MR.K.P. MUJEEB, SC, AGRL.UNTY. R8 BY SRI.K.R.B. KAIMAL, SENIOR ADVOCATE R9 TO R11 BY ADV. MR.S.P.ARAVINDAKSHAN PILLAI. R3, R4, R6 & R7 BY ADV. MR.K.G. PAVITHRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2010, ALONG WITH WP(C) NO. 25366 OF 2003 AND CONNECTED CASES,THE COURT ON 11/06/2010 DELIVERED THE FOLLOWING: WP(C).No. 24022 of 2003(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE EXTRACT OF ORDER NO.GA/A2/27936/91 DATED 26/10/1991 OF THE UNIVERSITY. EXT.P2: COPY OF THE ORDER NO.GA/A2/44713/93 DATED 15/01/1994 OF THE UNIVERSITY. EXT.P3: COPY OF THE ORDER NO.GA/A2/4474/2001 DATED 16/07/2002 OF THE UNIVERSITY. EXT.P4: COPY OF THE ORDER NO.GA/A2/7974/2003 DATED 16/05/2003 OF THE UNIVERSITY. EXT.P5: COPY OF THE CIRCULAR NO.GA/A2/48735/97 DATED 29/02/2000 OF THE UNIVERSITY. EXT.P5(a): COPY OF THE EXTRACT OF SENIORITY LIST OF SENIOR GRADE ASSISTANTS AS ON 01/01/2000. EXT.P6: COPY OF THE ORDER NO.GA/A2/1939/2003 DATED 05/07/2003 OF THE UNIVERSITY. EXT.P7: COPY OF THE NOTICE NO.GA/A2/1939/2003 DATED 01/04/2003 OF THE UNIVERSITY. EXT.P8: COPY OF THE REPRESENTATION DATED 08/07/2003 SUBMITTED BY 1ST PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P9: COPY OF THE JUDGMENT DATED 13/11/2002 IN W.A. NO. 672/2001. EXT.P10: COPY OF THE LETTER NO.GA/A2/18301/93 DATED 06/05/1993 OF THE UNIVERSITY. EXT.P11: COPY OF THE CIRCULAR DATED 20/10/2003 ISSUED BY THE UNIVERSITY WITH THE SENIORITY LIST. EXT.P12: COPY OF THE OBJECTION DATED 03/11/2003 FILED BY THE 3RD PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P13: COPY OF THE ORDER DATED 31/01/2004 ISSUED BY THE UNIVERSITY WITH THE MODIFIED SENIORITY LIST. EXT.P14: COPY OF THE ERRATUM DATED 23/02/2004 ISSUED BY THE UNIVERSITY. EXT.P15: COPY OF THE STATUTES ISSUED IN S.R. NO.293/72. EXT.P16: COPY OF THE NOTIFICATION NO.GA/28798/91 DATED 10/11/1978 ISSUED BY THE UNIVERSITY. EXT.P17: COPY OF THE ORDER NO.GA/A3/28798/91 DATED 24/07/1991 ISSUED BY THE UNIVERSITY. WP(C).No. 24022 of 2003(I) EXT.P18: COPY OF THE ORDER NO.GA/A3/27960/91 DATED 24/07/1991 ISSUED BY THE UNIVERSITY. EXT.P18 (I.A.10700/2004): COPY OF THE ORDER NO.GA/A3/1939/2003 DATED 07/04/2003 ISSUED BY THE UNIVERSITY. EXT.P19: COPY OF THE ORDER NO.GA/A3/8834/2003 DATED 19/06/2004 ISSUED BY THE UNIVERSITY. EXT.P20: COPY OF THE ORDER NO.GA/A2/1939/2004 DATED 02/07/2004 ISSUED BY THE UNIVERSITY. EXT.P20(a): COPY OF THE STATEMENT OF FIXATION OF PAY RELATING TO THE 3RD PETITIONER IN THE CATEGORY OF ASST. GRADE I. EXT.P20(b): COPY OF THE STATEMENT OF FIXATION OF PAY IN THE CATEGORY OF SENIOR GRADE ASSISTANT. EXT.P20(c): COPY OF THE STATEMENT OF FIXATION OF PAY IN THE CATEGORY OF SELECTION GRADE ASSISTANT. EXT.P21: COPY OF THE NOTE NO.GA/A2/1939/03 DATED 06/02/2006. RESPONDENT'S EXHIBITS: EXT.R9(a): COPY OF THE JUDGMENT IN O.P. NO. 5169/1992-M DATED 10/04/1992 OF THIS HONOURABLE COURT. EXT.R9(b): COPY OF THE LETTER NO.GA/A2/18301/91 DATED 13/05/1992 OF THE REGISTRAR, KAU. EXT.R9(c): COPY OF THE LETTER NO.GA/A2/18301/91 DATED 06/05/1993 OF THE REGISTRAR OF THE 1ST RESPONDENT. EXT.R9(d): COPY OF THE COMMON JUDGMENT IN O.P. NO. 10991/95-H DATED 11/12/2000 OF THIS HONOURABLE COURT. EXT.R9(e): COPY OF THE AMENDMENT AS PER NOTIFICATION NO.GA/561/A3/82 DATED 03/10/1983. EXT.R9(f): COPY OF THE NOTE FOR THE EXECUTIVE COMMITTEE ITEM NO.83/88. EXT.R9(g): COPY OF THE UNIVERSITY NOTIFICATION NO.GA/4538/A3/83 DATED 17/10/1984. //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.24022/2003-I, 25366/2003-T, 25690/2003-G 28260/2003-L, 30442/2003-Y & 1605/2004-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of June, 2010. JUDGMENT These writ petitions raise a common issue regarding the challenge against revision of seniority list of Assistants Grade I by the Agricultural University. Since common issues arise for consideration, they are disposed of by a common judgment. W.P.(C) No.24022/2003 was argued as the main case. Therefore, the facts narrated therein which are similar to the facts of the other writ petitions, are as follows: 2. Heard Shri N. Sugathan, Shri K.P. Dandapani, learned Senior Counsel, Shri M.P. Ashok Kumar, Shri P. Goapalakrishnan Nair and Shri P.N. Santhosh, learned counsel appearing for the petitioners, Shri K.P. Mujeeb, learned Standing Counsel for the University, and learned Senior Counsel Shri K.R.B. Kaimal and Shri S.P. Aravindakshan Pillai appearing for the contesting respondents. 