IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 WP(C).No. 36095 of 2005(V) ---------------------------------------- PETITIONER(S): ------------------------ DR.S.LYLAJAM, SENIOR LECTURER IN PROSTHODONTICS, DENTAL COLLEGE, THIRUVANANTHAPURAM. BY MR.P.RAVINDRAN, SENIOR ADVOCATE BY ADV. MR.HARIKRISHNAN RAVINDRAN RESPONDENT(S): ------------------------- 1. DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 2. SECRETARY, HEALTH & FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM. 3. CONVENOR, DEPARTMENTAL PROMOTION COMMITTEE (HIGHER), HEALTH & FAMILY WELFARE (B) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 4. DR.PRAMODKUMAR.A.V., LECTURER, DEPARTMENT OF PROSTHODONTICS, CAL. R1 – R3 BY GOVERNMENT PLEADER MR.K.RAMESH R4 BY ADVS.MR.P.V.MOHANAN, MR.K.A.SALIL NARAYANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON 25/09/2009 THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.36095/2005 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 3.6.99 POSTING THE PETITIONER AS LECTURER. P2:- COPY OF THE ORDER DTD. 29.8.01 DECLARING THE PETITIONER'S PROBATION. P3:- COPY OF THE SPECIAL RULES. P4:- COPY OF THE GO(P) 145/2000 H&FWD DTD. 16.6.2000. P5:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DTD. 5.6.02. P6:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DTD. 22.3.03. P7:- COPY OF THE KERALA GAZETTE GO(P) NO.136/03/H&FWD DTD. 10.7.03. P8:- COPY OF THE INTERIM ORDER IN WPC. 25434/03 DTD. 16.3.04. P9:- COPY OF THE INTERIM ORDER IN WPC.25434/03 DTD. 27.10.05. P10:- COPY OF THE GOVERNMENT ORDER DTD. 3.12.05. P11:- COPY OF THE JUDGMENT IN OP. 2306/01 DTD. 12.6.02. P12:- COPY OF THE KERALA GAZETTE GO(P) NO.272/05/H&FWD DTD. 27.10.05. RESPONDENT'S EXHIBITS R4(a):- COPY OF THE REVISED PAY SCALE AND SERVICE DEGREE LEVEL TECHNICAL INSTITUTIONS. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 36095 of 2005-V - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of September, 2009. JUDGMENT The petitioner who claimed promotion as Assistant Professor in terms of the Special Rules, is aggrieved by the inclusion of the 4th respondent in the select list. Even though representations were filed against the same, those stand rejected. It is in these circumstances, the writ petition has been filed. 2. Necessary facts for the disposal of the writ petition are the following: The petitioner entered service as a Lecturer in Prosthodontics, on 3.6.1999 and was posted at Dental College, Kozhikode. She was later transferred to Medical College, Thiruvananthapuram on 13.12.1999. As per a later Govt. Order dated 16.6.2000, the post of Lecturer was again classified as lecturer and senior lecturer. A Lecturer who has post graduation over and above the basic degree of BDS will be posted as senior lecturer and those who have only BDS will be posted as lecturer. The petitioner was having post graduation at the time of entry in service and accordingly she was posted as senior lecturer. By Ext.P2, the probation of the petitioner was also declared. wpc 36095/2005 2 3. The next promotion is to the post of Assistant Professor and the qualification required is BDS degree and post graduation in the subject plus three years of teaching experience in the subject. The petitioner had these qualifications by the year 2002, as she was having post graduation at the time of entry in service and three years teaching experience and accordingly she filed Ext.P5 representation claiming promotion. The claim was raised in an existing vacancy. 4. The Departmental Promotion Committee met on 5.6.2003 for preparing the select list. The select list was prepared for the year 2003 and the name of the 4th respondent was included. This is evidenced by Ext.P7 Gazette Notification. Under Rule 28(b)(8) of the General Rules, the petitioner filed objection to the same. 5. The objection raised by the petitioner, to dispute the inclusion of the 4th respondent, is mainly on the plea that he acquired the post graduation in Dentistry only in April 2003 and it is mandatory to acquire a minimum three years teaching experience to qualify him for promotion to the post of Assistant Professor and therefore he was nowhere in the zone of consideration. 6. The petitioner approached this court earlier by filing W.P.(C) No.25434/2003, wherein an interim order was passed as per Ext.P9 wpc 36095/2005 3 directing the Government to consider the matter. Ext.P10 is the communication issued to the petitioner in the matter stating that the D.P.C. again met, but decided not to revise the select list. Reliance is placed therein on G.O.