IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 WP(C).No. 22018 of 2008(U) ------------------------------------ PETITIONER(S): PETITIONER ------------------------------------------ N.REVEENDRAN, AGED 52,S/O.NARAYANAN, SENIOR ART INSTRUCTOR, COLLEGE OF FINE ARTS, THRISSUR, RESIDING AT THANNICKAVADAKKATHIL HOUSE, ROSE LINE, PURANATTUKARA P.O., TRICHUR, PIN - 680 551. BY ADV. MR.P.BALAKRISHNAN RESPONDENT(S): RESPONDENTS -------------------------- 1. GOVERNMENT OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION (J) DEPARTMENT. 2. DIRECTOR OF TECHNICAL EDUCATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. P.P. RAVI, SENIOR ART INSTRUCTOR, COLLEGE OF FINE ARTS, TRICHUR - 680 020. 4. M.J.JAMES, SR.ART INSTRUCTOR, RAJARAVIVARMA COLLEGE OF FINE ARTS, MAVELIKKARA 690 101 5. G.UNNIKRISHNAN, ART INSTRUCTOR, RAJA RAVI VARMA COLLEGE OF FINE ARTS, MAVELIKKARA 690 101 6. K.V.SASIDHARAN, ART INSTRUCTOR, RAJA RAVI VARMA COLLEGE OF FINE ARTS, MAVELIKKARA 690101 7. G.GOSH, ART INSTRUCTOR, COLLEGE OF FINE ARTS, TRICHUR - 680 020. 8. R.RAVEENDRAN ACHARI, ART INSTRUCTOR RAJA RAVI VARMA COLLEGE OF FINE ARTS, MAVELIKKARA 690101 9. R.SHANAWAS, ART INSTRUCTOR, RAJA RAVI VARMA COLLEGE OF FINE ARTS, MAVELIKKARA 690101. BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR ADV. MR.G.HARIHARAN FOR R3-9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2009 , ALONG WITH WPC NO. 23841 OF 2008 WPC NO. 23163 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22018 of 2008(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE APPOINTMENT ORDER DT. 20.12.1982. EXT.P2 - TRUE COPY OF THE NATIONAL DIPLOMA CERTIFICATE ALONG WITH MARK LIST. EXT.P3 - TRUE COPY OF THE DEGREE CERTIFICATE (B.F.A.) FROM THE UNIVERSITY OF KERALA. EXT.P4 - TRUE COPY OF THE PROSPECTUS FOR 1998-99 FOR ADMISSION TO 5 YEAR NATIONAL DIPLOMA COURSE. EXT.P5 - TRUE COPY OF THE PROMOTION ORDER TO THE GRADE OF SENIOR ART INSTRUCTOR DT. 15.9.1998. EXT.P6 - TRUE COPY OF THE GRADATION LIST DT. 24.5.2008. EXT.P7 - TRUE COPY OF THE REPRESENTATION DT. 20.7.2006 SUBMITTED BEFORE THE MINISTER. EXT.P8 - TRUE COPY OF THE ORDER NO. G.O.(Rt) 1906/2006/HIGHER EDUCATION, THIRUVANANTHAPURAM DT. 16.12.2006. EXT.P9 - TRUE COPY OF THE REPRESENTATION DT. 27.6.2008 SUBMITTED BEFORE THE PRINCIPAL SECRETARY. EXT.P10 - TRUE COPY OF THE ORDER NO. G.O.(MS) NO. 64/08/H.EDN. DT. 28.6.2008 PROMOTING R3 TO R9. EXT.P11 - TRUE COPY OF THE PROVISIONAL GRADATION LIST OF SUPT./SR.ART INSTRUCTOR/ART INSTRUCTOR OF FINE ARTS DT. 30.9.2003. RESPONDENTS'EXHIBITS: EXT.R3(a) - TRUE COPY OF THE COMMUNICATION DATED 24.8.2006 SEND BY THE KERALA PUBLIC SERVICE COMMISSION ADDRESSED TO THE GOVERNMENT. EXT.R3(b) - TRUE COPY OF THE SANCTION ORDER GIVEN TO RESPONDENTS NOS. 3&7 DATED 20.2.2004 TO PARTICIPATE IN THE FINAL YEAR EXAMINATION FOR NATIONAL DIPLOMA CERTIFICATE ISSUED BY THE GOVERNMENT OF KERALA. EXT.R3(c) - TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 30.9.2002 IN THE CHAMBERS OF PRINCIPAL SECRETARY, HIGHER EDUCATION, THIRUVANANTHAPURAM. EXT.R1(a) - A TRUE COPY OF THE PERCENTAGE OF MARIKS OF RESPONDENTS 3 TO 9. EXT.R1(b) - ATRUE COPY OF THE G.O.(p) NO. 215/88 H.EDN. DATED 11.10.1988. // TRUE COPY // PA TO JUDGE rhs S. SIRI JAGAN, J ............................................... W.P(C) Nos. 22018, 23163 & 23841 of 2008 ................................................. Dated this the 12th day of August, 2009 J U D G M E N T In all these three writ petitions, petitioners are teachers of the College of Fine Arts in the Kerala Technical Education Service. Petitioners in W.P(C) Nos. 23163 of 2008 and 23841 of 2008 are lecturers in Fine Arts Colleges. The petitioner in W.P(C) No. 22018 of 2008 and the party respondents in all the writ petitions entered service in Fine Arts institutes, in the same service as Art instructors. The petitioner in W.P(C) No. 22018 of 2008 was later promoted as Senior Art instructors and are working as such. They were working in the Fine Arts institutes at Thrissur and Mavelikara. Government upgraded these institutes as Fine Arts Colleges. As a result they also became staff of the colleges under the Technical Education Service. But the Government did not choose to issue appropriate orders regarding equating the post of the petitioner in W.P(C) No. 22018 of 2008 and the contesting respondents in all these writ petitions to corresponding categories in the service of the colleges. There designations continued to be W.P(C) Nos. 22018, 23163 & 23841 of 2008 -2- as before as in the institutes. 