IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33042 of 2007(H)
1. FRANKLIN ROBERT JOHN, LECTURER,
... Petitioner
2. USHA NAIR, LECTURER,
3. NARASIMHA D.S., LECTURER,
4. V.DAMODARAN, LECTURER,
5. JACOB ELIAS, LECTURER,
6. ROY M.THOMAS, LECTURER,
7. THOMAS.T., LECTURER,
8. S.RAMDAS, LECTURER,
9. ABDU RAHIMAN.K.U.,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. COCHIN UNIVERSITY OF SCIENCE &
3. THE UNIVERSITY SYNDICATE,
4. THE REGISTRAR, COCHIN UNIVERSITY OF
For Petitioner :SRI.RAJU JOSEPH
For Respondent :DR.K.P.SATHEESAN, SC COCHIN UNIVERSITY
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :03/12/2008
O R D E R
ANTONY DOMINIC, J.
--------------------------
W.P.(C) No.33042 OF 2007
-------------------------------------
Dated this the day of November 2008
J U D G M E N T
The prayer in this writ petition is for quashing Exs.P1 &
P8 to the extent it excludes the past service of the
petitioners in the institutions approved by the AICTE prior to
their appointment under the 2nd respondent for placing them
in career advancement scheme, as it is illegal, unjust and
discriminatory and ultravires of Article 14 of the Constitution
of India. The petitioners pray that the respondents be
directed to reckon their past service under the AICTE
approved institutions outside the State of Kerala for placing
them in the cadre Lecture (Senior Scale).
2. The petitioners were appointed as lecturers in
various disciplines of Engineering under the 2nd respondent
during the period from 1999 to 2002. Prior to their
appointment, they had worked in different Colleges of
WP(c).No.33042/07 2
Engineering out side the State, which are affiliated to the
AICTE. Aggrieved by Clause 3.11 of Ext.P1 to the extent it
excludes outside State experience for considering their
eligibility for placement in the senior / selection grade, this
writ petition has been filed.
3. It would appear from the pleadings that the AICTE
issued a notification dated 15/03/2000 introducing Career
Advancement Scheme. Clause 7 of the said notification is
as follows :-
“(a) Minimum length of service for eligibility to move into
the grade of Lecturer (Senior Scale) would be four years
for those with Ph.D., five years for others with
M.Phil/ME/M.Tech and six years for others as a Lecturer,
and for eligibility to move into the grade of Lecturer
(Selection Grade)/Assistant Professor, the minimum length
of services Lecturer (Senior Scale) shall be uniformly five
years.
(b) For movement into grades of Assistant Professor and
above, the minimum eligibility criterion would be Ph.D.
Those teachers without Ph.D can go upto the level of
Lecturer (Selection Grade).
WP(c).No.33042/07 3
(c) An Assistant Professor with a minimum of eight years
of service will be eligible for consideration for appointment
as Professor.
(d) For every upward movement, a selection process
would be evolved, for which appropriate guidelines would
be laid down by the AICTE in consultation with the
Government of India.”
4. Based on the AICTE notification dated
15/03/2000, the Government of Kerala issued Ext.P1
notification dated 18/05/2000 introducing revision of scales
of pay of Teachers in Engineering Colleges. Clause 3.11 of
Ext.P1 provides for Career Advancement scheme. In so far
as this writ petition is concerned, the following sub clauses
of Clause 3.11 being relevant, are extracted below for
reference.
“The following past service will be considered for placing
the teachers in Senior / Selection Grade.
1. Period of service as Lecturer / Lecturer (Senior
Grade) in AICTE approved Engineering Colleges in the
State.
2. Period of service as Lecturer / Asst. Lecturer in
Polytechnics in the State after acquiring a degree in
Engineering.
WP(c).No.33042/07 4
3. Experience in a Scientific or Industrial Organisation
under Govt. of Kerala or Govt. of India service and State
Govt. service subject to a maximum of three years,
provided the post is comparable (the minimum qualification
for the post as same as that of Lecturer in Engineering
Colleges). The provisional / contract service of teachers in
Engineering Colleges / Polytechnic will also be counted as
qualifying service.”
5. According to the University, various
representations were received against exclusion of outside
the State service, and the University by Ext.R2(b) took up
the matter with the Director of Technical Education, who by
Ext.R2(c) clarified the position reiterating Clause 3.11. It is
also stated that the University had appointed a Sub
Committee of the Syndicate which submitted a report that
the Committee feels that the University need not make any
change in the system of Career Advancement and that the
existing scheme be continued till further orders come from
the State Government. The Syndicate of the University
considered the report and issued Ext.P8 order dated
11/10/2006 approving the report.
