IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 21ST MAY 2008 / 31ST VAISAKHA 1930 OP.No. 9400 of 2000(R) ---------------------- PETITIONER: ------------ P. RADHAKRISHNAN NAIR, HEAD OF SECTION, COMPUTER APPLICATION & BUSINESS MANAGEMENT (CA & BM), RESIDENTIAL WOMEN'S POLYTECHNIC, PAYYANNUR, KANNUR DISTRICT. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR SRI.V.VARGHESE RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 3. V.K. VISWAMBHARAN, PRINCIPAL, RESIDENTIAL WOMEN'S POLYTECHNIC, PAYYANNUR, KANNUR DISTRICT. BY GOVERNMENT PLEADER SMT. M.R. SREELATHA FOR R1,2 SRI.K.S.BABU FOR R3 SMT.N.SUDHA FOR R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 24/03/2008, THE COURT ON 21/05/2008 DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 9400/2000. -------------------------------------------------------------- EXT.P1 TRUE COPY OF APPLICATION DT. 6-7-1992. EXT.P2 ORDER DT. 29-8-1992. EXT.P3 ORDER DT. 31-5-1993. EXT.P4 ORDER DT. 14-3-1996. EXT.P5 ORDER DT. 23-5-1998. EXT.P6 REPRESENTATION DT. 9-10-1998. EXT.P7 ORDER DT. 29-9-1998. EXT.P8 REPRESENTATION DT. 21-8-1998. EXT.P9 ORDER DT. 10-8-1999. EXT.P10 RELEVANT EXRACT OF ORDER DT. 22-2-2000. EXT.P11 RELEVANT EXTRACT OF ORDER DT. 10-7-1991. EXT.P12 JUDGMENT IN O.P.NO. 21809/2000. EXT.P13 ORDER DT. 18-9-2001. EXT.P14 RELEVANT EXTRACT OF AICTE NORMS. EXT.P15 ORDER DT. 25-4-2000. EXT.P16 ORDER DT. 13-11-2001. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R2(a) ORDER ESTABLISHING ABOVE POLYTECHNICS. EXT.R2(b) ORDER DT. 10-7-1991. EXT.R2(c) ORDER DT. 20-6-1995. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 9400 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st May, 2008. J U D G M E N T The petitioner, who is working as Head of Section in Computer Application and Business Management in Residential Women's Polytechnic, Payyannur, has approached this Court with this original petition, aggrieved by the refusal on the part of the respondents to promote him as Principal. Facts necessary for disposal of the original petition may be summarised as under. 2. The educational qualifications of the petitioner are, (1) B.A. Degree, (2) M.A. Degree in Public Administration from Andhra University and (3) M.B.A. Degree with 66% marks from the Indira Gandhi National Open University, New Delhi. He joined service of the Government of Kerala as Assistant Grade II in the Administrative Secretariat on 8-11-1989. 3. The Government, under its World Bank Assisted Technical Education Project, established a Residential Women's Polytechnic at Payyannur with four courses, namely, (1) Electronics and Communication Engineering, (2) Computer Engineering, (3) Electronics and Instrumentation and (4) Computer Application and Business Management, by G.O(MS) 182/90/H. Edn. dated 18-7-1990. By G.O (MS) No. 131/91/H. Edn. dated 10-7-1991, Teaching and Technical supporting staff and Non-teaching posts were sanctioned for the said Women's Polytechnic, which included four posts of Head of Section for each of the said four courses. In that Government Order , it was stipulated that the Teaching and Technical Supporting staff will be those who have the prescribed qualification as per the All India Council for Technical Education (AICTE) guidelines. The post of Principal was not mentioned in the Government Orders. 4. As per the Special Rules for Kerala Technical Education Service, there are Special Rules for two types of Polytechnics, O.P. No. 9400/2000. -: 2 :- namely, (1) Class C – Polytechnics and (2) Class F – Women's Polytechnics. In the Special Rules for Class C - Polytechnics, the post of Head of Section was introduced by G.O(P) No. 261/89/H. Edn. dated 19-12-19809. But, in the Special Rules, there is no post of Head of Section in Class F - Women's Polytechnics even now. In Class C - Polytechnics, the post of Head of Section was to be filled up by promotion from the category of Lecturer in Polytechnics/Post Diploma Lecturers/Superintendents of Technical High Schools/Workshop Superintendents of Polytechnics/Instructor Grade I in Engineering Colleges and in the absence of the above, by direct recruitment. The qualifications prescribed for the post was a Degree in the appropriate branch of Engineering or Technology or any other qualifications recognised by Government as equivalent thereto with not less than 60% marks in the qualifying examinations (In the case of promotions, 60% marks will not be insisted upon) and eight years experience in Engineering profession of which at least three years should be teaching experience as lecturer not below the Diploma level in recognised/approved institutions. 