(P) No.272/05/H & FWD dated 27.10.2005 to the effect that while considering the teaching experience for promotion to the post of Assistant Professor in Kerala Dental Education Service, the provisions of Rule 10(ab) of the General Rules have to be taken into consideration and accordingly the minimum teaching experience for promotion to the post of Assistant Professor will be three years after post graduation as lecturer. In spite of the same, the representation of the petitioner was rejected. Ext.P11 is the judgment in O.P.No.2306/2001 wherein this court considered the impact of Rule 10(ab) of the General Rules. Ext.P12 is the order issued by the Government in implementation of Ext.P11 judgment. 7. Heard Shri P. Ravindran, learned Senior Counsel for the petitioner, learned Govt. Pleader Shri K. Ramesh and Shri P.V. Mohanan, learned counsel appearing for the 4th respondent. 8. Learned Senior counsel for the petitioner submitted that the requirement under the Special Rules is teaching experience in the subject for three years and therefore it should be one acquired after the acquisition wpc 36095/2005 4 of P.G. qualification, going by Rule 10(ab) of KS & SSR which position has been upheld by this court in Ext.P11 judgment, which has been later affirmed by a Division Bench of this court in Dr. Marykutty Jacob v. State of Kerala (ILR 2007 (4) Ker.13). It is further submitted that in Ext.P10 this principle was accepted by the Government also. Even though the Government referred to Ext.P12 Govt. Order dated 27.10.2005 therein evidently it was of the view that the said criteria can be adopted only prospectively, which cannot be justified. The date of Ext.P11 judgment is 12.6.2002, whereas the select list Ext.P7 is only dated 16.7.2003 and therefore the D.P.C. was bound by the dictum laid down in Ext.P11 judgment and could not have overlooked the findings contained in the judgment. It is therefore submitted that the impugned proceedings have to be quashed. 9. Shri P.V. Mohanan, learned counsel appearing for the 4th respondent mainly contended that after implementation of the AICTE scale of pay, the matter is governed by the stipulations of Ext.P4 and as per clause IV under the caption “Career Advancement” senior lecturers who have PG degree in the speciality concerned and also have five years of physical teaching experience will be promoted as Assistant Professors and wpc 36095/2005 5 the 4th respondent satisfies the same. It is submitted that the special rules have been superseded by the provisions of Ext.P4 as it is framed under the Central Act. It is further submitted that the conditions stipulated in AICTE Scheme governs the field and the special rules in so far as it encroaches upon the occupied field must be ignored and it cannot be pressed into service in the matter of promotion to the category of Assistant Professor under Career Advancement Scheme. Reference has been made to the relevant entries in the Constitution and the scheme provided under Ext.R4 (a) also. 10. As already noticed, the matter is covered by Ext.P11 judgment, wherein in similar circumstances, it was held that the issue is governed by Rule 10(ab) of Part II of KS & SSR. The question which arose for consideration in the said writ petition is also the same and the promotion claimed was to the post of Associate Professor in Orthodontics. Under the relevant provisions, a tutor with the prescribed qualification and three years teaching experience, is eligible to be considered for promotion as Assistant Professor. The required qualification is Master’s Degree. After considering the various contentions, it was held thus in para 2: “Even though she had more than 10 years teaching experience, the experience prescribed in the special rules must be the experience wpc 36095/2005 6 acquired after acquiring the basic qualification. Since there is no provision regarding this in the special rules the provision containing rule 10(ab) of the general rules in Part II of KS & SS Rules will apply. The said provision in the general rules says that when a qualification is prescribed for a post, unless it is otherwise specified, the qualification must be one acquired after the acquisition of the basic qualification. That being so, the petitioner is entitled to be considered for promotion only in 1992.” The appeal against the said judgment was dismissed by the Division Bench which is reported in Dr. Marykutty Jacob’s case (ILR 2007 (4) Ker. 13). It was held in para 6 thus: “Basic qualification for the post of Assistant Professor is Postgraduate degree in the subject approved by the Dental Council of India. Since Postgraduate degree in the subject is essential basic qualification for promotion to the post of Assistant Professor the candidate should have three years teaching experience in that subject on which he has got P.G. degree and as per Rule 10(ab) of the KS & SSR., it should be after acquiring the basic qualification prescribed for the