3. The petitioners in these writ petitions were appointed as Assistants Grade II in the years 1988 and 1989. They have been promoted as Assistants Grade I later, on various dates. Subsequent promotions have wpc 24022/2003, etc. 2 also been granted to them. As per the terms of the Ordinance regarding departmental test, all the University employees will have to pass the examination conducted by the Public Service Commission in respect of Manual of Office Procedure and Account Test (Lower). According to the petitioners, as per S.R.O. No.293/72 dated 15.6.1972 the Statute prescribing conditions of service of teachers and other employees of the Kerala Agricultural University were issued, wherein the service has been classified as Classes I to IV. It is pointed out that the petitioners and contesting respondents belong to Class II service and therefore the period of probation of them shall be for a period of two years on duty within a period of three years unlike the employees belonging to Class III, in whose cases the period of probation is one year within a period of two years. It is pointed out that the petitioners have passed the test within the period of probation and therefore their promotions effected from the cadre of Assistant Grade II to the cadre of Assistant Grade I is correct. 4. As on 30.5.1989 47 vacancies were there in the cadre of Assistant Grade I. They were remaining unfilled for want of qualified hands, when the petitioners entered service. Therefore, after they completed the period of probation and based on the acquisition of test qualification, they have been duly promoted. wpc 24022/2003, etc. 3 5. Ext.P6 is the proceedings of the University revising and refixing the dates of promotion. It was stated therein that the same is issued in the light of the directions issued by this Court in W.A. Nos.672/2001 and 772/2001. Some of them were issued with Ext.P7 notice containing the proposal. Ext.P8 is one of the representations submitted to the first respondent pointing out the objections regarding the review of the seniority list. Ext.P9 is the copy of the judgment in W.A. Nos.672/2001 and 772/2001. It is pointed out that the dates of promotion of the petitioners were altered on the ground that they had not acquired the test qualification within one year of their appointment as Assistant Grade II which according to the petitioners, is not required. 6. The writ petition was amended in view of the subsequent developments. The University issued a revised provisional seniority list as per Ext.P11, calling for objections, to which the petitioners have filed Ext.P12 objections and the revised seniority list has been published as per Ext.P13. These are under attack in the writ petitions. 7. Mainly it is contended that Assistants Grade II are coming within Class II of clause 3 of Ext.P15 Statutes which was amended with effect from 28.2.1978 and which was the one in force as on the date of appointment of the petitioners. It is pointed out that as the period of wpc 24022/2003, etc. 4 probation is two years on duty within a continuous period of three years, the view taken obviously, by the respondents that it is only one year within a continuous period of two years, cannot be accepted. 8. The orders are attacked on various grounds. It is submitted that the seniority list was revised in violation of the principles of natural justice, as no proper notice was issued showing the reasons for refixation. Reliance is placed on various decisions of this Court and that of the Apex Court in R. Suseela Devi v. Kerala Public Service Commission and others {(1998) 3 SCC 242}. 9. The respondents have filed detailed counter affidavits. In the counter affidavit filed by the 9th respondent, all the contentions have been narrated in detail. Mainly it is pointed out that in the light of the judgment of the Division Bench Ext.P9, none of the contentions raised by the petitioners arise for consideration, as the issues have become final by the said judgment and the revision of the seniority list is only in terms of the findings contained therein. It is further pointed out that the earlier writ petition, O.P.No.8657/1993 was filed after taking out notice by publication also and therefore the findings are binding on the petitioners herein also. They cannot be heard to contend that some of them were not parties to the writ petitions or in the Writ Appeals. It is pointed out that the petitioners wpc 24022/2003, etc. 5 acquired the test qualification for promotion only after the contesting respondents acquired the said qualification and satisfactorily completed their period of probation in the category of Assistant Grade II. As the vacancies were remaining and as the party respondents were