IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8968 of 2009(M)
1. DR.V.SOBHA, PROFESSOR AND HEAD OF THE
... Petitioner
2. DR.T.DEVARAJAN, PROFESSOR AND HEAD OF
Vs
1. UNIVERSITY OF KERALA, REPRESENTED BY ITS
... Respondent
2. THE REGISTRAR,UNIVERSITY OF KERALA,
3. DR.V.R.PRAKASAM, PFORESSOR,DEPARTMENT
4. DR.P.SYAMALA DEVI, PROFESSOR,
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY.
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :23/06/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) Nos.8352/09-L, 8968/09-M
& 9300 of 2009-F
- - - - -- - - - - - - - - - - - - - - - - - - - -
Dated this the 23rd day of June, 2009.
JUDGMENT
All these three writ petitions raise a common issue and therefore they
are disposed of by a common judgment. Writ Petition No.8968/2009 is
taken as the leading case.
2. The petitioners herein are challenging the amendment to Statute 18
of the Kerala University First Statutes, 1977, produced as Ext.P1. Under
the unamended provision, the petitioners have been nominated as Head of
the Departments concerned by the Syndicate. Going by the provisions of
Statute 18, the seniormost Professor has to be nominated as the Professor in
Charge of the Department. The petitioners in the three writ petitions have
been thus nominated and they are continuing as Heads of the Department
concerned. It is pointed out that under Statute 19, the Heads of Departments
are conferred with various administrative and financial powers. It is thus
contended that the post of Head of the Department is a statutory post created
by the Statutes and it is vested with various administrative, disciplinary and
supervisory powers including academic works. All the other Readers,
wpc 8352/09, 8968/09
& 9300/09 2
Lecturers and other members of the teaching staff have to work under the
directions of the Head of the Department. Therefore, seniority has been
given due reckoning while nominating the Head of the Department.
Accordingly, it is contended that the same is a promotion post, even though
there is no difference in the scale of pay sanctioned to the post of Professor
and Head of the Department.
3. As per the amendment brought out by Ext.P1, the Head of the
Department shall be nominated on a rotation basis for three years starting
with the seniormost teacher of the Department. It is therefore contended
that the seniormost Professor will have to work under a junior after the
stint of three years. Therefore, the amendment is attacked as unreasonable,
arbitrary and discriminatory and hence violative of Article 14 of the
Constitution. It is submitted that the vested right of the petitioners to
continue as Heads of the Department cannot be curtailed by such an
amendment.
4. Heard learned counsel for the petitioners Shri Elvin Peter, Shri
O.V.Radhakrishnan, learned Senior Counsel for the 4th respondent in W.P.
(C) No.8968/2009, Shri T.A. Unikrishnan for the third respondent and Shri
M. Rajagopalan Nair, learned Standing Counsel for the University and
wpc 8352/09, 8968/09
& 9300/09 3
learned Govt. Pleader.
5. Learned counsel for the petitioners relied upon the principles
stated by the Apex Court in State of Rajasthan v. Fateh Chand Soni
(1996 (1) SLR 1 and A.P. State Electricity Board v. R. Parthasarathi
and others (1998) 9 SCC 425) to contend for the position that going by the
unamended Statute 18, many administrative, disciplinary and supervisory
powers, responsibilities and duties are attached to the post of Head of the
Department. It is therefore contended that the same is clearly by way of
promotion in accordance with the seniority. The violation of the concept of
seniority thus results in arbitrariness and the provisions of Articles 14 and
16 are therefore breached. It is contended that the petitioners have acquired
a vested right to continue as Heads of the Department concerned till their
retirement and the said right cannot be taken away by the amendment.
Learned counsel for the petitioners alternatively contended that even going
by the present amendment, the Head of the Department shall be nominated
on a rotation basis for three years starting with the seniormost teacher of
the Department. Therefore, the Syndicate cannot nominate other teachers
since the petitioners are the seniormost teachers.
6. Shri O.V. Radhakrishnan, learned Senior Counsel appearing for
wpc 8352/09, 8968/09
& 9300/09 4
the 4th respondent submitted that in the process of nomination of a Professor
as Head of the Department, there is no selection or promotion. It is not at
all a promotion post. Different cadres have been provided under the Act
and the Statutes for promotion and the post of Head of the Department is not
one created for granting a promotion. Therefore, it is submitted that
nomination of a Professor as the the Head of the Department, does not
result in creation of a separate cadre from that of the Professor. It is not an
advancement to a higher grade so as to invite the concept of promotion.
