IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932 WP(C).No. 10293 of 2010(J) ---------------------------------------- PETITIONER(S): --------------------- ANTONY BEN, PROFESSOR AND HEAD OF THE DEPARTMENT, DEPARTMENT OF ARCHITECTURE, T.K.M.COLLEGE OF ENGINEERING, KOLLAM. BY ADV. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENT(S): -------------------------- 1. UNIVERSITY OF KERALA, REP.BY ITS REGISTRAR, THIRUVANANTHAPURAM. 2. THE REGISTRAR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 4. THE CHAIRMAN, GOVERNING BODY, T.K.M.COLLEGE OF ENGINEERING, KOLLAM R1 & R2 BY ADVS. SRI.M.RAJAGOPALAN NAIR R4 BY SRI.N.SUGATHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.10293/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE COMMON JUDGMENT DTD. 18.2.2003 IN W.A. 26/2003 ETC. OF THIS HONOURABLE COURT. P2:- COPY OF THE ORDER DTD. 26.2.2008 IN CIVIL APPEAL NOS. 7327-7329 OF 2004 OF THE HONOURABLE SUPREME COURT. P3:- COPY OF THE ORDER DTD. 1.5.2008 ISSUED BY THE 4TH RESPONDENT. P4:- COPY OF THE ORDER DTD. 8.1.2009 ISSUED BY THE IST RESPONDENT. P5:- COPY OF THE ORDER DTD. 1.4.2009 ISSUED BY THE 4TH RESPONDENT. TRUE COPY P.A. TO JUDGE tss C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.10293 of 2010 ---------------------------- Dated 10th August, 2010 JUDGMENT The petitioner is a retiree from the Department of Architecture. On 31.3.2010 he retired from its service as Professor. He commenced his service as Lecturer in T.K.M.College of Engineering, Kollam on 13.2.1989. His appointment was approved by the first respondent university on 20.7.1990. After his appointment as Lecturer, the petitioner acquired M.Des., which is a post-graduate degree from I.I.T., Bombay. Later, the Academic Council of the first respondent university, in their meeting dated 28.5.1990 considered the question whether the petitioner who possessed the above qualification is eligible for promotion to the higher post and whether he could be considered for promotion to the post of Assistant Professor in the Department of Architecture. Subsequently, the first respondent directed to treat the petitioner at par with the Lecturers in the Department of Architecture in the matter of seniority and consequential benefit of promotion. In other words, based on the said decision of the Academic Council, the petitioner was found entitled to be considered for promotion based on his seniority in the Department of Architecture. Aggrieved by the decision of the Academic Council and the consequential orders issued by the first respondent university, certain WP(C).No.10293/2010 2 Lecturers in the Department of Architecture in T.K.M. College of Engineering, Kollam approached this Court by filing O.P.No.4198 of 1999. In fact, they successfully challenged the said decision and the consequential orders passed by the first respondent university. In the meanwhile, the 3rd respondent as per letter dated 8.6.2000 directed the 4th respondent to review the appointment of the petitioner as Lecturer. It was challenged by the petitioner by filing O.P.No.19795 of 2000. The petitioner herein took up the matter in writ appeal. In fact, he had to file three writ appeals against three different judgments in three different writ petitions as W.A.Nos.26, 32 and 71 of 2003. The said writ appeals were jointly considered along with W.A.Nos.60 and 61 of 2003. Ext.P1 judgment would reveal that the writ appeals preferred by the petitioner viz. W.A.Nos.26, 32 and 71 of 2003 were allowed and W.A.Nos.60 and 61 of 2003 filed against him were dismissed. As per Ext.P1 it was directed as follows: “The respondent College is directed to consider the claim of the appellant for promotion to the post of Assistant Professor with effect from the date a person junior to him was promoted. The order on Ext.P13 which is the subject matter of W.A.71 of 2003 is set aside.” Ext.P13 in O.P.No.13636 of 2001 against which W.A.No.71 of 2003 was preferred would reveal that objection raised thereunder was in the matter of promotion of the petitioner. In fact, the objection made as per Ext.P13 has been extracted in paragraph 28 of Ext.P1. It would WP(C).No.10293/2010 3 reveal that the sole objection in the matter of promotion of the petitioner, viz., lacking the prescribed qualification, was found as unsustainable by this Court in Ext.P1 and accordingly, the order in Ext.P13 in O.P.No.13636 of 2001 was set aside. Civil Appeal Nos.7327- 7329 of 2004 preferred against the said judgments in the above writ appeals were also dismissed as is obvious from Ext.P2. Later, in compliance with Exts.P1 judgment and P2 order the fourth respondent has issued Ext.P3 order. Ext.P3 order in so far as it relates the petitioner reads thus: “Sri. Antony.B, Lecturer Selection Grade in Fine Arts, Department of Architecture, is deemed to have been