IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28277 of 2007(N)
1. SURESH K.P.,SELECTION GR.ASSISTANT,
... Petitioner
2. RANJITH P.V.SELECTION GR.ASSISTANT,
3. ANIL CHANDRN,SELECTION GR.ASSISTANT,
4. SMITHA BHASKARAN,,SELECTION GR.ASSISTANT
5. SIRAJ K.M.,SELECTION GR.ASSISTANT
6. PRIYA V.O. SELECTION GR.ASSISTANT
7. RAJALAKSHMI P.M.SENIOR GR.ASSISTANT
8. PREMAN K.P.,SELECTION GR.ASSISTANT
Vs
1. KANNUR UNIVERSITY MAGATTUPARAMBA,
... Respondent
2. PRABHATH KUMAR K.,SELECTION GR.ASSISTANT
3. ASHRAF K.SELECTION GR.ASSISTANT
4. ASWATHI T.P.SELECTION GR.ASSISTANT
5. RAJAN BABU T.V.SELECTION GR.ASSISTANT
6. DEEPA N, SENIOR GR.ASSISTANT
7. RAHUL B.ASHOK, SENIOR GR.ASSISTANT
8. DHANYA RAK K,SELECTION GR.ASSISTANT
For Petitioner :SRI.K.S.MADHUSOODANAN
For Respondent :SRI.M.SASEENDRAN,SC,KANNUR UNIVERSITY
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :16/10/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO.28277 OF 2007 (N)
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Dated this the 16th day of October, 2009
J U D G M E N T
The point on which the parties urged their contentions
centres around the prayer made by the petitioners for quashing
Ext.R3(h) order conferring promotion to respondents 2 to 8 with
effect from 17.3.2005 as Assistant Grade-I. If this prayer is
granted, rest of the prayers sought for are consequential in
nature.
The relevant facts are that on 6.3.2004, the petitioners and
respondents 1 to 8 were appointed under the first respondent,
the Kannur University as Assistants Grade-II. All of them
completed one year probation by 6.3.2005 and were thereafter
promoted as Assistant Grade-I, by Ext.R3(h) order, with effect
from 17.3.2005. As at present, all except the 2nd respondent are
working as Assistant-Selection Grade and the 2nd respondent is
working as a Section Officer.
According to the petitioners, qualification for the post of
Assistant Grade-I is laid down in Ext.P16, the Kannur University
Ordinance, 1999, which prescribed that the post shall be filled
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up by promotion from the cadre of Assistant Grade-II, having
completed the period of probation and passed Account Test
Lower/Higher and Secretariat Manual and based on seniority.
Referring to Ext.R3(k)(l)and (m) petitioners contend that in terms
of Section 39(2) of the Kannur University Act, the date directed by
the Syndicate as the effective date of the Ordinance is 7.6.2002.
It is stated that the party respondents passed the Account
Test on 18.10.2004 and Secretariat Manual on 5.4.2005 in the
examination held in January, 2005. The case of the petitioners is
that in view of the provisions contained in the University
Ordinance referred to above, which was implemented from
7.6.2002, the party respondents having passed obligatory
Secretariat Manual Test, only on 5.4.2005, were eligible for
promotion only thereafter and therefore they could not have
been promoted, along with them, on 17.3.2005.
Alternatively, it is also contended that even if it is assumed
that as on the date of promotion, viz. 17.3.2005, the Ordinance
was not in force. In view of the provisions contained in Section 99
(2) of the Kannur University Act, Calicut University Ordinance
1978 held the field until the Kannur University Ordinance 1999
WPC .No.28277/07
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was implemented with effect from 7.6.2002. It is contended that
the eligibility criteria laid down in the Calicut University First
Ordinance, is similar to those contained in the Kannur University
Ordinance and hence even under the Calicut University
Ordinance, the petitioners could not have been promoted on
17.3.2005.
Although, counsel for the petitioners referred to Rule 28(a)
and Rule 28(bb) of Part-I KS & SSR to contend on the effective
date of passing the test, having regard to the facts of this case I
do not think it necessary to deal that contention.
Counsel appearing for respondents 3,4 and 5 raised the
technical plea that the writ petition was belated and that the
contentions raised are contrary to the pleadings on merit. He
contended that the Ordinance laid down the eligibility criteria
and that at the time when they were promoted, the party
respondents were fully eligible. He contended that the party
respondents passed the Account Test in 2004 and Secretariat
Manual in the examination held in January,2005 of which the
result was published on 5.4.2005.