No higher scale is provided and the person nominated does not acquire a
lien also. There is no substantive appointment to any permanent post.
Herein, only by the amendment, a tenure is provided for the Head of the
Department. It is a reasonable provision. In all other Universities, similar
provisions have been adopted. By providing a tenure, others are also
benefited and therefore the concept of adequate representation to every one
cannot be assailed, as the said method provides a proper democratic process.
Ext.R4(a) is an order issued by the University dated 19.3.2009 pursuant to
the decision of the Syndicate in its meeting held on 22.1.2009, nominating
various Heads of the Departments. It is pointed out that Ext.R4(a) is not
under challenge in this writ petition. Therein, the Syndicate has decided
wpc 8352/09, 8968/09
& 9300/09 5
that the Heads of the Departments who have completed three years of
service will not be entitled to continue further. Ext.R4(b) is the order
passed by the Lok Ayuktha in complaint No. 534/2008 wherein the
amendment sought to be challenged before the Lok Ayuktha was rejected.
7. Shri Rajagopalan Nair, learned Standing Counsel appearing for the
University submitted that the amendment is preceded by a proper
deliberation in academic circles. It is pointed out that by Ext.R2(a) the
Federation of University Teachers Association submitted a representation to
the Governor to introduce the principle of rotation as in the case of the
other Universities. It is pointed out that the same was placed in the meeting
of the Syndicate on 24.3.1999 and the Committee has thereafter taken a
decision to carry the proposed amendment. The meeting of the Teachers’
Grievance Cell also recommended that the matter may further be examined.
A thorough study was conducted by a committee consisting of two members
of the Syndicate. Various other steps taken are also explained in the
counter affidavit. It is further pointed out that the Vice Chancellor
convened a meeting of Heads of Departments on 8.1.2008 and they have
approved the amendment. Accordingly, the Syndicate after considering the
minutes of the meeting placed the amendment before the Senate and the
wpc 8352/09, 8968/09
& 9300/09 6
amendment was approved on 26.3.2008. It is pointed out that the post of
Head of the Department is not a promotion post as in the case of Selection
Grade Lecturer or Reader or Professor. In many of the departments in the
University there are more than one Professors and when the nomination is
confined to the seniormost alone, the other Professors who are in equal
status, are being denied the privilege of being the Head of Department. It is
pointed out that the same is not arbitrary, as contended.
8. A reading of Statute 18 as unamended shows that the idea
involved by nominating the seniormost Professor to be in charge of a
department is not at all by way of a promotion. It is therefore clear that he
is a caretaker of the department and its activities. There is no appointment
involved as there is no promotion post of the Head of Department. It
cannot be said that the other teachers are subordinate to the Head of the
Department. No disciplinary powers are also conferred, in respect of
teachers. It is not disputed that no higher scale of pay is also provided. As
rightly contended by the respondents, the concept of seniority as such is not
given a go-bye by the amendment also. Going by the amended provision,
the nomination shall be on a rotation basis for three years starting from the
seniormost teacher of the department. After the tenure of the seniormost the
wpc 8352/09, 8968/09
& 9300/09 7
next seniormost Professor has to be nominated. Thus, a turn is
implemented by considering the inter-se seniority. Therefore, the argument
raised by the learned counsel for the petitioners that the concept of seniority
is given a go-bye and that there is violation of Article 14 of the Constitution
cannot be accepted.
9. I will examine the petitioners have acquired the status of the Heads
of Department by way of promotion. Learned counsel for the petitioners
heavily relied upon the principles stated in State of Rajasthan v. Fateh
Chand Soni [1996 (1) SLR 1] in support of the above plea. In para 8 the
meaning of the word `promotion’ has been explained in the following terms:
“In the literal sense the word “promote” means “to advance to a
higher position, grade, or honour”. So also “promotion” means
“advancement or preferment in honour, dignity, rank, or grade.”
“Promotion” thus not only covers advancement to higher position or
rank but also implies advancement to a higher grade. In Service law
also the expression “promotion” has been understood in the wider
sense and it has been held that “promotion” can be either to a higher
pay scale or to a higher post.”
The facts of the case show that the relevant rules therein contemplated
appointment to the post in the selection scale by way of promotion.