promoted as Asst. Professor with effect from 16/03/2001 FN against the post of Assistant Professor created as per G.O. (Rt)No.427/99 H.Edn. dated 13.4.1999.” Pursuant to Ext.P3, the first respondent university has issued Ext.P4 whereby the proposal for promotion of the petitioner as Assistant Professor in the Department of Architecture with effect from 16.3.2001 was approved. Later, based on the said appointment and approval he was promoted as Professor as per Ext.P5 order dated 1.4.2009. However, no order was passed by the first respondent university in the matter of approval of the said appointment made as per Ext.P5. It is in the said circumstances that the petitioner has filed this writ petition raising his grievances against non-disbursement of salary in the category of Assistant Professor with effect from 16.3.2001 with arrears WP(C).No.10293/2010 4 and non-approval of his appointment as Professor in the Department of Architecture in T.K.M.College of Engineering, Kollam made as per Ext.P5. 2. When this matter came up for admission on 26.3.2010 , notice was issued to the respondents. Subsequently, the matter came up on 21.6.2010. The respondents were directed to file counter affidavit and for that purpose it was posted to 6.7.2010. On their failure to file counter affidavit within the said stipulated time, it was again adjourned to 20.7.2010 and time till that day was granted for filing counter affidavit as a last chance. Later, when the matter was taken up on 20.7.2010, it was found that the respondents again failed to file counter affidavit. Despite the fact that the time was granted on the earlier occasion as last chance, another opportunity was granted to the respondents for filing counter affidavit and it was ordered to be posted to 22.7.2010 and then, subsequently it was included in the hearing list. Even when this matter is taken up today for hearing, no counter affidavit has been filed by the respondents. Therefore, I am proceeding to consider this writ petition even in the absence of a counter affidavit. 3. The entitlement of the petitioner to the reliefs has to be decided in the light of Exts.P1 and P2. As already noticed herein before, as per Ext.P1, a Division Bench of this Court directed to WP(C).No.10293/2010 5 consider the claim of the petitioner for promotion to the post of Assistant Professor with effect from the date on which a person junior to him was promoted. Evidently, that date was identified as 16.3.2001, as is obvious from Ext.P3, by the fourth respondent. The said proposal and consequential promotion of the petitioner as Assistant Professor with effect from the said date, i.e. 16.3.2001 in the light of Exts.P1 and P2 was approved by the first respondent university as per Ext.P4. In the light of the said promotion and the consequential approval granted by the university, there cannot be any further impediment or objection for disbursing the salary due to the petitioner from 16.3.2001 as Assistant Professor. In the light of Exts.P1 to P4 the petitioner is legally entitled to get the salary attached to the post of Assistant Professor with effect from 16.3.2001. Accordingly, there will be a direction to the third respondent to take appropriate steps for the disbursement of the salary due to the petitioner in the category of Assistant Professor with effect from 16.3.2001 along with arrears. This shall be done within a period of two months from the date of receipt of a copy of this judgment. 4. As already noticed, the petitioner has yet another grievance. Subsequent to the promotion to the post of Assistant Professor which was approved as per Ext.P4, the fourth respondent has granted a further promotion to the petitioner as Professor as per WP(C).No.10293/2010 6 Ext.P5 dated 1.4.2009. In terms of the relevant provisions under the Kerala University Act the said order of promotion was forwarded for approval to the first respondent university. Subsequently, the petitioner retired from service, on 31.3.2010. Even then, no order has been passed on Ext.P5. There is no reason for unduly delaying a decision on Ext.P5. In fact, it should have been done prior to the retirement of the petitioner from service. Considering the fact that the petitioner has retired from service, I am of the view that it cannot brook any further delay. Therefore, there will be a direction to the first respondent university to consider the question of approving the order of promotion granted to the petitioner as Professor as per Ext.P5, within a period of two months from the date of receipt of a copy of this judgment. Based on the decision to be taken on Ext.P5, the benefits flowing from such decision shall be disbursed to the petitioner within a further period of two months. This writ petition is disposed of accordingly. C.T.RAVIKUMAR Judge TKS