IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 WP(C).No. 22613 of 2004(P) -------------------------- PETITIONER(S): --------------- SMT.JAYASREE N., LECTURER IN PRODUCTION CUM PLANT ENGINEERING, GOVERNMENT ENGINEERING COLLEGE,TRICHUR -9. BY ADV. SRI.S.RAMESH BABU RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, DIRECTORATE OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. SRI.HARIS NADUTHODI, LECTURER IN PRODUCTION CUM PLANT ENGINEERING, GOVERNMENT ENGINEERING COLLEGE, TRICHUR-9. 4. SRI.MANJITH KUMAR B., LECTURER IN PRODUCTION CUM PLANT ENGINEERING, GOVERNMENT ENGINEERING COLLEGE, TRICHUR-9. ADV. SRI.BABU S. NAIR FOR R3,R4 SRI.ELVIN PETER P.J. FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2008, ALONG WITH WPC NOS. 25467 OF 2005 & 17183 OF 2006 THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 22613/2004. --------------------------------------------------------------------- EXT.P1 TRUE COPY ORDER DT. 14-8-2003. EXT.P2 SPECIAL RULES DT. 15-11-1988. EXT.P3 M.TECH DEGREE CERTIFICATE. EXT.P4 ORDER DT. 28-6-2003. EXT.P5 EXPERIENCE CERTIFICATE DT. 31-3-1999. EXT.P6 REPRESENTATION DT. 12-7-2004. RESPONDENTS' EXHIBITS: --------------------------------------- EXT.R3(a) ORDER DT. 21-10-2005. EXT.R3(b) M. TECH DEGREE CERTIFICATE. EXT.R3(c) ORDER DT. 18-5-2000. EXT.R3(d) ORDER DT. 18-9-2004. EXT.R3(e) NOTIFICATION DT. 20-11-2004. EXT.R3(f) NOTIFICATION DT. 28-7-2005. EXT.R3(g) ORDER DT. 6-8-2005. EXT.R3(h) ORDER DT. 6-7-2005 IN W.P.C.NO. 37716/2004. EXT.R3(i) ORDER DT. 3-10-2005. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-= W.P (C) Nos. 22613/04, 25467/05 & 17183/06 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-==-=-=-= Dated this, the 26th November, 2008. J U D G M E N T The bone of contention in all these three writ petitions is the post of Assistant Professor - Production-cum-Plant Engineering in the Government Engineering Colleges in the State of Kerala and the petitioner in W.P(C) Nos. 22613/2004 and 25467/2005 (who are the same) and the petitioner in W.P(C) No. 17183/2006, who is the 3rd respondent in W.P(C) No. 25467/2005 are contesting for the same. The facts necessary for disposal of the writ petitions are as summarised hereunder. For convenience, I shall refer to the ranks of parties, facts and the exhibits as obtaining in W.P(C) No. 25467/2005. 2. The petitioner and respondents 3 and 4 were recruited as Lecturers in Production-cum-Plant Engineering through the Public Service Commission as per advice dated 22-5-2000. Going by the advice of the Public Service Commission, respondents 3 and 4 are senior to the petitioner. But the petitioner had already obtained post- graduate degree on 25-5-1995 and therefore at the time of entry into service itself, the petitioner already had a post-graduate degree which respondents 3 and 4 did not have. The petitioner also had provisional service for the period from 11-6-1998 to 31-3-1999. The next post available in the hierarchy is that of Assistant Professor. Originally, Ext. P2 Special Rules promulgated on 15-11-1988 governed the method of appointment and qualification prescribed for the post. As per the same, the post of Assistant Professor in Production-cum-Plant Engineering was to be filled up by promotion from the category of Lecturer in Production-cum-Plant Engineering having the qualification of post-graduate degree in the discipline with 3 years' teaching experience in Engineering Colleges. In the absence of qualified Lecturers available for such promotion, the post was to be filled up by transfer of Assistant Professor/Reader or by promotion to Lecturer W.P.C. No. 22613/04 etc. -: 2 :- from other sections of Engineering Colleges, who satisfy the qualifications prescribed or in the absence of both the above, by direct recruitment. At the time when the petitioner and respondents 3 and 4 entered service, there was no sanctioned post of Assistant Professor in the discipline of Production-cum-Plant Engineering. It appears that in view of acute shortage of teaching faculty in Production-cum-Plant Engineering Department in the Government Engineering College, Trissur, the Director of Technical Education had requested the Government to sanction one post of Professor, three posts of Assistant Professors and 5 posts of Lecturers for the uninterrupted functioning of the institution and to retain the All India Council for Technical Education approval. Taking note of the recommendation of the Director of Technical Education, the Government of Kerala issued Ext. P4 order dated 28-6-2003 sanctioning one post of Professor, two posts of Assistant Professors and two posts of Lecturers in the Production-cum-Plant Engineering Department. Although, at the time of sanction of the posts all the posts could have been filled up in accordance with Ext. P2 Special Rules, only the posts of Professor and