WPC .No.28277/07
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He pointed out that the Kannur University Act came into
force on 9.11.1995 and that under Section 99(2) of the Act, the
Calicut University Ordinance as it stood then, continued to apply
until it was replaced by Ext.P16 the Ordinance framed by the
Kannur University. He referred Ext.R3(f), the Calicut University
Ordinance, and contended that pass in Secretariat Manual was
not a qualification prescribed by the Calicut University until the
Schedule to the Ordinance was replaced with effect from
14.12.2004. According to him what was relevant was the rule as
on 9.11.1995 and that as per the rule then in force pass in
Secretariat Manual was not a prescribed qualification. On this
basis, it was contended that at the time when they were
promoted on 17.3.2005, party respondents satisfied all the
qualifications prescribed for promotion.
Yet another plea that he canvassed is that, at any rate, in
terms of Section 39(2) of the Kannur University Act, the Syndicate
had directed that the Ordinance shall be effective from 7.6.2002.
According to him, even if the Ordinance was given retrospective e
effect as contended, still by virtue of such retrospective effect,
the benefits that were already accrued to the petitioners under
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the existing Rules cannot be taken away.
Standing counsel for the University referred to me to Exts.R1
(b), a chart with the particulars of the date on which the party
respondents acquired the test qualifications. Counsel appearing
for the other party respondents, mainly adopted the submissions
made on behalf of the respondents 3,4 and 8 and pointed out that
the facts as far as they are concerned are identical to those of
respondents 3,4 and 5.
I have considered the submissions made.
In my view, the issue regarding the eligibility of the party
respondents for promotion as Assistant Grade-I lies in a very
narrow compass. Going by Ext.R3(m), exercising its powers under
Section 39(2) of the Kannur University Act, the Syndicate of the
Kannur University directed that the Ordinance shall be effective
from 7.6.2002. In view of the provisions contained in Section 99 of
the Act, although the Regulations, Statutes and Ordinances
framed under the Calicut University Act stood repealed in so far
as the areas covered by Kannur University Act is concerned,
Section 99(2) provided that the Ordinance, Statute etc., as it
stood on 9.11.1995, will continue to be operative, till it is
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replaced by an Ordinance etc., framed under the Kannur
University Act. If that be so, promotion effected on 17.3.2005
was as per the provisions of the Calicut University Ordinance. In
such a case, the question to be considered is whether under the
Calicut University Ordinance, pass in Secretariat Manual was a
prescribed qualification. Counsel for respondents 3,4 and 8
referred me to Ext.R3(f), copy of the Calicut University First
Ordinance 1978 framed on 15.7.1978. In terms of the said
Ordinance, the post of Assistant Grade-I is to be filled up by
promotion of Assistant Grade-II having completed the period of
probation and passed Account Test Lower based on seniority.
What is to be noticed is that in this Ordinance, there is no
prescription that Assistant Grade-II should have passed
Secretariat Manual test to be eligible for promotion as Assistant
Grade-I. This position continued until the Schedule to the Calicut
University Ordinance was replaced on 14.12.2004. As already
noticed what was applicable in terms of Kannur University was the
Ordinance framed by the Calicut University as it stood on
9.11.1995 when the Kannur University Act was implemented. If
that be so, the pass in the Secretariat Manual thus was not an
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essential qualification for promotion to the post of Assistant
Grade-I until the Kannur University framed its Ordinance.
Then the further question is the effect of the retrospective
implementation of the Kannur University Ordinance and whether
promotions already effected will be affected by such retrospective
implementation of Ordinance. As already noticed it was in the
meeting of the Syndicate held on 14.12.2005, by Ext.R3(m) the
Syndicate ratified the suggestion to make Ordinance effective
from 7.6.2002. This is the statutory power of the Syndicate under
Section 39(2) of the Kannur University Act. Before 14.12.2005, the
respondents were already promoted by Ext.R3h) with effect from
17.3.2005. In my view it is up to the University to frame
Ordinances and amend the same. This power can be exercised
with prospective effect or with retrospective effect. However,
such power of amendment is subject to the well recognized
principle that the benefits accrued under the existing Rules
cannot be taken away by an amendment introduced with
retrospective effect. See in this connection the Apex Court
judgment reported in T.K. Kapur & Ors. V. State of Haryana
& Ors.(AIR 1987 SC 415).
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If that be the legal position, the promotions already effected
cannot be disturbed by the retrospective implementation of
Ordinance. If that be so, prayers in this writ petition cannot be
granted.
At this stage, counsel for the petitioners has referred me to
the averments in paragraph 5 that respondents 2,5 and 7 had
not passed even the Account Test as on 17.3.2005 when they
were promoted. This is a factual issue and there is dearth of
materials to arrive at a conclusion. Therefore it is directed that
the University shall verify the correctness of this contention and if
correct, shall take appropriate action.
Writ Petition is disposed of as above.
(ANTONY DOMINIC)
JUDGE
vi/