10. Herein, the provision namely Statute 18 does not show that it is
wpc 8352/09, 8968/09
& 9300/09 8
by way of promotion. The post of Head of Department is not created by
promoting any seniormost Professor to that post. No particular
qualifications have been prescribed for promotion. Other relevant criteria
and procedure for promotion are also absent. Thus, obviously the dictum
laid down above will not apply to the facts of this case. In Union of India
and another v. S.S. Ranade {(1995) 4 SCC 462}, it was held in para 11 as
follows:
“In order to decide whether a post is either equivalent or is higher or
lower than another post, one cannot look only at the pay scale for
that post. One must also look at the duties and responsibilities that
are attached to such posts.”
It is therefore contended by the learned counsel for the petitioners that since
Statute 19 confers various duties and responsibilities, actually what is
involved is a promotion. The argument that was considered in the said case
was that the post of Commandant (Selection Grade) is a rank higher than
that of Commandant, and hence the retirement age is 58. It was found that
creation of a selection grade is in the same post. The principle stated in
A.P. State Electricity Board’s case {(1998) 9 SCC 425) does not apply to
the petitioners in these writ petitions.
11. Learned Senior Counsel Shri O.V. Radhakrishnan, relied upon
wpc 8352/09, 8968/09
& 9300/09 9
the principles stated by the Apex Court in The State of Assam v. Ranga
Muhammed and others (AIR 1967 SC 903), Chairman, Railway Board
and others v. C.R. Rangadhamaiah and others {(1997) 6 SCC 623) and
Union of India and others v. Rubi Mazumdar {(2008) 9 SCC 242} to
contend that actually there is no promotion involved while nominating a
Head of the Department. In the first one of the decisions, the word ‘posting’
in Article 233 of the Constitution of India was explained. On the
interpretation of the said Article, it was held that the said word occurs in
association with the words ‘appointment’ and ‘promotion’ and takes its
colour from them. Herein, there is no word like ‘appointment’ or
‘promotion’ in Statute 18. What is mentioned is the power of the Syndicate
to nominate a Head of the Department. In Chairman, Railway Board’s
case {(1997) 6 SCC 623}, the concept of accrued right and vested right
was explained. It was held in para 24 thus:
“In many of these decisions the expressions “vested rights” or
“accrued rights” have been used while striking down the impugned
provisions which had been given retrospective operation s as to have
an adverse effect in the matter of promotion, seniority, substantive
appointment, etc. of the employees. The said expressions have been
used in the context of a right flowing under the relevant rule which
was sought to be altered with effect from an anterior date and
wpc 8352/09, 8968/09
& 9300/09 10thereby taking away the benefits available under the rule in force at
that time. It has been held that such a amendment having
retrospective operation which has the effect of taking away a benefit
already available to the employee under the existing rule is arbitrary,
discriminatory and violative of the rights guaranteed under Articles
14 and 16 of the Constitution.”
While considering the question of violation of Articles 14 and 16 of the
Constitution, it was held in para 20 thus:
“It can, therefore, be said that a rule which operates in futuro so as
to govern future rights of those already in service cannot be assailed
on the ground of retroactivity as being violative of Articles 14 and
16 of the Constitution, but a rule which seeks to reverse from an
anterior date a benefit which has been granted or availed of, e.g.
promotion or pay scale, can be assailed as being violative of Articles
14 and 16 of the Constitution to the extent it operates
retrospectively.”
It is pointed out that the amendment herein is not having any retrospective
operation and the question of affecting any vested right of the petitioners
does not arise. It is therefore contended that the amendment is not violative
of Articles 14 and 16 of the Constitution.
12. It is clear from the above dictum that the concept of vested rights
has been made applicable in the matter of promotion, seniority and
wpc 8352/09, 8968/09
& 9300/09 11
substantive appointment of employees. Here, what is involved is not a
promotion in accordance with seniority. There is no substantive
appointment of the person nominated as Head of the Department. In that
view of the matter, the argument raised by the learned counsel for the
petitioners that the amendment affects the vested right of the petitioners and
hence the same is violative of Articles 14 and 16 of the Constitution,
cannot be accepted.