Lecturers were filled up and the two posts of Assistant Professors created by Ext. P4 order were not filled up, which, according to the petitioner, was only to enable respondents 3 and 4 to obtain the necessary qualification of post- graduation for promotion to the said post. In the above circumstances, the petitioner filed W.P(C) No. 22613/2004 seeking a direction to the Director of Technical Education to fill up the two posts of Assistant Professors created by Ext. P4 order. In that writ petition, the petitioner obtained an interim order directing the 2nd respondent not to fill up one post of Assistant Professor in Production-cum-Plant Engineering in the Government Engineering W.P.C. No. 22613/04 etc. -: 3 :- College, Thrissur. In the meanwhile, respondents 3 and 4 obtained post-graduate degree on 14-8-2004. Subsequently, the Government issued Ext. P9 Special Rules dated 18-9-2004 amending Ext. P2 Special Rules retrospectively with effect from 24-1-2003. In the same, the qualifications and method of appointment to the post of Assistant Professor was amended as follows: “3. Assistant Appointment by open (i) Ph.D degree with the Professor selection through Ist class degree at the Staff Selection Bachelor's or Master's Committee constituted level in the appropriate by State Government branch of Engineering/ from among the Technology. Lecturers of Govern- (ii) 3 years experience in ment Engineering teaching/Industry/ Colleges in the State Research at the level of of Kerala on the basis Lecturer or equivalent. of merit. (iii) After rule 6, the following rule shall be inserted namely:- “6A. Exemption from qualification:- (1) candidates appointed as Lecturer in Engineering Colleges in the Technical Education Department on or before the 27th March, 1990, who have completed 45 years of age on the date of notification published for filling up the post of Professor, Joint Director (Engineering College Stream) and Director of Technical Education as the case may be, are exempted from acquiring Ph.D Degree for eligibility for the above posts. (2) Candidates applying for the post of Assistant Professor are exempted from possessing Ph. D Degree but they have to acquire Ph.D Degree within seven years of the appointment to the post of Assistant Professor as stipulated by the All India Council for Technical Education”.” In accordance with the amended Special Rules, the Government constituted a selection committee for selecting persons for filling up the two posts of Assistant Professors and prepared Ext. P10 rank list dated 28-7-2005 containing four names, namely, Sri. M. Parameswaran, the 3rd respondent, the 4th respondent and the W.P.C. No. 22613/04 etc. -: 4 :- petitioner in that order. Pursuant thereto, Sri. Parameswaran and the 3rd respondent were appointed as Assistant Professors by Ext. P8 order. Taking Ext. P10 rank list as a select list published under Rule 28 of the Kerala State and Subordinate Service Rules, the petitioner filed Ext. P11 petition before the Chairman of the Selection Committee challenging the rank list itself. Along with the same, the petitioner also moved a Contempt of Court Case No. 109/2005 on the ground that the appointment of the 3rd respondent constitutes violation of the interim order passed by this Court in W.P(C) No. 22613/2004. In view of the contempt case, the promotion given to the 3rd respondent was withdrawn. The 3rd respondent filed W.P(C) No. 17183/2006 against the order withdrawing his promotion. However, the petitioner has not received any reply to Ext. P11. It is under the above circumstances the petitioner filed W.P(C) No. 25467/2005 seeking the following reliefs: “a) Issue a writ of certiorari calling for the records leading up to Ext. P8 and Ext. P10 and quash the same as mala fide, arbitrary, illegal and contrary to Ext. P6 and P7 orders of this Hon'ble Court. b) declare that in the light of the decisions of this Hon'ble Court in James Vs. Chief Justice and Varghese Vs. State of Kerala -1981 KLT 458 and other decisions, the 2nd respondent is bound to fill up the posts of Assistant Professors created under Ext. P3 on the basis of the situation prevailing on the date of arisal of vacancies and not to the situation when the orders of promotion are effected. c) issue a writ of mandamus commanding the respondents 1 and 2 to promote the petitioner to the post of Assistant Professor in Production cum Plant Engineering in the Government Engineering College, Thrissur in preference to 3rd respondent. d) issue a writ of mandamus commanding the 1st and 2nd respondents not to promote 3rd respondent to the post of assistant Professor in Production cum Plant Engineering to the posts and vacancies created under Ext. P3 except after promoting the petitioner. e) issue a writ of mandamus commanding the 5th respondent to W.P.C. No. 22613/04 etc. -: 5 :- consider Ext. P11 and prepare a fresh select list strictly in accordance with Rule 28(i) and 28(iA) of the KS & SSR by preparing such list for each calender year commencing from 2003 strictly from among persons qualified and eligible at the relevant time. f) issue a writ of mandamus commanding the respondents 1 and 2 to order appointment to the post of Assistant Professor (Production cum Plant Engineering) strictly on the basis of lists prepared by the 5th respondent in terms of relief No (b) above.” 