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2022 Supreme(Online)(KER) 48706
HIGH COURT OF KERALA
Devan Ramachandran, J
SANTHOSH T – Appellant
Versus
SECRETARY, NSS COLLEGES CENTRAL COMMITTEE – Respondent
WP(C)/8767/2017
SRI.S.MUHAMMED HANEEFF, SRI.M.H.ASIF ALI, SRI.P.GOPAL, SRI.B.MURALEEDHARAN, SRI.K.T.SHYAMKUMAR, SRI.JOSHY THANNICKKAMATTAM
The judgment clarifies that downgrading positions for qualification purposes contradicts statutory provisions which allow direct recruitment under specified conditions.
Headnote:
Statutory Interpretation - Educational Appointments - Calicut University First Statutes - Statute 41(12), Statute 66 - The court interpreted provisions related to educational appointments, confirming that downgrading of posts was unnecessary and reaffirming rights to qualifications for direct recruits, influencing its decision to restore status.
Fact of the Case:
Petitioners, appointed as Laboratory Assistants (LAs) and Office Attenders (OAs) at an educational institution, contested a government order downgrading LAs to OAs due to lack of necessary qualifications. The downgrading was intended to allow LAs to obtain qualifications through testing that they could not access otherwise.
Finding of the Court:
The court determined that the downgrading of LAs was unwarranted as direct recruitment was permissible under the statutes, and reinstated LAs while affirming their right to complete required qualifications without downgrading their position. It asserted that government intervention was unnecessary and legally incorrect.
Issues: The core issues were the legality of downgrading LAs without sound justification under the statutes and the potential impact on the promotion avenues for both LAs and OAs following such downgrading.
Ratio Decidendi: The court established that statutory provisions allowing direct recruitment to LAs precluded the need for downgrading to obtain qualifications, where existing statutes provide a method for current holders to acquire necessary qualifications while retaining their appointments.
Final Decision: W.P(C)No.1459 of 2021 is allowed; W.P(C)No.23872 of 2018 is dismissed.
JUDGMENT
The petitioners in W.P(C)Nos.1459 of 2021, 8766 of 2017, 8767 of 2017 were appointed as Lab Assistants (LA) in the services of Vyasa NSS College (‘College’ for short), Vadakkancherry; while the petitioners in W.P(C)No.23872 of 2018 were appointed as Office Attenders (OA) in the same College. Both sets of appointments were made at the same time and the contentions of the petitioners in these two sets of cases have an unmistakable interplay, which persuades me to dispose of all these matters through this judgment.
2. The petitioners, who are LAs, were directly recruited, based on a notification issued by the College, which they say had full approval and permission of the competent Educational Authority. A Selection Committee was thereafter constituted, in which, a nominee of the Government was available, thus leading to rank list being drawn up, from which the LAs were appointed in terms of their placement. This is the same manner in which the OAs were also appointed and there is no contest to the same in any of these cases.
3. While so, an objection was raised by the Director of Collegiate Education - a copy of which is on record as Ext.P8 in W.P(C)No.1459 of 2021, that the LAs were appointed without having the essential qualification under Statute 41(12) of the Calicut University (Conditions of Service of Teachers, Members and Non-teaching Staff ) First Statutes, 1979 (hereinafter referred to as ‘the First Statutes’ for short). Interestingly, this led to a cascading set of events, whereby, the Government – purportedly to help the LAs - downgraded the post to that of OA for a period of one year, so as to enable them to obtain the essential qualification as per the afore provision of the “First Statutes”. This order of the Government is on record as Ext.P10 in W.P(C)No.1459 of 2021.
4. This appears to have been done by the Government because, as per Statute 41(12) of the “First Statutes”, the acquisition of ‘Attender Test’ is a prerequisite for being appointed as Laboratory Assistant, but which test is conducted by the Public Service Commission (PSC) only for those persons who are in service as OAs. The predicament which the Government, therefore, felt was that the petitioners, being directly recruited as LAs, were hence without an opportunity to pass the ‘Attender Test’ – which they could do only if they had earlier worked as OAs – and thus downgraded their posts temporarily to obtain to them such an opportunity in the lower post and then to permit upgrading of the said posts subsequently as LAs.
5. The afore set of events and orders of the Government are challenged by the LAs; while the OAs assail the order of the Government to upgrade the downgraded posts of LAs, arguing that, by doing so, their chances of promotions will be affected. Their specific case is that once the LAs were downgraded as OAs through the Government Order afore mentioned, all of them were included within a homogeneous group and therefore, that common seniority ought to have been reckoned for the purpose of further promotions to the post of LAs. They thus impugn Ext.P10 in W.P(C)No.1459 of 2021 - producing it as Ext.P6 series in W.P(C)No.23872 of 2022 - to the extent to which it orders upgrading of the downgraded post of LAs, after a period of one year.
6. Before I move forward, I must record the submissions of Sri.P.Gopal – learned counsel for the College, that subsequent to the afore events, the petitioner in W.P(C)No.1459 of 2021 had been promoted as LA through Ext.P13 order and that the proposal to promote the other LAs, who were earlier downgraded, have been made to the Government, which is still pending. He explained that this was done because Statute 41(12) of the “First Statutes” allow a person, who is promoted, to acquire the ‘Attender Test’ in one of the five successive chances, under the aegis of the PSC.
7. From the sum total of the afore narrative of the facts it is perspicuous that the LAs have challenged their “down grading” as OAs, conte
