IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 WP(C).No. 2381 of 2009(H) --------------------------------------- PETITIONER(S): ------------------------ PHILIP.C.JOSEPH, COMPUTER PROGRAMMER, SCHOOL OF CHEMICAL SCIENCES, MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS P.O.,KOTTAYAM. BY SRI.KRB.KAIMAL, SENIOR ADVOCATE, BY ADV. SRI.B.UNNIKRISHNA KAIMAL, SRI.V.MADHUSUDHANAN. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION (B) DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM. 2. THE MAHATMA GANDHI UNIVERSITY REPRESENTED BY ITS REGISTRAR, PRIYADARSINI HILLS PO, KOTTAYAM. R1 BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR R2 BY ADV. SRI. T.A. SHAJI, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2381/2009 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE NOTIFICATION DTD. 10/02/1994 ISSUED BY THE 2ND RESPONDENT. P2: COPY OF THE ORDER NO.AD.A.II(3)8774/95/ADM. 4/1/1996 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF THE ORDER NO.1472/93/AII(3)/ADM DTD. 18/12/1993 ISSUED BY THE 2ND RESPONDENT. P4: COPY OF THE ORDER NO.AD.A2/A5573/99 DTD. 21/02/2005 ISSUED BY THE CALICUT UNIVERSITY. P5: COPY OF THE ORDER NO.7225/88/AII (3)/ADM. DTD. 12/03/1996 ISSUED BY THE 2ND RESPONDENT. P6: COPY OF THE REPRESENTATION DTD. 15/02/2008 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. P7: COPY OF THE LETTER NO.AD AII/3/8774/95 DTD. 19/05/2008 OF THE 2ND RESPONDENT TO THE 1ST RESPONDENT. P8: COPY OF THE MEMO NO.AD.AII/3/1083/2008 DTD. 26/08/2008 OF THE 2ND RESPONDENT TO THE PETITIONER. P9: COPY OF THE GOVT. LETTER NO.15179/B4/2008/H.EDN. DTD.11/07/2008. P10: COPY OF THE ORDER NO.AD.AV-4/1112/88 DTD. 6/05/1988 ISSUED BY THE UNIVERSITY OF KERALA. P11: COPY OF THE ORDER NO.7225/88/AII (3)/ADMN DTD. 31/08/2002 ISSUED BY THE 2ND RESPONDENT. P12: COPY OF THE ORDER NO.7225/88/AII (3) ADMN DTD. 14/01/2003 ISSUED BY THE 2ND RESPONDENT. P13: COPY OF THE ORDER NO.AD.1994/2002/AII(3)/ADMN.DTD. 1/09/2005 ISSUED BY THE 2ND RESPONDENT. Kss ..2/- ..2.... WPC.NO.2381/2009 H P14: COPY OF THE ORDER NO.AD.AII(3)36/94/ADMN. DTD. 19/09/2006 ISSUED BY THE 2ND RESPONDENT. P15: COPY OF THE ORDER NO.1023/AII(3)2008/ADMN. DTD. 10/03/2008 ISSUED BY THE 2ND RESPONDENT. P16: COPY OF THE ORDER NO.4286/A1/2008/ADMN DTD. 15/10/2008 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE CIRCULAR DTD. 24/04/1997. /TRUE COPY/ P.A.TO JUDGE Kss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 2381 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of April, 2011 J U D G M E N T The petitioner was appointed as a Computer Programmer in the Mahatma Gandhi University by Ext.P2 order dated 04.01.1996 with effect from 19.12.1995. That post is a single cadre post, in the sense that there is no higher post to which the petitioner can aspire for promotion except an 8 year time bound higher grade. Therefore the petitioner has been requesting for upgradation of his post as in the case of other similarly placed employees of the University. According to the petitioner, by Ext.P3 order dated 18.12.1993, another person named Sri. P.C. Joseph, also a Computer Programmer, was upgraded as System Analyst in a higher scale of pay. According to the petitioner, in other departments also by Ext.P5 order similar upgradation was given to persons in the University. In the above circumstances, pursuant to Ext.P6 representation by the petitioner, the University, by Ext.P7, W.P.(C)No. 2381 of 2009 -2- sought sanction of the Government to upgrade the post of Computer Programmer in the School of Chemical Sciences to that of System Analyst in the scale of pay of Rs.16650– 23200/-. The Government by Ext.P9 order dated 11.07.2008 rejected the recommendation with a single line order to the effect that the Government regrets its inability to agree to the proposal since the reason furnished for the upgradation of the post doesn't hold any merit. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: “i. a writ of certiorari quashing/setting aside Exts.P-8 and P-9. ii. a writ of mandamus to the 2nd Respondent to upgrade the post of Computer Programmer held by the Petitioner as System Analyst with effect from the date of completion of 12 years service and to grant consequential scale of pay and other service benefits. iii. A writ of mandamus to reconsider Ext.P-7 and to issue orders sanctioning upgradation of the post of Computer Programmer held by the Petitioner, if it is found that such sanction is required for upgradation.” 2. The first contention raised by the petitioner is that it was not necessary for the University to seek sanction of the Government for upgradation of the post in view of W.P.