post. Government vide clarificatory order dated 27.10.2005 has made it clear that “teaching experience” for promotion to the post of Assistant Professor in Kerala Dental Education Service, the provisions of Rule 10(ab) of the General Rules have to be taken into consideration. Accordingly the minimum teaching experience for promotion to the post of Assistant Professor in Kerala Dental Education Service will be three years wpc 36095/2005 7 after acquiring the Postgraduate degree.” The Division Bench also relied upon the decision of this court in Sirajudheen v. Kerala Public Service Commission (2001 (2) KLT 268) wherein the scope of Rule 10(ab) was considered. Finally it was held thus in para 9: “We therefore find no infirmity in the clarificatory order dated 27.10.2005 issued by the Government when examined in the light of the principles discussed above. Even without the above mentioned clarificatory order dated 27.10.2005, Special Rules for the Kerala Dental Education Service would show that teaching experience for three years by a candidate should be experience gained after the acquisition of postgraduate degree in the subject concerned which is more explicit when we read the Special Rules along with Rule 10(ab) of the General Rules which was inserted in the year 1993. That fact is further buttressed when we look at the Regulations framed by the Dental Council of India which says that the experience acquired must be after the postgraduation in the subject or specialisation. Therefore, at least from 1993 onwards, that is, when Rule 10(ab) was introduced in the General Rules the qualification teaching experience in the subject should be after the acquisition of the postgraduate degree in the subject concerned and it is so declared. However, we find no reason to unsettle the things which are already settled, but the rights of the parties before us are to be regulated as per the declaration made by us in this judgment.” wpc 36095/2005 8 Therefore, the basic approach made by the D.P.C. in Ext.P7 and later by the Government in Ext.P10 cannot be supported. 11. Learned counsel appearing for the 4th respondent sought to support the orders by relying on Ext.P4. The question is whether the Special Rules could be said to have been superseded by Ext.P4 which is only an executive order. Even otherwise, in the light of the various decisions of this court also, the said contention cannot be accepted. The said aspect is also covered against the 4th respondent, by various decisions of this court, viz. S.N. College v. N. Raveendran (2001 (3) KLT 938), Sudhakaran v. University of Kerala (2005 (1) KLT 133) and the judgment in W.A. No.1651/2000 reported in Balachandran v. State of Kerala (2002 (2) KLT SN page 47, Case No.57). 12. In S.N. College's case (2001 (3) KLT 938), the question was whether the provisions of the UGC scheme will supersede a qualification for appointment to the post of Principal under the University Statutes. It was held that without amending the provisions of the University Statutes, the management is not bound to follow the qualifications prescribed under the UGC Scheme. It was held thus in para 7: “The necessary amendments to that effect is yet to be made in the University Statutes. ................Necessary amendments have to be wpc 36095/2005 9 made in University Statutes and Special Rules wherever necessary to give effect to the stipulations in the Scheme by the Universities concerned and Director of Collegiate Education.............Unless and until amendments are effected in the University statutes the same would not be applicable to the private colleges. Management of private colleges are not bound to follow the same. We may indicate it is entirely for the State Government and the University authorities to regulate their affairs and face the consequences of non-compliance with the U.G.C. Regulations, as held by the Apex Court, which we have extracted herein before. We may also indicate since necessary amendments have not been incorporated in the University Statutes it cannot be held that the management of affiliated colleges are bound to follow the same. They are governed by the University Act and Statutes. U.G.C. Scheme does not become applicable because of any statutory mandate making it obligatory for the Government and the University to follow the same. It is for the State Government and the University Authorities to take steps to carry out necessary amendments in the University Act and Statutes and issue orders accordingly. Since the qualifications prescribed by the U.G.C. were not incorporated in the Statutes the Tribunal was not justified in holding that the selection conducted by the Management on the basis of the existing provisions of the University Act and Statutes is bad