5. In the newly created Women's Polytechnic, the post of Head of Section (CA & BM) remained vacant for quite some time after its creation. The petitioner put in Ext. P1 application for appointment to the post by transfer, since, according to him, he possessed the qualifications prescribed for the post as per AICTE guidelines, which, according to the petitioner, was post-graduate degree in the related discipline with minimum 60% marks. The petitioner represented that since he had MBA degree with 66% marks, he was qualified for appointment to the post. The Government considered his application in consultation with the Director of Technical Education and the Project Director of World Bank Assisted Technical Education Project and finding that the subjects prescribed for the diploma course 'Office O.P. No. 9400/2000. -: 3 :- Management and Computer Applications' are covered in the M.B.A course and therefore the qualifications possessed by the petitioner are sufficient qualifications for the post, appointed the petitioner to the post of Head of Section in Office Management and Computer Applications in the Residential Women's Polytechnic, Payyannur, provisionally by Ext. P2 order. (Although the course sanctioned was 'Computer Application and Business Management' in the prospectus, the course was changed as 'Office Management and Computer Applications', which was again changed as 'Computer Application and Business Management by Ext. P3 order dated 31-5-1993). By Ext. P4 order dated 14-3-1996, the Government regularised the services of the petitioner as Head of Section. Satisfactory completion of probation of the petitioner was also declared by Ext. P5 order dated 23-5-1998. 6. While so, when the post of Principal of the Polytechnic fell vacant, a person from a Class C - Polytechnic was transferred and posted to that post. When he was transferred to another Class C- Polytechnic as Principal, the 3rd respondent herein, a Head of Section in a Class C - Polytechnic was promoted and posted as Principal at the Residential Women's Polytechnic, Payyanur by Ext. P10 order. It is under the above circumstances, the petitioner has filed this original petition seeking the following reliefs: “i. Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext. P10 and quash the same to the extent it is objected to in this Original Petition. ii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 and 2 to promote the petitioner to the post of Principal in Class F Residential Women's Polytechnic, Payyannur with effect from 29.9.1998 as if Ext. P10 order were never issued. iii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent to dispose of Exts. P6 and P8 representations on merits as expeditiously as possible at any rate within the time limit to be fixed by this Hon'ble Court. O.P. No. 9400/2000. -: 4 :- iv. declare that the petitioner is eligible to be promoted as Principal in Class F Residential Women's Polytechnic, Payyannur.” 7. Two counter affidavits have been filed in this case. One by the first respondent and the other by the second respondent. The case in the counter affidavits is that the Residential Women's Polytechnic is a class C - Polytechnic and the petitioner does not possess the qualifications prescribed for the post of Principal in Class C- Polytechnics, which includes a degree in Engineering, since he possesses only an M.B.A degree. 8. In the reply affidavit, the petitioner disputes the contention of respondents 1 and 2 that the Residential Women's Polytechnic, Payyannur is a Class C - Polytechnic. He would submit that going by the Special Rules, the Residential Women's Polytechnic can only come under Class F - Women's Polytechnic and not under Class C- Polytechnic, in which case, the petitioner is entitled for promotion as Principal of that Polytechnic. 9. I have considered the rival contentions in detail. 10. At the outset, I am of opinion that the Government has sadly failed in properly classifying the newly established Women's Polytechnic properly under the Special Rules and in framing appropriate Special Rules for the newly created posts. As per the Special Rules, Polytechnics are classified as Class C - Polytechnics and Class F - Women's Polytechnics. There is nothing in the orders establishing the Residential Women's Polytechnic, Payyannur as to under which category it falls. Going by the nomenclature, it should be classified under Class F - Women's Polytechnic. But, the posts sanctioned are those prescribed for Class C - Polytechnics in the Special Rules, going by the presence of the post Head of Section among the same, which post is absent in Class F - Women's Polytechnics. But, it must be noted that the Special Rules do not O.P. No. 9400/2000. -: 5 :- contemplate a non-engineering post like Head of Section in the subject, Computer Application and Business Management. No Special Rules are prescribed for the post of Head of Section in Computer Application and Business Management, which is not an Engineering discipline. In the Special Rules for Class C-Polytechnics, the post of Head of Section is to be filled up by promotion from the category of Lecturer in Polytechnics/Post Diploma Lecturers/Superintendent of Technical High Schools/Workshop Superintendents of Polytechnics/Instructor Grade I in Engineering Colleges or in the absence of qualified hands under the above categories by direct recruitment. By Ext. R2(b) Government Order, posts of Head of Sections are sanctioned in each of the four branches or subjects, but no corresponding post of lecturers are sanctioned for the subjects from which promotion can be made to the posts. The post of lecturer is sanctioned only for Mathematics, Physics, Chemistry and English. The method of recruitment and qualifications are also not prescribed for the posts in the Government Order. At the same time, the Special Rules do not contemplate the posts of Head of Section in Computer Applications and Business Management