13. Shri Elvin Peter, learned counsel for the petitioners further
submitted that since the seniormost teachers have to work under a junior in
the Department, clearly the same amounts to discrimination. Going by the
idea behind the amendment, as explained in the counter affidavits, it is
mainly intended to provide opportunity to various others who are also in the
rank of Professors, etc. Presently, the nomination is on a rotation basis and
starts with the seniormost teacher. Of course, a tenure is fixed to work as
the Head of the Department. Since no promotion is involved, the argument
that a senior is compelled to work under a junior, cannot hold good. It is
clear from the counter affidavits that in other Universities, similar
provisions have been introduced. Deliberations have been made by various
bodies including Heads of Departments. The principle that emerges from
wpc 8352/09, 8968/09
& 9300/09 12
Statute 18 is a salutary one. In that view of the matter also, and having
regard to the object and purport of the amendment, this court will not be
justified in sitting in appeal over the wisdom of the various academic bodies
in effecting the amendment. As none of the rights of the petitioners is
affected adversely, as held already, there is no unconstitutionality in the
matter.
14. In Union of India’s case {(2008) 9 SCC 242}, the meaning of
the word ‘promotion’ was explained. It was held thus in paragraphs 31 and
32:
“In legal parlane, upgradation of a post involves transfer of a post
from lower to higher grade and placement of the incumbent of that
post in the higher grade. Ordinarily, such placement does not involve
selection but in some of the service rules and/or policy framed by the
employer for upgradation of posts, provision has been made for denial
of higher grade to a employee whose service record may contain
adverse entries or who may have suffered punishment. The word
“promotion” means advancement or preferment in honour, dignity,
rank, grade. Promotion thus not only covers advancement to higher
position or rank but also implies advancement to a higher grade. In
service law, the word “promotion” has been understood in wider
sense and it has been held that promotion can be either to a higher pay
scale or to a higher post.”
wpc 8352/09, 8968/09
& 9300/09 13
Hence, promotion can be either to a higher pay scale or to a higher post.
But herein, those two elements are absent.
15. Therefore, the challenge against Ext.P1 fails. It cannot be said
that the vested right of the petitioners is affected by the amendment. The
petitioners were only nominated to be Head of the Department by the
Syndicate. They were never promoted to the post of Head of the
Department, they have not acquired a higher status or a higher scale of pay
or accommodation in a higher post and did not acquire a lien. In that view
of the matter, the amendment cannot be faulted.
16. Then the other question is whether the decision in Ext.R4(a)
taken by the Syndicate is in tune with the amendment. Of course, Ext.R4(a)
is not under challenge directly in these writ petitions. But since, the
amendment itself is challenged and Ext.R4(a) being consequential, the
same is immaterial. Going by Ext.R4(a), the Head of Departments who
have completed three years, are not liable to continue. It is vehemently
argued by the learned counsel for the petitioners that the amendment can be
implemented only by conferring the first three years tenure to the
seniormost teachers, as envisaged in the amendment itself. It is therefore
submitted that the petitioners should have been nominated. This contention
wpc 8352/09, 8968/09
& 9300/09 14
is vehemently opposed by the learned counsel for the respondents.
17. It is clear that the amendments have been introduced while the
petitioners have already been nominated as Heads of the Departments.
Going by the amendment, a three years tenure is fixed. The purpose of the
amendment, admittedly, is to give opportunity to others in the Department.
It will have to be implemented on a rotation basis. True that the rotation
starts with the seniormost. Herein, the seniormost has already been
nominated as Head of the Department under the unamended Statute 18.
Once the amendment is held as valid, its impact will be there on the Heads
of Departments functioning as such on the date of effect of the amendment.
If that be so, persons who have already completed three years cannot
continue. If, as contended by the learned counsel for the petitioners, they
are to be nominated afresh, then the basic idea of the amendment itself is
defeated. For a harmonious construction of the entire scheme, the object
and purport of the amendment has to be gone into. Therefore, wherever the
seniormost has already completed a three years term, the nomination has to
go by the terms of Ext.R4(a) itself. Therefore, Ext.R4(a) cannot be faulted
at all. In Ext.R4(a) it is made clear that the Heads of the Departments who
have not completed three years, are eligible to continue as such upto three
wpc 8352/09, 8968/09
& 9300/09 15
years.
18. Going by the amended Statute 18, the re-nomination of the
seniormost teachers who have already completed the three year term, is not
contemplated. Otherwise, it would have been made clear under the
amended provision itself. In that view of the matter also, the contention
that the seniormost teachers are entitled to have a fresh nomination,
irrespective of the completion of three years period, cannot be accepted.
Therefore, the writ petitions are devoid of any merit and hence they
are dismissed.
(T.R. Ramachandran Nair, Judge.)
kav/