3. The contention of the petitioner is that going by Ext. P9 Special Rules, essentially, the method of appointment is by promotion from among Lecturers and therefore the procedure prescribed under Rule 28 of the KS & SSR is to be followed. According to the petitioner, since filling up of the post is subsequent to the arising of the vacancy, what is applicable is Rule 28(b) and Rule 28(b)(iA) of KS & SSR. As per Rule 28(b)(i), the select list has to be prepared for every year for the succeeding year and under Rule 28(b)(iA), when a select list is prepared subsequent to the occurrence of the vacancy, no person who was not qualified for inclusion in the select list at the time of occurrence of vacancy shall be included in the select list for appointment against that vacancy. It is also provided in that Rule that if there are no qualified persons for promotion to a post on the date of occurrence of the vacancy, the person who gets qualified first thereafter, shall be considered for promotion to that post. The petitioner contends that the vacancy in this case arose on 28-6-2003 when Ext. P4 order creating the post was issued. As on that date, among the four persons included in Ext. P10 rank list, Sri. Parameswaran and the petitioner had acquired post-graduate qualification, which is a necessary qualification for the post, which respondents 3 and 4 did not have. The petitioner had, taking into account his regular service as well as provisional service, three years experience in teaching, which is the necessary experience W.P.C. No. 22613/04 etc. -: 6 :- qualification as per the Special Rules. Therefore, along with Sri. Parameswaran, the petitioner was eligible to be included in the select list for the vacancies which arose on 28-6-2003, on which date respondents 3 and 4 did not have the post- graduate qualification, which was a necessary qualification. Therefore, respondents 3 and 4 could not have been considered for selection to the post for want of prescribed qualification. The petitioner has an alternate contention that even if the petitioner's provisional service is to be excluded, then also after Sri. Parameswaran, the petitioner became first qualified and therefore the petitioner should have been considered for appointment to the second vacancy. The petitioner therefore submits that the Selection Committee which met on 9-6-2005 to select persons for filling up the two posts two years after the occurrence of the vacancy should have prepared the select list strictly in accordance with Rules 28(b)(i) and 28(b)(iA) which has not been done in this case, since respondents 3 and 4, who were not qualified for appointment to the post as on the date of occurrence of the vacancy, had been included in the rank list. The petitioner therefore submits that after appointment of Sri. Parameswaran, the next post ought to have been filled up by appointing the petitioner and not by the 3rd respondent as has been done. The petitioner would also contend that even apart from Rules 28(b)(i) and 28(b)(iA), as regards filling up of posts otherwise than by direct recruitment, three Full Benches of this Court in James Thomas & Others v. The Chief Justice, High Court of Kerala & Others, 1977 KLT 622, Varghese & Others v. State of Kerala & Others, 1981 KLT 458 and Padmanabhan Nair v. Dy. Director, 1991 (1) KLT 337 had categorically held that promotion shall be decided with reference to time of occurrence of the vacancy and not with reference to the date of making the W.P.C. No. 22613/04 etc. -: 7 :- appointment, based on which settled position of law also, respondents 3 and 4 could not have been considered for filling up of the two posts created by Ext. P4. 