IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 WP(C).No. 33042 of 2007(H) -------------------------------------- PETITIONER(S): --------------- 1. FRANKLIN ROBERT JOHN, LECTURER, SCHOOL OF ENGINEERING, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-682 022. 2. USHA NAIR, LECTURER, SCHOOL OF ENGINEERING, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-682 022. 3. NARASIMHA D.S., LECTURER, SCHOOL OF ENGINEERING, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-682 022. 4. V.DAMODARAN, LECTURER, SCHOOL OF ENGINEERING, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-682 022. 5. JACOB ELIAS, LECTURER, SCHOOL OF ENGINEERING, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-682 022. 6. ROY M.THOMAS, LECTURER, SCHOOL OF ENGINEERING, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-682 022. 7. THOMAS.T., LECTURER, COCHIN UNIVERSITY COLLEGE OF ENGINEERING, KUTTANADU CAMPUS, CUSAT, ALAPPUZHA-688 504. 8. S.RAMDAS, LECTURER, SCHOOL OF ENGINEERING, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-682 022. 9. ABDU RAHIMAN.K.U., LECTURER,(SR.SCALE), SCHOOL OF ENGINEERING, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, KOCHI-682 022. BY ADV. SRI.RAJU JOSEPH WP(C).No. 33042 of 2007(H) RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY, COCHIN UNIVERSITY P.O., KOCHI-682 022, REPRESENTED BY ITS REGISTRAR. 3. THE UNIVERSITY SYNDICATE, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O., KOCHI-682 022. 4. THE REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O., KOCHI-682 022. GOVERNMENT PLEADER SRI.T.T.MOHAMOOD FOR R1 ADV. SRI.S.P.ARAVINDAKSHAN PILLAI,SC,COCHI U FOR R2 TO R4 DR.K.P.SATHEESAN, SC COCHIN UNIVERSITY FOR R2 TO R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33042 of 2007(H) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GOVT. ORDER NO.G.O.(P)68/2000/H.EDN. DATED 18/05/2000. EXT.P2: COPY OF THE LETTER ISSUED BY THE AICTE DATED 10/09/2003. EXT.P3: COPY OF THE RELEVANT PORTION OF THE GOVERNMENT ORDER NO.G.O.(P) 171/99/H.EDN. DATED 21/12/1999. EXT.P4: COPY OF THE REPRESENTATION SUBMITTED BEFORE HE 2ND RESPONDENT DATED 03/02/2001. EXT.P5: COPY OF THE LETTER FROM THE REGISTRAR TO THE PRINCIPAL DATED 24/05/2003. EXT.P6: COPY OF THE LETTER FROM THE REGISTRAR TO THE PRINCIPAL SCHOOL OF ENGINEERING DATED 30/11/2004. EXT.P7: COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE SUB COMMITTEE DATED 09/12/2004. EXT.P8: COPY OF THE RELEVANT PORTION OF THE SUB COMMITTEE REPORT. EXT.P9: COPY OF THE LETTER FROM REGISTRAR DATED 20/10/2006. EXT.P10: COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE UNIVERSITY DATED 13/07/2007. EXT.P11: COPY OF THE LETTER FROM THE UNIVERSITY ADDRESSED TO THE 1ST PETITIONER DATED 10/08/2007. EXT.P12: COPY OF THE AGENDA NOTE. EXT.P13: COPY OF THE ORDER IN IA NO.16248 OF 2007 IN W.P.(C). NO. 33239/07 DATED 11/12/2007. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE LETTER NO.F.37-104/95-TS.II DATED 09/10/1998 ISSUED BY THE GOVERNMENT OF INDIA MINISTRY OF HUMAN RESOURCE DEVELOPMENT. EXT.R2(b): COPY OF THE LETTER D.O.NO.REG/TEACHERS/2006 DATED 30/08/2006 ISSUED BY THE UNIVERSITY TO THE DIRECTOR, DIRECTORATE OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. EXT.R2(c): COPY OF THE REPLY AS PER LETTER NO.EA3/9812/06 DATED 31/08/2006 GIVEN BY THE DIRECTOR OF TECHNICAL EDUCATION TO THE UNIVERSITY. //TRUE COPY// P.A. TO JUDGE Rs/ ANTONY DOMINIC, J. -------------------------- W.P.(C) No.33042 OF 2007 ------------------------------------- Dated this the day of November 2008 J U D G M E N T The prayer in this writ petition is for quashing Exs.P1 & P8 to the extent it excludes the past service of the petitioners in the institutions approved by the AICTE prior to their appointment under the 2nd respondent for placing them in career advancement scheme, as it is illegal, unjust and discriminatory and ultravires of Article 14 of the Constitution of India. The petitioners pray that the respondents be directed to reckon their past service under the AICTE approved institutions outside the State of Kerala for placing them in the cadre Lecture (Senior Scale). 2. The petitioners were appointed as lecturers in various disciplines of Engineering under the 2nd respondent during the period from 1999 to 2002. Prior to their appointment, they had worked in different Colleges of WP(c).No.33042/07 2 Engineering out side the State, which are affiliated to the AICTE. Aggrieved by Clause 3.11 of Ext.P1 to the extent it excludes outside State experience for considering their eligibility for placement in the senior / selection grade, this writ petition has been filed. 3. It would appear from the pleadings that the AICTE issued a notification dated 15/03/2000 introducing Career Advancement Scheme. Clause 7 of the said notification is as follows :- “(a) Minimum length of service for eligibility to move into the grade of Lecturer (Senior Scale) would be four years for those with Ph.D., five years for others with M.Phil/ME/M.Tech and six years for others as a Lecturer, and for eligibility to move into the grade of Lecturer (Selection Grade)/Assistant Professor, the minimum length of services Lecturer (Senior Scale) shall be uniformly five years. (b) For movement into grades of Assistant Professor and above, the minimum eligibility criterion would be Ph.D. Those teachers without Ph.D can go upto the level of Lecturer (Selection Grade). WP(c).No.33042/07 3 (c) An Assistant Professor with a minimum of eight years of service will be eligible for consideration for appointment as Professor. (d) For every upward movement, a selection process would be evolved, for which appropriate guidelines would be laid down by the AICTE in consultation with the Government of India.” 