and Lecturer in Mathematics, Chemistry, Physics and English. Therefore, the state of affairs in the Residential Women's Polytechnic, Payyannur can certainly be termed as nebulous, in the absence of Special Rules for the said posts. Respondents 1 and 2 have no case that the Residential Women's Polytechnic, Payyannur is not an institution coming under the Kerala Technical Education Service in which case, the same has to come under either Class C - Polytechnics or Class F - Women's Polytechnic. Then the posts sanctioned in the institution should have been those included in the Special Rules applicable. When the Government createed new posts, Special Rules ought to have been amended to include those posts also. The minimum the Government should have O.P. No. 9400/2000. -: 6 :- done was to prescribe the method of recruitment and qualifications for the newly created posts pending amendment of the Special Rules. In this case, the Government has done neither, which has led to this nebulous state of affairs. This state of affairs cannot continue further in the interest of the institution. 11. In the Special Rules, the method of appointment of Principal in Class C - Polytechnics is as follows: “Principal 1. By promotion from the category of Head of Section in Polytechnics: or 2. In the absence of qualified candidates under item 1 above, by promotion of Lecturers of Polytechnics, Superintendents of Technical High Schools and corresponding cadres; or 3. In the absence of qualified candidates under items 1 and 2 above, by direct recruitment.” The qualifications prescribed for the post are as follows: “C 1 Principal Promotion/ 1. (a) A Degree in any branch Direct recruit- of Engineering/Techno- ment. logy with not less than 60% marks in the qualifying examination for the degree or any other qualification recognised by Government as equivalent thereto. (b) In the case of promotions from the feeder category 60% marks will not be insisted upon. 2. Ten years professional experience of which at least three years should be teaching experience as Lecturer not below the Diploma level in O.P. No. 9400/2000. -: 7 :- approved/recognised institutions. Note:- (a) Diploma in the appropriate branch of Engineering or Technology obtained after undergoing a regular course of study for not less than 3 years with 60% marks in the qualifying examination and a pass in Sections A and B of AMIE will be considered as equivalent to a degree in Engineering. (b) In the case of first or second class Post Graduate Degree holders in Engineering/Techno- logy, the prescribed 60% marks in the concerned branch for the basic degree will not be insisted upon.” Going by the recruitment rules, the petitioner is clearly not qualified for promotion to the post of Principal in Class C - Polytechnics. 12. The corresponding rules in Class F- Women's Polytechnics are as follows: “Principal (1) Promotion from the category of qualified Lecturers in any of the subjects in the respective Women's Polytechnics. (2) In the absence of item (1) above, promotion from the next lower grade in the Women's Polytechnics, qualified in the respective subjects. (3) In the absence of items (1) and (2) above, by transfer from any other service. (4) In the absence of items (1) to (3) above, by direct recruitment. O.P. No. 9400/2000. -: 8 :- Note:- The incumbent to be considered eligible for promotion must be qualified in any of the subjects taught in the respective Women's Polytechnics. F 1 Principal Any method (1) (a) a Degree in any branch of Engineering taught in the Women's Polytechnics. or (b) Diploma in any branch of Engineering taught in the Women's Polytechnics with 60% marks. or (c) Degree in Physics with specialisation in Electronics. or (d) Any University Degree and recognised Diploma in Commerce or Co-operation. (2) A total experience of 8 years for Degree holders and 15 years for Diploma holders of which at least 5 years shall be teaching.” Going by these rules also, the petitioner is not qualified since there is no post of Head of Section in the Rules and the post of Head of Section is not a feeder category for promotion to the post of Principal. Further, the petitioner does not possess the qualification of recognised diploma in Commerce or Co-operation, which is an essential qualification for the post of Principal along with any University degree, which alone is the prescribed qualifications the petitioner possesses. 13. Therefore, going by the Special Rules, the petitioner is not qualified for promotion to the post of Principal, whether the Residential Women's Polytechnic, Payyannur is a Class C - Polytechnic or a Class O.P. No. 9400/2000. -: 9 :- F- Women's Polytechnic (which itself is not yet clear). But, this situation arises because of lack of application of mind by the Government in the matter of stipulating classification for the newly established Women's Polytechnic and prescribing method of appointment and qualifications for the newly created posts. When a new branch of Computer Applications and Business Management is sanctioned for a newly established polytechnic and a post of Head of Section is created for that branch, then it was the duty of the Government to prescribe the method of appointment and qualifications for the post, especially