IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 8TH DECEMBER 2009 / 17TH AGRAHAYANA 1931 WP(C).No. 30763 of 2008(K) --------------------------------------- PETITIONER(S): ----------------------- M.K.SULAIMAN, HEAD OF THE DEPARTMENT, DEPARTMENT OF COMPUTER SCIENCE AND ENGINEERING, T.K.M.COLLEGE OF ENGINEERING, KOLLAM. BY ADVS. MR.P.A.MOHAMMED SHAH MR.P.H.SHAJAHAN RESPONDENT(S): -------------------------- 1. UNIVERSITY OF KERALA REPRESENTED BY ITS REGISTRAR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM. 2. VICE CHANCELLOR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM. 3. CHAIRMAN, GOVERNING BODY, THANGAL KUNJU MUSALIAR COLLEGE OF ENGINEERING, KOLLAM. 4. DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. R1 & R2 BY ADV. MR.M.RAJAGOPALAN NAIR, SC, KERALA UTY. R3 BY ADVS.MR.N.SUGATHAN, SMT.VARSHA BHASKAR, SRI.S.PRASANTH (AYYAPPANKAVU). R4 BY GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30763/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. 7589/88 AND CONNECTED CASES DTD. 22.3.1994. P2:- COPY OF THE COMMON JUDGMENT OF THE SINGLE BENCH OF THIS HONOURABLE COURT IN OP. NO. 13243/97, OP. 14283/96 AND OP. 15920/94 DTD. 6.12.01. P3:- COPY OF THE COMMON JUDGMENT OF THE DIVISION BENCH OF THIS HONOURABLE COURT IN WA. 4078/01, WA. 208/02 AND 2A. 351/01 DTD. 21.7.05. P4:- COPY OF THE COMMON JUDGMENT OF DIVISION BENCH OF THIS HONOURABLE COURT IN WA. 4078/01, WA. 208/02 AND WA. 351/02 DTD. 19.6.07. P5:- COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND , 3RD AND 4TH RESPONDENTS DT. 19.7.06. P6:- COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DTD. 1.8.06. P7:- COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT DTD. 19.5.08. P8:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN WPC. 11628/05 DTD. 23.11.05. P9:- COPY OF THE PROCEEDINGS OF THE MANAGEMENT DTD. 1.3.07. TRUE COPY P.A. TO JUDGE tss T.R RAMACHANDRAN NAIR,J. ------------------------- W.P ( C) No.30763 of 2008 -------------------------- Dated this the 8th December,2009 J U D G M E N T The petitioner herein is aggrieved by Ext.P6 by which he has been granted notional promotion as Professor of Computer Science and Engineering with effect from 15.10.1993, the date on which general promotions were effected in pursuance of the principles contained in G.O (Rt) No.1280-/93/H.Edn. dated 16.8.1993. Therein, it is also clarified that as he is given notional promotion, he will not be eligible for any monetary benefits for the period he has been given notional promotion. It is further clarified that he will be given monetary benefits from the date of assumption of charges as Professor in the Department i.e from 3.5.2004. 2. One Mathew was promoted as Professor of the Department 2.01.1987. One Sri. Rajendran was working as Assistant Professor in Electrical Department and he claimed appointment in the said vacancy. But he did not succeed. Thereafter, the management notified one post of W.P ( C) No.30763 of 2008 2 Assistant Professor and two posts of Lecturers in the Department of Computer Science and Engineering. Petitioner applied for Lecturer post and Rajendran applied for Assistant Professor Post. Petitioner was Rank No.2 in the Lecturer Post and the petitioner was appointed as Lecturer. Since the first rank holder in the lone post of Assistant Professor did not join, no appointment was made from the said rank list and the rank list got expired. 3. The Government later sanctioned another vacancy of Assistant Professor on 17.03.1988. Since there were two vacancies, the petitioner and Sri.Mudarkannu were promoted as Assistant Professors. This was challenged in O.P. No.8238 of 1991 by Sri.Rajendran. The claim of Sri.Rajendran was repelled by this Court in the final judgment. There was a a further direction to the Management to consider the claim of Sri.Rajendran during the direct appointment of Professor. Ext.P1 is the copy of the said judgment. Later the management decided to promote Sri.Rajendran as Professor of Computer Science and Engineering with W.P ( C) No.30763 of 2008 3 effect from 09.01.1987 and accordingly he was appointed from 15.02.1997. Petitioner was reverted from the post from 15.02.1997. This was challenged in O.P. No.13243/1997 and 14283/1996. The management also filed writ petition