qualified, they had to be promoted with effect from the dates on which they were qualified. As none of the petitioners were qualified as on the date of occurrence of vacancies, the persons who became qualified earlier, have to be preferred to persons who acquired the qualification later. But the University had promoted the petitioners in violation of the well established principles and accordingly the writ petitions was filed earlier which were dismissed by Ext.R9(d) judgment. This was challenged before the Division Bench and the Writ Appeals were allowed. It is pointed out that defect, if any, in the proceedings Ext.P6, have been rectified by offering a hearing later and Exts.P13 and P14 have been issued after hearing all the affected parties. 10. It is further contended that Ext.P15 Statutes was subsequently amended as per Ext.R9(e) dated 3.10.1983 wherein the Executive Committee is given the power to classify the University service pursuant to which they have amended the same in accordance with the power conferred on them. Going by the same, the posts having scales of pay with a minimum of Rs.575/- and above but less than Rs.1100/- will be in Class III wpc 24022/2003, etc. 6 and the petitioners and the contesting respondents will come within the said category, as the scale of pay at the time of their appointment was Rs.675- 1125. Ext.R9(f) is the said classification. It is further pointed out that the petitioners are not entitled for the benefit of Rule 28(bbb) of KS & SSR as the conditions prescribed therein are not satisfied here. It is thus pointed out that as the period of probation is one year on duty within a continuous period of two years and as the party respondents have completed their probation on or before 11.8.1990, they were entitled to be promoted on or before 11.8.1990. Therefore, the refixation of seniority is perfectly valid. 11. The University, in their counter affidavit has also pointed out that they revised the seniority in the light of the directions issued in W.A. Nos.672 and 722 of 2001. It is pointed out that none of the petitioners were qualified for promotion earlier to party respondents. They appeared for Account Test (Lower) and M.O.P. Test in June 1990. The result was published only on 31.8.1990. They are not entitled for the benefit of Rule 28(bbb) of KS & SSR. As on 11.8.1990, the date specified by the Division Bench in the judgment, none of the petitioners were qualified for promotion. It is therefore submitted that the revision of seniority is perfectly valid. 12. In the light of the contentions raised by the parties, it is relevant wpc 24022/2003, etc. 7 to consider the direction issued by the Division Bench in Ext.P9 judgment. The judgment Ext.P9 reversed the decision of the learned Single Judge, produced as Ext.R9(d), wherein the learned Single Judge had placed reliance on the Decision of the Apex Court in R. Suseela Devi's case {(1998) 3 SCC 242}. In para 23 the learned Single Judge took the view that regular promotion was given to the petitioners and respondents on a subsequent date after they have successfully completed the period of probation and passed the Account Test (Lower) necessary for promotion and the contentions otherwise that the petitioners therein were qualified, was rejected. Reliance was also placed on Rule 28(a) of Part II of KS & SSR. 13. The Division Bench in Ext.P9 judgment, held thus: “Here the seniority is basis of promotion provided they are qualified. If petitioners have completed probation and they had acquired test qualification only if vacancies are available depending upon the seniority among the qualified persons, they are entitled to be promoted. They completed probation on or before 11.8.1990 and they were test qualified. Therefore on the date of completion of their probation, since there were vacancies, they were entitled to be promoted as Grade I. It is not their case that since vacancies were available even before their appointment, they should be retrospectively promoted. It is submitted that respondents 5 and6 wpc 24022/2003, etc. 8 had passed test before petitioners/appellants completed the probation. Therefore they are not affected. In the above circumstances, we direct to consider the matter that if any seniors, without acquiring test qualification before 11.8.90 is promoted, overlooking the claims of the petitioners that should be reconsidered and consequential orders should be passed by the University within three months from the date of receipt of a copy of this judgment with notice to the affected parties.” Significantly, the Division Bench has reversed the decision of the learned Single Judge. It was found that on the date of completion of the probation by the appellants, since there were vacancies, they were entitled to be promoted as they completed the probation on or before 11.8.1990 and they were test qualified. Accordingly, it was directed that if any seniors, without acquiring test qualification before 11.8.1990 are promoted, overlooking the claims of the appellants, that should be reconsidered and consequential orders should be passed by the University within the time specified therein. 