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2022 Supreme(Ker) 404
IN THE HIGH COURT OF KERALA AT ERNAKULAM
DEVAN RAMACHANDRAN, J.
MANOJ M.V. – Petitioner
Versus
THE VICE CHANCELLOR, UNIVERSITY OF CALICUT – Respondent
W.P. (C) Nos. 34521 of 2011, 2473 of 2012
Decided On : 23-06-2022
Advocate Appeared:
For the Petitioner: P.C. SASIDHARAN.
For the Respondents: T.R. RAVI, JAWAHAR JOSE, GEORGE POONTHOTTAM, HARISH R. MENON, P.S. MURALI, K.T. SHYAMKUMAR.
Point of Law: Except in the case of appointment to the posts of Head of Department no member of a service or class of a service shall be eligible for promotion from category in which he was appointed to service unless he has satisfactorily completed his probation in that category.
Headnote:
Kerala State and Subordinate Service Rules (KS&SSR) - Rule 28(a) - Seniority list of Assistants (Senior Grade) – Promotion - Qualification - Petitioners and party respondents in these cases were all recruited as ‘Assistants’ in services of University on same day. Party respondents were Departmental Test qualified at time of their appointment, since they had already cleared Account Test (Lower); while petitioners herein acquired such qualification while they were in service. It is without contest that petitioners cleared Account Test (Lower) within their period of probation and were, thereafter, promoted as Assistants (Senior Grade) on such declaration -Admittedly, as per the University Regulations, passing of Account Test (Lower) is a qualification only for the post of Assistant and not that of promotion to that of Assistant (Higher Grade). That being so, it is highly doubtful whether rigour of Explanation to Rule 28(bbb) would apply. Further, when petitioners are relying upon Rule 28(a) of Part II KS&SSR, one cannot gather how University maintains that their benefits can only be edificed on the Explanation to Rule 28(bbb) thereof. Couort certain that these issues will require to be reconsidered, if it is found so necessary.(Para 15)
Finding of the court: It is highly doubtful whether the rigour of the Explanation to Rule 28(bbb) would apply. Further, when the petitioners are relying upon Rule 28(a) of Part II KS&SSR, one cannot gather how the University maintains that their benefits can only be edificed on Explanation to Rule 28(bbb) thereof. I am certain that these issues will require to be reconsidered, if it is found so necessary - This is crucial because, had such opportunity been given, the contentions of the petitioners could have been impelled before the competent Authority, who then could be forensically obliged to assess it from touchstone of the University Regulations, as also the KS&SSR. This not having been done, I certainly cannot grant imprimatur in W.P. - which is the same as in W.P. - Court do not propose to say anything more at this stage because revision of the Seniority List has been made by University without notice to any of the parties and suo motu, perhaps because they were under the impression that Gopinathan Unnithan (supra) compelled them to do so.
Result: Writ Petition order accordingly.
JUDGMENT :
DEVAN RAMACHANDRAN, J.
1. The petitioners and the party respondents in these cases were all recruited as ‘Assistants’ in the services of the University of Calicut (hereinafter referred to as ‘the University’ for short) on the same day. The party respondents were Departmental Test qualified at the time of their appointment, since they had already cleared the Account Test (Lower); while the petitioners herein acquired such qualification while they were in service. It is without contest that the petitioners cleared the Account Test (Lower) within their period of probation and were, thereafter, promoted as Assistants (Senior Grade) on such declaration.
2. The seniority list of Assistants (Senior Grade) showed them as seniors to the party respondents, but according to them, abruptly in December, 2011, an order was issued by the University, bearing No. Ad.A1/13068/2011, revising the seniority list, apparently being guided by the judgment of this Court in Gopinathan Unnithan vs. State of Kerala, 1991 (2) KLT 112.
3. The petitioners assert that they were not heard before the seniority list was revised through the aforementioned order - a copy of which is on record as Ext.P5 in W.P. (C) No. 34521/2011; and that, in any event of the matter, its contents are grossly contrary to the applicable statutory provisions, particularly Rule 28(a) of Part II of the Kerala State and Subordinate Service Rules (KS&SSR). They therefore, pray that the impugned order of the University be set aside and it be directed to restore their seniority in the cadre of Assistants (Senior Grade), in terms of the afore Rule.
4. I have heard Sri. P. Ravindran - learned Senior Counsel, instructed by Smt. Aparna Rajan, learned counsel appearing for the petitioners; Sri. George Poonthottam - learned Senior Counsel, instructed by Sri. Navaneeth Krishnan, as also Sri. Shyam Kumar and Sri. Jawahar Jose, learned counsel appearing for the respondents.
5. Sri. George Poonthottam - learned Senior Counsel appearing for some of the party respondents argued in support of the impugned selection list, asserting that it is irreproachable because it has taken into account the fact that, at the time when the vacancies arose, the petitioners were not Test qualified. He submitted that, therefore, going by Rule 28(ia) of Part II KS&SSR, the petitioners were not even eligible to be included in the select list for being considered for promotion as Assistants (Senior Grade) and therefore, cannot now assail the revision of the seniority list for the grounds that are impelled in these writ petitions.
6. The learned Senior Counsel, thereafter, pointed out that the petitioners cleared their Departmental Tests only in March or April, 2010 and therefore, under the rigour of Rule 28(bbb) of Part II KS&SSR, they would not be able to obtain promotion in preference to his clients, since the Explanation (1) to the said provision makes it luculent that the benefits granted therein cannot be used for the purpose of “promotion not involving change of duties against vacancies remaining unfilled for want of test qualified persons.” The learned Senior Counsel submitted that, therefore, the University has correctly assessed the situation and has issued the impugned seniority list. He then added that the rigour of Rule 28 of Part II KS&SSR would also apply because it is only after the petitioners had cleared the Departmental Test, could they have aspired for promotion, which they did not do on the date when the vacancies arose.
7. Sri. Shyam Kumar and Sri. Jawahar Jose - learned counsel appearing for the other party respondents, adopted the afore submissions of Sri. George Poonthottam, supplementing it by asserting that the University has considered all the germane aspects in its right perspective, noticing that the promotions granted to the petitioners were even before their Test results had been declared. They also, therefore, prayed that these writ petitions be dismissed.
8. In reply, Sri. P. Ravindran -