challenging the direction issued by the University in O.P. No.15920/1994. Writ petition filed by the petitioner was allowed and orders issued by the Management were set aside. Accordingly a direction was issued to the University to consider the approval of the appointment to the petitioner as Assistant Professor and with a further direction to the Management to consider his plea in accordance with the terms of approval. Ext.P2 is the copy of the said judgment. This was subjected to challenge in W.A No.4078/2001 and connected cases by Sri.Rajendran. These Writ Appeals were dismissed by Ext.P3 judgment and again he filed a review petition and the review was disposed of by Ext.P4. 4. Petitioner was promoted to the post of Assistant Professor on 4.10.1988. In implementation of the direction issued by this Court in W.A No.13243/1997, the W.P ( C) No.30763 of 2008 4 Management issued Ext.P6 order. The petitioner's case is that he is entitled to get promotion as Professor in the Department of Computer Science and Engineering from 19.12.1991 on wards as he was the seniormost Assistant Professor in the Department at that point of time. 5. The contention of the petitioner regarding his entitlement is sought to be supported in the light of the fact that the writ petition filed by Sri.Rejendran was dismissed and the eligible rights of the petitioner has been recognised by this Court. It is also pointed out that promotion from 19.12.1991 is not approved even though he was discharging his duties from that date until the management promoted Sri.Rajendran from 15.2.1997. 6. Petitioner has also produced along with the reply affidavit Ext.P8 a copy of the judgment in W.P(C) No.11628 of 2005 and the consequent proceedings issued by the Management as per Ext.P9 in respect of various promotions and giving effect to the promotions with effect from the dates of occurrence of vacancies in terms of the directions issued in Ext.P8 judgment. W.P ( C) No.30763 of 2008 5 7. Heard the learned counsel for the petitioner and learned counsel for the Management and the learned Government Pleader. 8. We are concerned with the period from 1991 till the year 1997. Going by the judgments in the Writ Appeal and the review petition, the benefits for the period from 1997 to 2004 paid to the other claimant, Sri.Rajendran was not disturbed by this Court. Even though the petitioner succeeded in getting a favourable judgment, this Court did not interfere with the grant of benefits to the said person as evident from the judgment itself. Sri.Rajendran has retired from service while the writ appeal was pending. 9. Admittedly, the petitioner has received the benefits only from 2004 onwards. In the counter affidavit filed on behalf of the 4th respondent, it is averred in paragraph 6 that the petitioner was the senior most Assistant professor in the Department with effect from 19.12.1991 when his senior Sri. Mudarkannu, Assistant Professor proceeded on Leave Without Allowance to take up employment abroad. The contention raised by the 1st W.P ( C) No.30763 of 2008 6 respondent University is that after Sri. Rajendran retired from service on 30.4.2004 and the petitioner was promoted as Professor against retirement vacancy with effect from 3.5.2004 and this was approved by the University in terms of the judgment in the Review Petition filed by him. Petitioner is notionally promoted as Professor of Computer Science and Technology from 15.10.1993 to 2.5.2004. This is evident from Ext.P7 which is not challenged in this writ petition. 10. The Management supports the order impugned namely Ext.P6. It is also submitted that the petitioner did not challenge it at the right point of time. It is also pointed out that the petitioner was given notional promotion from 15.10.1993 in accordance with the prescriptions contained in G.O (Rt) No.1280/93/H.Edn. Dated 16.8.1993. The said Government Order relates to promotion of teachers in Government Engineering Colleges. 10. After the matter was heard on an earlier occasion, the learned counsel for the Management was directed to get instructions as to whether the petitioner W.P ( C) No.30763 of 2008 7 had been discharging his duties from 19.12.1991. 