4. Based on the AICTE notification dated 15/03/2000, the Government of Kerala issued Ext.P1 notification dated 18/05/2000 introducing revision of scales of pay of Teachers in Engineering Colleges. Clause 3.11 of Ext.P1 provides for Career Advancement scheme. In so far as this writ petition is concerned, the following sub clauses of Clause 3.11 being relevant, are extracted below for reference. “The following past service will be considered for placing the teachers in Senior / Selection Grade. 1. Period of service as Lecturer / Lecturer (Senior Grade) in AICTE approved Engineering Colleges in the State. 2. Period of service as Lecturer / Asst. Lecturer in Polytechnics in the State after acquiring a degree in Engineering. WP(c).No.33042/07 4 3. Experience in a Scientific or Industrial Organisation under Govt. of Kerala or Govt. of India service and State Govt. service subject to a maximum of three years, provided the post is comparable (the minimum qualification for the post as same as that of Lecturer in Engineering Colleges). The provisional / contract service of teachers in Engineering Colleges / Polytechnic will also be counted as qualifying service.” 5. According to the University, various representations were received against exclusion of outside the State service, and the University by Ext.R2(b) took up the matter with the Director of Technical Education, who by Ext.R2(c) clarified the position reiterating Clause 3.11. It is also stated that the University had appointed a Sub Committee of the Syndicate which submitted a report that the Committee feels that the University need not make any change in the system of Career Advancement and that the existing scheme be continued till further orders come from the State Government. The Syndicate of the University considered the report and issued Ext.P8 order dated 11/10/2006 approving the report. WP(c).No.33042/07 5 6. In the meanwhile, the petitioners represented against Clause 3.11 of Ext.P1 and they were praying that their outside service should also be reckoned for placement in the senior scale. It is stated that in reply to their representations, Ext.P5 was given to the 1st petitioner stating that his previous service outside the State cannot be reckoned as per Government Order, and that his request for placement in the senior scale can be considered only after completing the required period of service as specified in the University order. It is in this background, the writ petition has been filed mainly contending that Clause 3.11 of Ext.P1 to the extent it excludes outside service is discriminatory and is offending Article 14 of the Constitution of India. 7. The learned counsel for the petitioners mainly contends on the validity of Clause 3.11 of Ext.P1. According to him, the Government of Kerala having decided to reckon past service for placing teachers in senior / selection grade, without any valid or justifiable reason decided to exclude WP(c).No.33042/07 6 previous service outside the State. It is also contended that all the petitioners had rendered service in the reputed Engineering Colleges and in Universities outside the State and that these colleges are all approved by the AICTE and are rendering, if not better, equal qualitative services, and therefore there is absolutely no reason to exclude their previous service. It is further contended that the Government have not stated any reason for sustaining the classification it has made which lacks any valid reason. 8. The learned counsel draws my attention to the preamble to the AICTE Act, 1987 and would also contend that the classification now made is against the very object and functions of the AICTE, which includes co-ordination for the development of technical education in the country at all levels, by virtue of Section 10D thereof. Yet another contention that is raised is that by Ext.P2, when clarification was sought, the AICTE considered the matter and decided to follow the same Rules and Regulations, which are being WP(c).No.33042/07 7 followed by the UGC in similar type of cases. Referring to Ext.P3 UGC scheme, it is contended that vide Clause 7 thereof, previous service in a University, College etc. either inside or outside the State is reckoned by the UGC for placing the lecturers in senior scale / selection grade subject to the conditions mentioned thereon. It is contended that the AICTE having chosen to follow the UGC scheme and as the UGC does not make any distinction between the inside and outside the State service, the 1st respondent committed an illegality by excluding outside service while implementing the AICTE scheme. 