in law.” The said dictum squarely applies to the facts of this case also. Merely because the AICTE Scheme was there, it cannot be said that the special wpc 36095/2005 10 rules stands superseded by the conditions provided therein as regards the qualification and teaching experience for promotion to the particular post in question. This decision was followed by a learned Single Judge of this court in Sudhakaran v. University of Kerala (2005 (1) KLT 133), wherein an appointment made by the University of Kerala was challenged on similar grounds. After referring to the judgment of the Apex Court in University of Delhi v. Raj Singh (AIR 1995 SC 336), and of this court in Joykutty v. State of Kerala (2000 (3) KLT SN 38) and S.N. College v. N. Raveendran (2001 (3) KLT 938), the contention that the U.G.C. Regulations will supersede the University Act, was rejected with the following words, in para 9: “It is the admitted position that the amendments to the University Act, Statutes and Regulations thereunder are yet to come into force. .............. So much so, the contention of the petitioners that the U.G.C. Regulations would supersede the University Act, the Statutes and Regulations made thereunder cannot be accepted.” The position herein is identical. In Balachandran's case (2002 (2) KLT SN page 47, case No.57), the fixing of age limit of 55 years for superannuation for private college teachers, in the University Statutes and whether it is inconsistent with the U.G.C. Act, 1956, was considered. It was wpc 36095/2005 11 held thus: “Whether the State Legislation encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List will have to be determined by the examination of two laws and will depend upon the facts of each case. Nothing prevents the State Legislature from laying different standards or qualifications from those laid down by the Centre. When State Legislature does so it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central Law. We therefore hold that th University Statute fixing age limit of 55 for superannuation for private college teachers by the State Legislature would not encroach upon Entry 66 of Union List. On examining the Kerala University Act and the Statutes made thereunder and taking note of the fact that there is uniformity in the matter of age of retirement of private college teachers as well as Government Colleges in the State and the difference in the matter of appointment in various colleges with that of the University teachers, we are not prepared to say that fixation of age of superannuation as 55 as far as private college teachers is in any way inconsistent with or would go contrary to the U.G.C. Act and the Scheme. We therefore reject the contention raised by the petitioners and hold that their date of superannuation age is 55.” 13. In the light of the legal position thus laid down by the various Benches of this court, the argument raised by the learned counsel for the 4th respondent cannot be sustained. Further, even the Government, while wpc 36095/2005 12 disposing of the representation filed by the petitioner, did not have the view that the Special Rules will not govern the matter and the provisions of Ext.P4 are applicable. The Government was also aware of the binding judgment of this court in Ext.P11 which was implemented by a separate Government Order, viz. Ext.P12. But the Government went wrong in not following the dictum as such to redress the grievance of the petitioner and practically the principle is adopted only for future application and going by para 9 of the judgment in Dr. Marykutty Jacob's case (ILR 2007 (4) Ker. 13), the said approach itself is faulty. Even without the Government Order Ext.P12, in the light of the legal position emerging and as upheld by Ex.P11 judgment, the finding ought to have been otherwise. Ext.P12 itself was considered in para 9 of the judgment rendered by the Division Bench and it was held that it is only a clarificatory order and that at least from 1993 onwards, that is, when Rule 10(ab) was introduced in the General Rules the qualification teaching experience in the subject should be after the acquisition of the postgraduate degree in the subject concerned. The declaration of law made by the Division Bench squarely applies here. Ext.P10 therefore cannot be sustained. 