when the Special Rules contemplated only posts in relation to Engineering/Technology related subjects. What the Government had done in Ext. R2(b) is to stipulate that the faculty would be those who have the prescribed qualifications as per All India Council for Technical Education Guidelines. In Ext. P2, by which the Government have appointed the petitioner as Head of Section, it is stated thus: “As per Government Order read as first paper above, among other things a post of Head of Section on Rs.1830-3425 in Computer Application and Business Management Department, was created in Residential Women's Polytechnic, Payyannur. Subsequently as per the Government Order read as second paper above the name of the above course was re-designated as 'Office Management and Computer Applications'. Therefore the Government now order that the post of Head of Section in Computer Application and Business Management created as per the Government Order read as first paper above will stand modified as Head of Section in Office Management and Computer Applications. The Government Order read as paper one above stand modified to this extent. 2. The post of Head of Section is lying vacant and the Special Rules for this have not been prescribed. Sri. P. Radhakrishnan Nair in his representation read as third paper above has requested Government to appoint him as Head of Section in Office Management and Computer Application as he holds M.B.A. Degree with 66% marks which is sufficient for the post. 3. The Director of Technical Education and the Project Director, World Bank Assisted Technician Education Project have O.P. No. 9400/2000. -: 10 :- forwarded their reports to Government. Government after careful examination of the case find that the subjects prescribed for the diploma course 'Office Management and Computer Applications' are covered in the M.B.A. Course and it is sufficient qualification for the post. Government accept the views of the Director of Technical Education and Project Director, World Bank Assisted Technician Education Project and pending finalisation of Special Rules, are pleased to appoint Sri. P. Radhakrishnan Nair, Assistant, Administrative Secretariat (Ram Nivas, T.C./24/1989, Thycaud, Thiruvananthapuram) as Head of Section on Rs.1830-3425 in Office Management and Computer Applications in the residential Women's Polytechnic, Payyannur temporarily under Rule 9(a)(i) of the General Rules in Kerala State and Subordinate Service Rules.” Therefore, clearly, according to the Government, the petitioner is qualified to hold the post of Head of Section (Computer Application and Business Management). When the post of Head of Section is a feeder category for promotion to the post of Principal, it is unjust to exclude the post of Head of Section (CA & BM) from the feeder category for want of degree in Engineering/Technology, which is not a necessary qualification for that post. When a post is included as a feeder category for a promotion post without reference to the discipline to which that post relates, the recruitment rules cannot ignore the same post in a particular branch in the feeder category without justifying the exclusion on the basis of duties and functions attached to the post, while prescribing the qualifications required for the promotion post. 14. Therefore, I am of opinion that the Government should frame appropriate Special Rules regarding the classification of the Residential Women's Polytechnic, Payyannur (as to whether it is a Class C - Polytechnic or a Class F - Women's Polytechnic or a third new category), method of appointment and qualifications for the posts created as per Ext. R2(b), fixation of feeder categories and qualifications for the post of Principal taking into account the qualification required for the new post created by Ext. R2(b), namely, Head of Section (Computer Application and Business Administration) also which is not an Engineering/Technology related subject. While O.P. No. 9400/2000. -: 11 :- doing so, the Government shall consider the guidelines issued by All India Council for Technical Education on the subject. (This is in view of the contention of the petitioner that as per Ext. P14 guidelines of AICTE, the qualifications prescribed for the post of Principal is the same as that of Head of Department and the Government themselves have in Ext. R2(b) stipulated that the faculty in the Residential Women's Polytechnic, Payyannur would be those who have the prescribed qualifications as per the AICTE guidelines). The 1st respondent shall apply its mind to every aspect of the matter and frame appropriate Special Rules, by amending the existing Rules in the light of the observations made above. This shall be done within four months from the date of receipt of a copy of this judgment. Till Rules are so framed, the vacancy of Principal, arising in the meanwhile in the Residential Women's Polytechnic, Payyannur, shall not be filled up. After framing Special Rules, the vacancy shall be filled up by appointing a qualified person as per the Special Rules so framed. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/ O.P. No. 9400/2000. -: 12 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 9400 of 2000 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 21st May, 2008.