(C)No. 2381 of 2009 -3- Section 23 (ix) of the Mahatma Gandhi University Act, 1985. According to the petitioner, under Section 23 (ix), the Syndicate of the University has powers to create administrative, ministerial and other necessary posts. The approval of the Government is necessary only if the creation of such posts involves expenditure in excess of the budgetary provision. According to the petitioner, in this case, even the question of creation of a post does not arise insofar it is only upgradation of the existing post and further, Ext.P7 recommendation does not state that the upgradation involves expenditure in excess of the budgetary provision. The 2nd contention raised is that, after having given benefit to a similarly placed Computer Programmer by Ext.P3, denial of the same to the petitioner is discriminatory and violative of the fundamental right of the petitioner. Thirdly, he would contend that since the issue involves civil right of the petitioner, the Government should have given reasons in their order as to why the reasons given in Ext.P7 recommendation of the University were not W.P.(C)No. 2381 of 2009 -4- acceptable. 3. Both the Government and the University have filed counter affidavits. The University, while supporting Ext.P7, would contend that they cannot do anything in the matter without sanction from the Government. But they would contend that since the upgradation would involve giving higher scale of pay to the petitioner, sanction from the Government is necessary. They would explain away Ext.P3 on the ground that after Ext.P3, Circular No.11899/B1/07/H.Edn. dated 24.04.1997 was issued by the Government, by which prior sanction from the Government was made mandatory and that is why they had to seek sanction from the Government in the petitioner's case. 4. But the learned counsel for the petitioner points out that, that argument is hollow for two reasons. First is that, the said Government Circular has been produced by the Government as Ext.R1 (a), which speaks about the requirement of prior approval only for creation of posts and not for upgradation of posts. It is further pointed out that W.P.(C)No. 2381 of 2009 -5- the University themselves had by Exts.P12, P13, P14, P15 & P16 orders dated 14.01.2003, 01.09.2005, 19.09.2006, 10.03.2008 & 15.10.2008, all of which were subsequent to Ext.R1(a) Circular, upgraded posts without prior sanction from the Government. The learned Government Pleader supports the impugned order. 5. I have considered the rival contentions in detail. 6. Section 23 (ix) reads as follows: “23. Powers of Syndicate.- Subject to the provisions of this Act and the Statutes, the executive powers of the University including the general superintendence and control over the institutions of the University shall be vested in the Syndicate and subject likewise the Syndicate shall have the following powers, namely:- x x x x x x x x x x x x x x x x (ix) to create administrative, ministerial and other necessary posts: Provided that no post shall be created by the Syndicate without the prior approval of the Government if creation of such post involves expenditure in excess of the budgetary provision.” I am of opinion that the proviso to Rule 23 (ix) does not apply in this case in view of Ext.R1 (a) Circular as well as the orders of the University referred to by the petitioner. W.P.(C)No. 2381 of 2009 -6- In Ext.R1 (a) the relevant provision reads thus: “In the light of the facts stated above Government order that no posts of teaching and non teaching staff would be created in Government and aided colleges. The Universities will not create any posts of non teaching staff without prior approval of the Government. Existing vacancies if any, of teaching and non teaching staff both in Government and aided colleges as well as the vacancies of non teaching staff in the Universities should not be filled up.” (underlining supplied) That relates to only creation of posts and not to upgradation of posts. Added to that even after Ext.R1 (a) Circular, the University themselves have issued Exts.P12 to P16 upgrading posts without obtaining prior sanction from the Government. As such, the stand taken by the University in respect of the petitioner's case alone is clearly discriminatory insofar as by Ext.P3, identically situated persons had been given the benefit of upgradation of posts. In the above circumstances, I do not find any reason whatsoever why the University should not implement Ext.P7 without approval from the Government, as a decision taken by itself without any necessity to obtain sanction from the Government. Accordingly, this writ petition is allowed and W.P.(C)No. 2381 of 2009 -7- the University is directed to implement Ext.P7 as a decision taken by the Syndicate themselves, in tune with Ext.P3 order in relation to another similarly situated Computer Programmer. Orders in this regard shall be passed as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of this judgment. This the University shall do without reference to Ext.P9 letter from the Government insofar as prior permission from the Government is not necessary for the same. The writ petition is disposed of as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/