14. Therefore, obviously this Court has entered findings on the merits of the matter including the entitlement of the appellants therein, vis- a-vis the respondents who are similarly placed as that of the petitioners herein. The fact that notice was taken out by publication, is not denied. If that be so, the judgment is binding on the petitioners also. Therefore, the wpc 24022/2003, etc. 9 only issue to be considered is whether any seniors without acquiring test qualification as on 11.8.1990, have been promoted. The same is the exercise done by the University now. Hence, as rightly pointed by the learned counsel for the party respondents, the various contentions raised herein are not open for consideration and the petitioners cannot raise new contentions based on Rule 28(a) of Part II K.S. & SSR or Rule 28(bbb), as those are barred by the principles of constructive res-judicata. It is clear that matters which have attained finality, cannot be re-agitated again. 15. Still, the learned counsel for the petitioners raised certain other contentions. I shall deal with the same also. Shri N. Sugathan, learned counsel appearing for the petitioners in W.P.(C) No.24022/2003 and 30442/2003 submitted that the Kerala Agricultural University Statutes, 1972 provides classification of service as Classes I to IV. The period of probation for Class II employees is two years on duty within a continuous period of three years. The petitioners and contesting respondents will come within the said Class. In the Ordinances also, with regard to the pass in M.O.P. Test, it is mentioned that every employee who is required to pass the test in the M.O.P. shall pass the said test within a total period of two years on duty within a continuous period of three years. It is therefore contended that the period of probation is two years on duty within a continuous period wpc 24022/2003, etc. 10 of three years. It is also contended that exemption from passing the test which are applicable to KS & SSR, will also apply to the petitioners. The above contentions have been supported by the learned counsel for the petitioners in the connected writ petitions. 16. Herein, the arguments raised by Shri S.P. Aravindakshan Pillai, learned counsel appearing for the 9th respondent and supported by other learned counsel for the party respondents with regard to the powers of the Executive Committee to effect amendment, are forceful. Ext.P15 is the Statutes dated 15.6.1972 containing the classification of service into four. Ext.P16 is the copy of the Ordinance dated 10.11.1978. The later amendment of the Statutes has been produced as Ext.R9(e) which is dated 1.11.1983. The amendments therein are made applicable with effect from 14.9.1983. The significant amendment in Clause 3 is the following: “The University service shall be classified as Class I, Class II, Class III and Class IV as may be decided by the Executive Committee from time to time.” Therefore, the power to classify the University service is conferred on the Executive Committee. Ext.R9(f) contains the proposal to make the amendment which was approved by the Executive Committee as per their decision in 202nd meeting dated 8.7.1988. It is clear from Ext.R9(f) that wpc 24022/2003, etc. 11 the same has been adopted in the light of the power conferred under Ext.R9 (e). Class II applies to posts on scales of pay with a minimum of Rs.1100/- and above but less than Rs.1950/- per mensem and Class III applies to posts on scales of pay with a minimum of 575/- and above but less than Rs.1100/-. Thus, the classification earlier made, was no longer subsisting after the amendment made as per Ext.R9(e) conferring power on the Executive Committee. Therefore, the petitioners are not justified in advancing their arguments based on the unamended classification. Hence, as on the date of appointment of the petitioners and party respondents, Ext.R9(f) classification was in force. Therefore, Assistants