2. The petitioner in W.P(C) No. 22018 of 2008 is a senior art instructor whereas, the contesting respondents in the writ petitions are art instructors. The post of senior art instructor is a promotion post to art instructors in the institutes. The petitioners in the other two writ petitions are lecturers in the colleges. The bone of contention in these writ petitions is promotion to the post of Professor Grade II. By Ext.P9, order in W.P(C) No. 23163 of 2008 dated 28.6.2008 the Government promoted seven persons in the erstwhile institutes who are senior art instructors and art instructors as Professor Grade II and Lecturers who are the party respondents in these writ petitions. The petitioner in W.P(C) No. 23841 of 2008 does not challenge promotions of the party respondents, but he only seeks a direction to promote him also, since according to him he is similarly situated like the persons who were promoted and eligible for relaxation of rules for such promotion as given to party respondents. The petitioners in the other two writ petitions challenge the promotion granted to the party respondents on various grounds. First is that the feeder W.P(C) Nos. 22018, 23163 & 23841 of 2008 -3- category for promotion to the post of Professor Grade II is Lecturer and the persons who were promoted are either senior art instructors or art instructors who are not included in the feeder category for promotion as Professor Grade II. The second contention is that they do not possess the qualification or experience prescribed by Ext.P7 Special Rules. For becoming eligible for such promotion, according to them, persons who do not possess Degree or a Masters Degree should have the alternate qualification of pass in SSLC and first class or second class National Diploma equivalent to degree with not less than 55% marks from a recognised University or Institute in painting, together with a minimum of seven years' teaching experience after obtaining the prescribed qualification. The petitioners would point out that the University of Kerala has prescribed the qualifications of teachers in Fine Arts College, by Regulations which are produced as Ext.P8 in W.P(C) No. 23163, as per which for holding the post of professor Grade II, either a degree with not less than 55% marks or a Diploma in the concerned subject obtained after a course of study of 5 years duration from any one of the nine W.P(C) Nos. 22018, 23163 & 23841 of 2008 -4- Universities/Institutes enumerated therein are mandatory. According to the petitioners, the persons who were promoted do no hold such a diploma obtained by them. They would submit that the Diploma obtained by the promoted persons were obtained in 2005 or 2006 by passing an examination conducted by the Technical Education Department of the Government of Kerala which is not an equivalent qualification for appointment to the post of Professor Grade II. They would therefore seek a writ of certiorari quashing the Government order promoting the contesting respondents which is Ext.P9 in W.P(C) NO. 23163 of 2008, and direction to promote the petitioners to those vacancies. 3. A counter affidavit has been filed by the State as well as one of the party respondents on behalf of the others also. The contention of the State is that on upgradation of the two institutes as colleges the employees of the erstwhile institutes would be a vanishing category at the verge of retirement and in order to mitigate their hardships the Government has decided to relax the Special Rules regarding feeder category to the promotion to the post for Professor Grade II and Lecturers and those who possess W.P(C) Nos. 22018, 23163 & 23841 of 2008 -5- the qualifications prescribed for the post were given the promotion although they were not in the feeder category, considering their long years of service as art instructors. According to the learned Government Pleader, the Government has done the same by invoking Rule 39 of the Kerala State and Subordinate Services Rules. The party respondents would adopt the same contentions. 4. I have considered the rival contentions in detail. 