4. The learned Government Pleader and the learned counsel for the 3rd respondent stoutly oppose the prayers in the writ petition. Their contention is that the amendment of the Special Rules by Ext. P9 itself was necessitated on account of the guidelines issued by the All India Council for Technical Education (AICTE for short), which is mandatorily to be followed by the State Governments in the matter of appointment to various posts in respect of engineering courses. They would submit that, as is clear from the orders of the Government on the subject, the amendment itself was introduced to satisfy the guidelines issued by the AICTE in the matter. According to them, as per those guidelines, all cadre posts have to be filled up by direct recruitment only. Their contention is that although the method of recruitment prescribed as per Ext. P9 Special Rules is not by direct recruitment, it is neither a promotion also. What is provided by Ext. P9 Rules is a direct recruitment from among qualified Lecturers of Government Engineering Colleges in the State. Therefore, Rules 28 (b)(i) and 28(b)(iA) are not applicable to the case. That is why instead of conducting the selection by a Departmental Promotion Committee, a Staff Selection Committee has been constituted as provided in Ext. P9 Special Rules, who prepared a rank list instead of a select list in the case of promotions. They would further submit that the selection was not based on the confidential reports of the candidates as in the case of promotions, but was after inviting applications and conducting an interview. The learned Government Pleader and the learned counsel for the 3rd respondent therefore strongly support Ext. P9 select list on the ground that the same being W.P.C. No. 22613/04 etc. -: 8 :- not a promotion, the date relevant for the purpose of qualifications is the last date for submitting applications and not the date of occurrence of vacancy, on which date respondents 3 and 4 did possess the prescribed qualifications. 5. I have considered the rival contentions in detail. 6. One of the contentions raised by the 3rd respondent is that as is clear from the guidelines issued by the AICTE in the matter of filling up of the posts in Technical Education Department, all cadre posts should be by open selection through open advertisement at national level and therefore the question of promotion does not arise. He relies on the notification issued by the AICTE regarding the Revised Pay Scales and Service Conditions at degree level technical institutions dated 15-3-2000 wherein in Clause 5.0 thereof, it has been stated thus: “5.0 RECRUITMENT Direct recruitment to all cadre posts should be based strictly on merit, by open selection through open advertisement at national level. However, temporary vacancies at the level of lecturers may be filled through campus selection on contract basis. These selections may be subject to the following condition: a. There will be no relaxation of the prescribed educational qualifications, experience etc. b. The person appointed temporarily may not be continued beyond a period of one year.” Relying on the first line of the clause quoted above, counsel for the 3rd respondent would submit that all cadre posts are to be filled up only through open selection through open advertisement by direct recruitment. I am unable to read such a meaning into the said clause. All what that clause states is that whenever cadre posts are to be filled up by direct recruitment, the same shall be based strictly W.P.C. No. 22613/04 etc. -: 9 :- on merit by open selection through open advertisement at national level. It can only be so also, since in no service, can there be compulsory stipulation that all cadre posts shall be filled up through direct recruitment only. Necessarily, some higher posts are to be filled up by promotion either by seniority or by selection. In fact, the guidelines themselves make provision for career advancement for teachers at all levels. Specific minimum periods of service in lower posts are also mentioned therein for consideration for appointment to higher posts. Therefore, I do not find any merit in the contention raised by counsel for the 3rd respondent that the post of Assistant Professor has to be filled up by direct recruitment only. 7. Next, I shall deal with the question as to what is contemplated by Ext. P9 in the matter of method of appointment to the post of Assistant Professor. The relevant portion of the Special Rules in the case of Assistant Professor reads thus: “Appointment by open selection through the Staff Selection Committee constituted by State Government from among the Lecturers of Government Engineering Colleges in the State of Kerala on the basis of merit.” Both the Government Pleader as well as the 3rd respondent would admit what is contemplated by the above rule is is clearly not a direct recruitment. In fact, the Government could not have made Special Rules making direct recruitment to a post through Staff Selection Committee constituted by the Government in view of the provisions of K.S & S.S.R, Rule 3 of General Rules of which stipulates that all first appointments to the service shall be made by the appointing authority on the advice of Commission in respect of posts falling within the purview of the Commission and in all other cases, by the appointing authority from a list of approved candidates prepared in the prescribed manner. Admittedly, all direct recruitments in the State service are to be made