Grade II will fall within Class III. The period of probation prescribed in the Ordinance is one year on duty within a continuous period of two years. Therefore, the persons who have completed the probation on or after 11.8.1990 were entitled to be promoted as Assistant Grade I. 17. Herein, Shri N. Sugathan, learned counsel for the petitioners raised an argument that Ext.R9(f) is not followed by a University Order and therefore the same cannot be treated as a decision by the Executive Committee and it cannot be said that the same has come into effect. Learned counsel placed reliance upon the meaning of the term “decide” in P. Ramanatha Aiyar's “The Law Lexicon” which gives the meaning as wpc 24022/2003, etc. 12 follows: “To determine; to form a definite opinion; to render judgment; to give judgment for or against a party to suit or other proceeding in Court”. It is therefore contended that the proceedings Ext.R9(f) does not show that there is a valid decision of the Executive Committee which is followed by an approval by the General Council and a consequential order of the University. 18. As rightly pointed out by the learned counsel for the 9th respondent, it is clear that the Executive Committee has approved the proposal. Once they have granted approval, it cannot be said that it requires a further approval by the General Council in the light of the fact that the Executive Committee is conferred with the power to take a decision with regard to the classification of the University service. Therefore, absence of a further approval by the General Council will not affect the validity of the decision of the Executive Committee. Then, the further question is whether a separate order has to be passed by the University. None of the provisions of the Act have been pointed out to show that a separate order has to be passed by the University, once a decision has been taken validly by the Executive Committee. Obviously, the Executive Committee is exercising the powers of the Syndicate and being a body consisting of different members, it is only a normal procedure that the decisions and resolutions wpc 24022/2003, etc. 13 are reflected in the minutes itself. Therefore, probably in a case where they direct the University to issue a separate order containing the decision, the procedure can be adhered to. But that does not mean that the decision taken by the Executive Committee requires a further procedure to draw up an order to make the decision effective. In the absence of any such statutory provision, the argument raised by the learned counsel for the petitioners in that regard cannot be accepted. 19. Therefore, it is clear that in the light of Exts.R9(e) and (f), as the petitioners and contesting respondents squarely come within Class III, the period of probation is one year on duty within a continuous period of two years. This principle has been adopted by the University evidently, and rightly so, as directed by the Division Bench in Ext.P9. 20. The principles under Rule 13A of KS & SSR regarding exemption obviously do not apply here. Rule 28(bbb) of KS & SSR also will not apply here. Further, as pointed out by the learned counsel for the 9th respondent, it is well settled that all the three conditions provided therein should be there for making the rule applicable, and hence it has no relevance here. Shri N. Sugathan, learned counsel for the petitioners placed reliance upon the decision in R. Suseela Devi's case {(1998) 3 SCC 242} with regard to the fixation of interse seniority. I need not consider the effect wpc 24022/2003, etc. 14 of the said decision elaborately since the same was relied upon by the learned Single Judge while rendering Ext.R9(d) judgment to dismiss the writ petitions filed by the respondents herein. The said judgment was reversed also by the Division Bench. Therefore, it is not open for the petitioners to reiterate such a contention in this writ petition. A reading of the facts stated in Suseela Devi's case (supra) also will show that the issue considered therein was not similar. Para 4 of the judgment shows that the promotion in the said case was dependent entirely upon the seniority of the persons concerned in the cadre of Assistants Grade II. It was found therein that seniority did not depend upon the date of completion of probation of the direct recruits so appointed. Herein, the facts are obviously different and therefore the principles stated therein cannot apply. The decision of the Apex Court in State of Maharashtra v. Jagannath Achyut Karandikar (AIR 1989 SC