5. At the out set, I note that the specific contention of the petitioner in W.P(C) No. 23163 of 2008 that the respondents 3 to 9 do not possess the qualifications mandated in Ext.P8 regulations and the qualifications obtained by them are not even equivalent to qualifications prescribed for appointment to the post of Professor Grade II as per special rules are not seen denied either by the State or the party respondents. The specific contention now raised before me that the promoted persons do not have also seven years experience after obtaining the prescribed educational qualifications is also not seen controverted by either the State or the party respondents. 6. The State has no case that Ext.P8 regulations of the W.P(C) Nos. 22018, 23163 & 23841 of 2008 -6- University of Kerala are not applicable to the colleges. The same prescribes the qualifications for the posts of Principal and IInd Grade Professor in Fine Arts as follows: 1. Principal II Grade Professor (a) A First Class or High Second Class Degree with not less than 55% marks in the concerned subject OR A Diploma in the concerned subject obtained after a course of study of five years' duration from any one of the following University/Institutions: 1. College of Fine Arts and Crafts, Madras 2. Sir. J.J.Institute of Applied Arts, Bombay 3. Sir J.J. School of Arts, Bombay 4. M. S. University of Baroda 5. Viswabharathi University 6. College of Arts, Delhi 7. College of Arts, Hyderabad 8. College of Arts, Calcutta 9. College of Arts, Chandigarh (b) should have 10 years' distinguished professional standing in the field” For lecturers the qualification prescribed are as follows: “2. Lecturer (a) Same as for 1 above (b) Should have 2 years' professional standing in the field.” Ext.P7 Special Rules for the college of Fine Arts prescribes W.P(C) Nos. 22018, 23163 & 23841 of 2008 -7- qualification for Professor Grade II as follows: “3. Professor Gr.II A. Department of Painting By Promotion or by direct recruitment I class or II class Degree with not less than 55% marks or a IInd class Master's Degree from a recognised University in Painting OR (a) Pass in S.S.L.C. or equivalent qualification (b) I class or II class National Diploma (equivalent to degree) with not less than 55% marks from a recognised University or institution in Painting Experience (a) 7 years teaching experience in the concerned field to the Higher Education level or standing or educational experience after obtaining the prescribed qualification. (b) Original works in the concerned branch, participation in Inter national or National Exhibitions, Seminars, one man show and group shows.” 7. So it is clear that reading Exts.P7 and P8 together even the alternate qualification of Diploma should have been one W.P(C) Nos. 22018, 23163 & 23841 of 2008 -8- obtained after a course of study of five years duration from any one of the nine institutions mentioned in Ext.P8 and as per the Special Rules the Diploma should be equivalent to degree from a recognised University or institute. Added to that seven years' teaching experience in the concerned field to the higher education level or standing or educational experience after obtaining the prescribed qualification is mandatory. Admittedly the feeder category for promotion to the post of Professor Grade II is Lecturer. The Government has not passed any formal order relaxing the feeder category or qualifications for promotion to the post of Professor Grade II. The relaxation is granted in the promotion order itself. The justification now put forward is that although they are not in the feeder category for promotion, because of their long years of experience in the Fine Arts Institutes and since the promoted persons possess prescribed qualifications, the Government decided to invoke Rule 39 of the KS&SSR for relaxing the stipulation regarding feeder category alone. From the discussion above, I am satisfied that the said reasoning itself is faulty, in so far as the promoted persons do not posses the W.P(C) Nos. 22018, 23163 & 23841 of 2008 -9- qualifications prescribed also. I am also unable to understand what is the hardship caused to the promoted persons. In fact they are getting a windfall. If they had continued in the erstwhile institutes, they would never have got this promotion or any other promotion for that matter. Under very fortuitous circumstances, they became staff of the colleges. As such I am at a loss to understand what is the hardship the Government wants to alleviate in respect of the promoted persons. That too when persons in the feeder category like petitioners in W.P(C) Nos. 23163 of 2008 and 23841 of 2008 who are fully qualified to those posts are available in various colleges under the Kerala Technical Education Services. Therefore for all the abovesaid reasons, Ext.P9 order promoting the party respondents in W.P(C) No. 23163 of 2008, which is the same as Ext.P5 in W.P(C) No. 23841 of 2008 is quashed. The Government is directed to take appropriate steps to promote qualified persons as per Rules to the available vacancies, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. 