only through Public Service Commission. W.P.C. No. 22613/04 etc. -: 10 :- 8. The next question would be whether this can be construed as a direct selection from among lecturers of Government Engineering Colleges. I am of opinion that it cannot be. The Rules relating to appointment in Kerala Government service does not contemplate a direct selection from among the persons already in service exclusively. Under the K.S and S.S.R, appointments are of three types. (1) Direct recruitment, (2) appointment by transfer and (3) appointment by promotion. Rule 2(12) defines as to when a person is said to be “recruited direct”. It reads thus: “(12) A candidate is said to be “recruited direct” to a service, class, category or post when, in case the appointment has to be done in consultation with the Commission, on the date of notification by the Commission inviting applications for the recruitment,and in any other case, at the time of appointment. (i) he is not in the service of the Government of India or the Government of a State; or (ii) being in the service of the Government of India or the Government of a State, he satisfies all the qualifications (including age) and other conditions prescribed for such recruitment to that service, class, category or post and is permitted to apply for such recruitment by the competent authority; or (iii) he holds a post, the conditions of service of the holder of which have been declared to be matters not suitable for regulation by rule.” Rule 2(13) defines as to when a person is said to be “recruited by transfer.” The said rule reads thus: “(13) A candidate is said to be “recruited by transfer” to a service. (i) if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service; and (ii) if at the time of his first appointment thereto, (a) he is either a full member or an approved probationer in W.P.C. No. 22613/04 etc. -: 11 :- any other service, the rules for which prescribe a period of probation for members thereof: Provided that where the Special Rules for a service provide for recruitment by transfer to any class or category thereof from any specified class or category of another service, a candidate shall, unless the recruitment is made from a post carrying an identical scale of pay, be a full member or an approved probationer in the class or category so specified; or (b) he is the holder of a post in any other service for which no probation has been prescribed, and has put in satisfactory service in that post for a period of two years on duty within a continuous period of three years.” Rule 2(11) defines “promotion” thus: ““Promotion” means the appointment of a member of any category or grade of a service or a class of service to a higher category or grade of such service or class.” Going by Rule 2(12) a person who aspires for direct recruitment must not at the time of appointment be in the service of the State Government unless he is permitted to apply for recruitment to the post by the competent authority. Nobody has a case that what is contemplated by the Special 'rules is a recruitment by transfer. Clearly, therefore, the first and second are excluded in this case admittedly. The K.S & S.S.R contemplate only one other method of recruitment, namely, 'by promotion'. Therefore, the only other way the method of appointment prescribed in Ext. P9 for the post of Assistant Professor can be construed is as a promotion from among lecturers by selection. Although the clause is couched in words which may give the impression that the same contemplates direct recruitment, since the same is a promotion, naturally the General Rules in the KS & SSR become directly applicable to the selection contemplated by the Rules, in which case Rules 28(b)(i) and 28(b)(iA) W.P.C. No. 22613/04 etc. -: 12 :- have to be strictly complied with in such selection. Evidently, the selection of the 3rd and 4th respondents and appointment of the 3rd respondent pursuant to the selection, which was later cancelled in view of the contempt case are not in accordance with Rule 28(b)(iA) in so far as on the date of occurrence of vacancy, they did not possess the prescribed qualification of post-graduation. Although for that reason Ext. P10 rank list as a whole has to be quashed, in so far as there is no dispute raised by anybody regarding eligibility of Sri. M. Parameswaran for promotion, who is admittedly qualified and entitled to be promoted as Assistant Professor, I am not interfering with his selection and appointment. As far as the appointment to the second vacancy which arose on 28-6-2003 is concerned, I am of opinion that the selection has to be re-done strictly in accordance with Rule 28 of the K.S and S.S.R. Accordingly, Exts.P 8 and P10 in respect of the petitioner and respondents 3 and 4 are quashed. The 2nd respondent is directed to see that a fresh select list is prepared