9. A counter affidavit has been filed by the first respondent. In that counter affidavit, they have stated that the AICTE notification on revised pay scale and service conditions in Degree Level Technical Institutions, dated 15.3.2000, do not prescribe any norms for counting past service for Career Advancement. It is stated that, availing of the discretion that is conferred on the State, the State WP(c).No.33042/07 8 unilaterally introduced the provisions in Ext.P1 for reckoning previous service as Lecturer/Lecturer(Senior Grade) in AICTE approved Engineering Colleges in the State. Therefore, according to the first respondent, it was an additional benefit that was granted by them. The thrust of the counter affidavit is that the eligibility of the petitioner for the benefit of Ext.P1 depends upon the conditions of Ext.P1 and that, in terms of the conditions incorporated in Ext.P1, service rendered outside the State is not liable to be reckoned. 10. Although, in the writ petition, petitioners have challenged the classification made in Ext.P1 and the exclusion of outside the State prior service vide clause (1) of para 3.11 of Ext.P1, the first respondent has not offered any justification for such classification. However, when the case was taken up for hearing, the learned Government Pleader contended that it was taking into account the standard of education prevailing elsewhere in the country WP(c).No.33042/07 9 that the State decided to reckon only the previous service rendered within the state. It was also argued that financial limitations were one of the reasons for restricting the benefit of previous service, to what was rendered within the State. The learned Government Pleader also placed reliance on the Apex Court judgment in State of Madhyapradesh V. Pramod Bharatiya and Ors.(1993(1) SCC 539) to sustain clause (1) of para 3.11, impugned in this writ petition. 11. When the matter was taken up today, counsel for the petitioner submits that one smt. Mythili, a Lecturer under the respondent University has been given the benefit of the research experience in IIT Chennai and that on that basis the benefit of Ext.P1 was extended to her. In the absence of any pleading to support this factual assertion, I do not intend to rest my conclusions on the same. 12. Obviously, the effect of clause (1) of paragraph 3.11 of Ext.P1 is that, period of service as Lecturer in AICTE WP(c).No.33042/07 10 approved Engineering Colleges in the State alone will be given credit for placing teachers in the Senior/Selection Grade. In so far as the petitioners are concerned, prior to their appointment into the service of the 2nd respondent, they had rendered service for varying periods, outside the State and that too in AICTE approved Engineering Colleges and Universities. Therefore, they were also Lecturers outside the State in AICTE approved Engineering Colleges and but for the restriction in 3.11(1) of Ext.P1, this period would have been reckoned. By confining the benefit of past service only to Lecturers in AICTE approved Engineering Colleges in the State what the first respondent has done is to classify Lecturers in the AICTE approved Engineering Colleges into two classes namely those who have rendered service within the State and those who have rendered service outside the State. 13. Under Article 14 of the Constitution of India, although classification is permissible what is impermissible WP(c).No.33042/07 11 is discrimination. In this case, a classification has been made and the Lecturers like the petitioners who had rendered service outside the State have been denied the benefit of counting their past service and in that sense, they have been discriminated. May be it was possible for the State to justify the same either on the basis of the quality of the service that they rendered outside the State or on the basis of the qualification of the lecturers or on the basis of financial constraints or on such other valid criteria. By the averments made in the writ petition, petitioners have prima facie shown that they are equally placed like the Lecturers rendering service in the AICTE approved Engineering colleges in the State. Once that initial burden is discharged, the burden of justifying the classification is on the State. In my view, in the counter affidavit filed by the respondents, the State has not offered any justification for excluding the service rendered by the Lecturers in AICTE approved Engineering Colleges outside the State. What is the nexus WP(c).No.33042/07 12 between the classification and the object that is sought to be achieved is not forthcoming in the pleadings of the State. If that be so, I must hold that, the State has failed in justifying the classification that they have made in clause (1) of para 3.11 of Ext.P1. If that be so, the necessary conclusion that is possible is that clause(1) of para 3.11 of Ext.P1 excluding the previous service rendered by the Petitioners in the AICTE approved Engineering Colleges outside the State is a discriminatory provision. Accordingly, clause(1) to the extent it restricts counting of previous service of Lecturers in AICTE approved Engineering Colleges within the State will stand set aside. As a necessary consequence, the benefits in terms of the provision shall be extended to the petitioners without further delay in the matter. Writ Petition is disposed of as above. vi ANTONY DOMINIC JUDGE WP(c).No.33042/07 13 vi.