8. In view of my finding in W.P(C) No. 22018 of 2008 the W.P(C) Nos. 22018, 23163 & 23841 of 2008 -10- petitioner who is in the same situation as the persons whose promotions have been set aside also cannot be given any reliefs. These writ petitions are disposed of as above. S. SIRI JAGAN, JUDGE rhs 14.8.2009 I pronounced the above judgment in open court on 12.8.2009. On 13.8.2009, the learned counsel for the party respondents made a submission in court that he could not be present when the case was argued on 12.8.2009 and therefore he may be given an opportunity of being heard. Although I was not inclined since the counsel agreed that if his contentions are not accepted by this court, he would pay costs to the Kerala Mediation Centre as directed by this court, I posted this case to today for hearing the counsel for the party respondents. He has now filed I.A. No. 10341 of 2009, producing Ext.R7(a) Judgment W.P(C) Nos. 22018, 23163 & 23841 of 2008 -11- of this court, by which the petitioner claims that one of the respondents have been found to be qualified for promotion and Exts. R7(b) to R7(h) certificates obtained by the party respondents to prove that they have obtained five year national diploma in Fine Arts and applied arts which is the educational qualification prescribed for the post in question. I am not satisfied that the contention of the counsel for the party respondents that in Ext.R7(a) judgment, this court accepted that the petitioner in that writ petition namely M.J.James, who is one of the party respondents in these cases, is qualified for such promotion is correct. Paragraph 3 of the judgment states thus: “3. Though he was not qualified for promotion earlier, the petitioner's claim for promotion has to be considered with effect from the date he cleared the examination in National Diploma in Fine Arts. Having regard to the facts of the case, the first respondent is directed to consider the claim of the petitioner for promotion, taking into account, Exhibit P8 Diploma, in accordance with law, within three months from the date of production of a copy of this judgment.” In the same what has been held is that his claim for promotion should be considered in accordance with the diploma W.P(C) Nos. 22018, 23163 & 23841 of 2008 -12- certificate. Further this court has never found that he is fully qualified in all respects. In respect of the other documents three of the party respondents have obtained only 2nd class as per the special rules. For being qualified for promotion the candidates should have first class or second class National Diploma (equivalent to degree with not less than 55% marks) from a recognised University or institute in painting. First of all, the party respondents are not able to show me that the National Diploma is equivalent to degree. Secondly, the party respondents have not produced documents to prove that those of them, who have obtained only second class have passed the examination with 55% marks. Even otherwise, seven years' experience in the concerned field has to be after obtaining the prescribed qualification as per the special rules. Even going by the National Diplomas produced by the party respondents themselves, they obtained the same only in 2005. Therefore obviously they did not have seven years' teaching experience after obtaining the prescribed qualification. Therefore, I do not find any merit in the W.P(C) Nos. 22018, 23163 & 23841 of 2008 -13- contention of the party respondents that they are qualified for promotion as Professor Grade II. Therefore, I do not think that the judgment requires any modification, since I am not inclined to accept the contentions for the above reasons. As agreed by the counsel for the party respondents, they would together pay an amount of Rs.5000/- to the Kerala Mediation Centre as costs. This would be appended to the judgment as addendum. S. SIRI JAGAN, JUDGE rhs