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2021 Supreme(Online)(KER) 10797
HIGH COURT OF KERALA
NOBY MARY CHACKO, – Appellant
Versus
STATE OF KERALA, – Respondent
WP(C)/20756/2019
GOVERNMENT PLEADER SRI.BABY ISSAC ILLICKAL SRI.ISAAC KURUVILLA ILLIKAL GP SRI JIMMY GEORGE, SRI SURIN GEORGE IYPE SC MG UNIVERSITY
Proper application of promotion rules based on seniority and qualifications is essential to validate employment promotions.
Headnote:
Promotion - Employment - Kerala State and Subordinate Service Rules 1958; Mahatma Gandhi University Statutes 1997 - The court examined the procedures for promotion under KSSR and MG Unversity Statutes, determining the conflicting applications of rules and their implications on a promotion case, emphasizing the importance of seniority and qualification.
Fact of the Case:
The case discusses the promotion of the deceased individual from LD Typist to LD Clerk amidst administrative challenges, including conflicting interpretations of qualification statutes and pay scales, culminating in a series of orders that questioned the legitimacy of promotions based on seniority and due process.
Finding of the Court:
The court concluded that the government failed to correctly apply the provisions regarding promotion, particularly Rule 28(b) of the KSSR and Statute 44 of MG University Statutes, and directed that the promotion matters be revisited, ensuring all affected staff are considered and complied with proper procedures.
Issues: Whether the promotion of the deceased as an LD Clerk was valid considering the adherence to seniority rules and proper application of KSSR and MG University Statutes.
Ratio Decidendi: The court emphasized the necessity for the government to apply the relevant statutes accurately and ensure that due consideration is given to qualifications and pay scale while determining promotions, as outlined in the applicable rules.
Final Decision: The writ petition is allowed; the Government must reassess the promotion case within three months.
JUDGMENT
This case has a checkered history whereby late Sri.Babu Varghese who is being represented by his legal representatives are made run from pillar to post for defending the order of promotion as LD Clerk from LD Typist. The question of considering the promotion as LD Clerk from the feeder category is laid way back in 1993 ie., 06.11.1993 when circular Ext.P4 was passed by the Deputy Director of Collegiate Educations on the premise that Taxidermist and Herbarium keeper were drawing the same pay scale and were included in the feeder category for appointment of LD Clerk by transfer. Even LD Typists was also included in the feeder category of promotion to the LD Clerk. An option was given to LD Typist, Herbarium keepers and Taxidermist in the same scale of pay to get excluded from the feeder category for promotion to LD Clerk or otherwise.
2. Babu Varghese joined as Last Grade staff on
02.09.1996 and was promoted as LD Typist on 01.11.1997 after the circular Ext.P4. Statute 44 of Part C of Chapter 45 of Mahatma Gandhi University Statutes 1997 envisage a qualification for appointment as Lower Division Clerk, Lower Division Store Keepers and Low Division Accountant to be possessing SSLC or equivalent qualification with a pass in the Manual of Office Procedure shall be promoted on the basis of common seniority. With this background in mind and the fact that Babu Varghese, since deceased, did not opt for feeder category and drawn a pay scale of LD Typist as 3050-75-3950-80-5230 equivalent to LD Clerk ie., equal pay of scale as per the provisions of Rule 28.b of Kerala State and Subordinate Service Rules 1958 Part II, was promoted as LD Clerk, vide Order Ext.P9 dated 02.05.2001. The Director of Collegiate Education rejected the approval vide Ext.P10. The management of the college vide communication dated 02.04.2002 (Ext.P11) stated that Babu Varghese was permitted to continue as LD Clerk by category change in place of Sri.K.Mathai who relinquished claim of promotion. Vide Ext.P12 dated 22.09.2009 directed the management to revoke the promotion of the petitioner as LD Typist and LD clerk. During the interregnum one Sri.Abey Cherian also claimed the promotion to the post of LD Typist, since his case was not considered a representation/appeal was submitted to the Government which was not acceded to, resulting into a direction dated 28.11.2003 by this Court in W.P. (C).No.27588/2013. Government issued order dated 23.04.2014 (Ext.P13) without hearing Babu Varghese but heard Abey Cherian and the management. In those proceedings also it was brought to the notice of the Government that Babu Varghese was correctly appointed to the post of LD Typist as he was drawing a higher pay scale equivalent to the LD clerk and was promoted with effect from 01.06.2001. De hor of the aforementioned fact, the Government vide order ibid rejected the case of Abey Cherian as LD Typist as done by the management. Further direction to the management was issued to revert Babu Varghese and in that connection Ext.P14 consequential order was issued by the management wherein the action of appointment of Babu Varghese as LD clerk with effect from 01.06.2001 was reiterated. It was also noted that Abey Cherian who was appointed as a LD Typist could not be promoted as LD Clerk as he was drawing the higher pay scale equivalent to LD Clerk whereas his appointment as LD Typist was against the vacancy caused by the category change given to Sri.Reji David. But the college reverted the petitioner to the post of LD Typist.
3. Babu Varghese assailed the order along with other persons in this Court vide W.P.(C).No.13812/2015. This Court vide judgment dated 07.02.2019 noticed that there were other similarly situated persons who were affected and the Government could not have heard Abey Cherian at the back of not only Babu Varghese but other certain persons. It was also found that there were almost sixteen persons who were affected. Accordingly, the orders impugned were set aside. G