14. Learned counsel appearing for the 4th respondent placed reliance wpc 36095/2005 13 upon the decision of the Apex Court in Heggade Janardhan Subharaya v. The State of Mysore and others (AIR 1963 SC 6702), R. Chitralekha v. State of Mysore and others (AIR 1964 SC 1823), D.A.V. College, Bhatinda v. The State of Punjab and others (AIR 1971 SC 1731) Prem Chand Jain and another v. R.K. Chhabra (AIR 1984 SC 981)Osmania University Teachers Association v. State of A.P. and another (AIR 1987 SC 2034), State of T.N. and another v. Adhiyaman Educational & Research Institute and others {(1995) 4 SCC 104} and Medical Council of India v. State of Karnataka and others (AIR 1998 SC 2423), to contend for the position that the provisions of AICTE Act and the Scheme framed under it will govern the field. In fact, in the light of the exposition of law rendered by the Division Bench, in S.N. College's case (2001 (3) KLT 938), the argument raised by the learned counsel for the 4th respondent by placing reliance upon the above decisions cannot be sustained. The question whether a State legislation could be held to be in conflict with the Union List thus did not arise for consideration in this case, in the light of the circumstances pointed out above. Further, the select list itself was prepared and published in terms of the Special Rules and in exercise of the powers conferred on the D.P.C. and the Government by the provisions of the wpc 36095/2005 14 General Rules. It is not on the basis of the provisions contained in Ext.P4 that the select list was published. The said aspect will cut at the root of the above argument. Therefore, I am not going in detail into the dictum laid down in those cases. Even though the provisions of the AICTE Act have also been relied upon by the learned counsel for the 4th respondent, in the light of the factual situation emerging in this case, it is unnecessary to consider those aspects in detail. 15. Learned Senior Counsel appearing for the petitioner submitted that a reading of Ex.P12 itself will show that the norms framed by the Dental Council of India will show that the teaching experience is one that is acquired after acquisition of P.G. It is therefore submitted that the question whether the provisions of AICTE Act will govern the case, does not arise for decision in this case. In fact, a reading of para 3 of Ext.P12 shows that the norms issued by the Dental Council of India have been considered by the Government while issuing the clarification. Reference was also made by the learned Senior Counsel to the Dental Council of India M.D.S. Course Regulations, 1983, wherein it is specified that for the post of Assistant Professor for MDS Course, a BDS degree of a Indian University or an equivalent qualification with post-graduate qualification in the subject with three years teaching experience after post graduation in the wpc 36095/2005 15 subject is the required qualification. I find force in the above argument also. 16. Lastly, it is contended by the learned counsel for the 4th respondent that since the 4th respondent was continuing based on his promotion after inclusion in the select list, it need not be disturbed at this distance of time. Reliance is placed on a decision of the Apex Court reported in Ram Sarup v. State of Haryana and others {(1979) 1 SCC 158}. The Apex Court, after finding that the appointment of the appellant was clearly in breach of the rules, issued directions to regularise the same on certain conditions. In fact, the said direction was issued on the particular facts of the case, which cannot be made applicable here. In H.C. Puttaswamy and others v. The Hon'ble Chief Justice of Karnataka and others {(1991) Supp (2) SCC 421), the Apex Court after finding that the appointees who were benefited by the irregular appointment against the provisions of the State, were continued for a long period of 10 years and have crossed the upper age limit, held that a humanitarian approach has to be adopted and ultimately, a direction was issued to regularise the appointment without any condition regarding age limit or passing written test, etc. It is clear that the said direction was issued on the particular facts of the case and in the light of the power available to the Apex Court under wpc 36095/2005 16 Article 142 of the Constitution of India. Therefore, as the position herein is not similar, the judgment may not have any application to the facts of this case. Apart from that, it is clear from the pleadings contained in the writ petition that the petitioner had filed a representation immediately on the arising of the vacancy, seeking for promotion and after the notification was issued by the Government by publishing the select list, valid objections were raised as empowered by the relevant provisions of Rule 28 of KS & SSR. Therefore, the continuance of the 4th respondent for a long time based on his inclusion in the select list which is found illegal, cannot help him. Therefore, the writ petition is allowed. Ext.P7 to the extent to which it includes the name of the 4th respondent in the select list for the year 2003 and Ext.P10 are quashed. There will be a direction to respondents 2 and 3 to revise Ext.P7 and