11. Learned counsel for the management produced before me for perusal a letter dated 25.11.2009 from the Principal which contains the following details: "1. Sri.Sulaiman Mundekkattil, Asst. Professor of Computer Science and Engg. Department of this Institution has discharged duties of Professor and Head of the Department w.e.f 16.9.1992 to 14.2.1997 (Sri.M.A Mathew, Professor was on Leave preparatory to retirement from 16.9.1992 to 31.3.1993) 2. Sri.M.A Mathew, Professor of Computer Science and Engg. Department of this Institution has retired from the service of this Institution w.e.f 31.3.1993 A.N Sri.Mudarkannu, Asst. professor has sanctioned L.W.A for a period of eleven years from 19.12.1991 to 18.12.2002. He has not rejoined duty after L.W.A and submitted resignation. Since he has not rejoined duty, his resignation was accepted w.e.f 19.12.1991, the date from which he entered on L.W.A. 3. Sri.Rajendran assumes charges of Professor w.e.f 15.2.1997 and disbursed salary of Professor w.e.f 15.2.1997". 12. Going by the same, the petitioner has started discharging the duties of Professor and Head of the Department with effect from 16.9.1992. 13. The question therefore turns around as to whether the petitioner is eligible to get promotion and W.P ( C) No.30763 of 2008 8 benefits allowable from the said date or from the date of occurrence of vacancy. 14. Learned counsel for petitioner submits that in the light of Ext.P8 judgment, petitioner is entitled for promotion to the date of occurrence of vacancy i.e from 19.12.1991. A reading of Ext.P8 judgment shows that the challenge therein was to the Government Order dated 16.8.1993 which is relied on in Ext.P6 herein also. This Court after considering various contentions therein, was of the view that the parties concerned are entitled to promotion from the date of occurrence of vacancy. It was held in para 3 thus. "There are only three Engineering Colleges in the State in the Aided Sector and in two Engineering Colleges promotions have been effected from the date of occurrence of vacancy and those promotions have been approved also. If that be so, there is no point in discriminating the teachers under the 4th respondent, the only one college in the aided Sector". 15. In the light of Ext.P8 judgment, the management has issued revised proceedings in respect of Professors in various Departments, as evident from Ext.P9, wherein, the promotions have been effected from the date of occurrence W.P ( C) No.30763 of 2008 9 of vacancy itself. In the light of the fact that similarly placed teachers have been granted promotion with effect from the date of occurrence of vacancy in the light of Ext.P8 judgment, petitioner is also entitled for the said benefit. As held by this Court in Ext.P8, petitioner is entitled to get promotion from the date of occurrence of vacancy and the benefits from the date on which he started discharging his duties as Professor. 16. Therefore, the writ petition is allowed. Ext.P6 to the extent to which the petitioner is granted notional promotion with effect from 15.10.1993 is set aside. Consequently Ext.P7 also is quashed. The management will issue revised proceedings granting promotion to the petitioner as Professor from 19.12.1991 that is the date of occurrence of vacancy in the Department. But the petitioner will be entitled for consequential benefits only from 16.9.1992, the date on which he started discharging his duties as Professor. Appropriate revised proceedings will be issued within a period of one month from the date of receipt of a copy of this judgment. It is made clear that the W.P ( C) No.30763 of 2008 10 petitioner will not be entitled for the benefits for the period from 15.2.1997 till 3.5.2004 ( the period during which the benefits were paid to Rajendran). On the basis of the revised proceedings, the University will pass appropriate orders regarding the approval of his appointment. Based on the same, the petitioner will be entitled to claim monetary benefits also. The management will therefore submit the proposal before the University for approval. The University will pass appropriate orders within a further period of three months from the date of receipt of the proposal from the Management. No Costs. T.R RAMACHANDRAN NAIR, JUDGE ma W.P ( C) No.30763 of 2008 11 W.P ( C) No.30763 of 2008 12