WP(c).No.33042/07 5
6. In the meanwhile, the petitioners represented
against Clause 3.11 of Ext.P1 and they were praying that
their outside service should also be reckoned for placement
in the senior scale. It is stated that in reply to their
representations, Ext.P5 was given to the 1st petitioner
stating that his previous service outside the State cannot be
reckoned as per Government Order, and that his request for
placement in the senior scale can be considered only after
completing the required period of service as specified in the
University order. It is in this background, the writ petition
has been filed mainly contending that Clause 3.11 of Ext.P1
to the extent it excludes outside service is discriminatory
and is offending Article 14 of the Constitution of India.
7. The learned counsel for the petitioners mainly
contends on the validity of Clause 3.11 of Ext.P1. According
to him, the Government of Kerala having decided to reckon
past service for placing teachers in senior / selection grade,
without any valid or justifiable reason decided to exclude
WP(c).No.33042/07 6
previous service outside the State. It is also contended that
all the petitioners had rendered service in the reputed
Engineering Colleges and in Universities outside the State
and that these colleges are all approved by the AICTE and
are rendering, if not better, equal qualitative services, and
therefore there is absolutely no reason to exclude their
previous service. It is further contended that the
Government have not stated any reason for sustaining the
classification it has made which lacks any valid reason.
8. The learned counsel draws my attention to the
preamble to the AICTE Act, 1987 and would also contend
that the classification now made is against the very object
and functions of the AICTE, which includes co-ordination for
the development of technical education in the country at all
levels, by virtue of Section 10D thereof. Yet another
contention that is raised is that by Ext.P2, when clarification
was sought, the AICTE considered the matter and decided to
follow the same Rules and Regulations, which are being
WP(c).No.33042/07 7
followed by the UGC in similar type of cases. Referring to
Ext.P3 UGC scheme, it is contended that vide Clause 7
thereof, previous service in a University, College etc. either
inside or outside the State is reckoned by the UGC for
placing the lecturers in senior scale / selection grade subject
to the conditions mentioned thereon. It is contended that
the AICTE having chosen to follow the UGC scheme and as
the UGC does not make any distinction between the inside
and outside the State service, the 1st respondent committed
an illegality by excluding outside service while implementing
the AICTE scheme.
9. A counter affidavit has been filed by the first
respondent. In that counter affidavit, they have stated that
the AICTE notification on revised pay scale and service
conditions in Degree Level Technical Institutions, dated
15.3.2000, do not prescribe any norms for counting past
service for Career Advancement. It is stated that, availing
of the discretion that is conferred on the State, the State
WP(c).No.33042/07 8
unilaterally introduced the provisions in Ext.P1 for
reckoning previous service as Lecturer/Lecturer(Senior
Grade) in AICTE approved Engineering Colleges in the State.
Therefore, according to the first respondent, it was an
additional benefit that was granted by them. The thrust of
the counter affidavit is that the eligibility of the petitioner
for the benefit of Ext.P1 depends upon the conditions of
Ext.P1 and that, in terms of the conditions incorporated in
Ext.P1, service rendered outside the State is not liable to
be reckoned.
10. Although, in the writ petition, petitioners have
challenged the classification made in Ext.P1 and the
exclusion of outside the State prior service vide clause (1)
of para 3.11 of Ext.P1, the first respondent has not offered
any justification for such classification. However, when the
case was taken up for hearing, the learned Government
Pleader contended that it was taking into account the
standard of education prevailing elsewhere in the country
WP(c).No.33042/07 9
that the State decided to reckon only the previous service
rendered within the state. It was also argued that financial
limitations were one of the reasons for restricting the
benefit of previous service, to what was rendered within the
State. The learned Government Pleader also placed reliance
on the Apex Court judgment in State of Madhyapradesh
V. Pramod Bharatiya and Ors.(1993(1) SCC 539) to
sustain clause (1) of para 3.11, impugned in this writ
petition.
11. When the matter was taken up today, counsel for
the petitioner submits that one smt. Mythili, a Lecturer
under the respondent University has been given the benefit
of the research experience in IIT Chennai and that on that
basis the benefit of Ext.P1 was extended to her. In the
absence of any pleading to support this factual assertion, I
do not intend to rest my conclusions on the same.
12. Obviously, the effect of clause (1) of paragraph
3.11 of Ext.P1 is that, period of service as Lecturer in AICTE
WP(c).No.33042/07 10
approved Engineering Colleges in the State alone will be
given credit for placing teachers in the Senior/Selection
Grade. In so far as the petitioners are concerned, prior to
their appointment into the service of the 2nd respondent,
they had rendered service for varying periods, outside the
State and that too in AICTE approved Engineering Colleges
and Universities. Therefore, they were also Lecturers outside
the State in AICTE approved Engineering Colleges and but
for the restriction in 3.11(1) of Ext.P1, this period would
have been reckoned. By confining the benefit of past
service only to Lecturers in AICTE approved Engineering
Colleges in the State what the first respondent has done is
to classify Lecturers in the AICTE approved Engineering
Colleges into two classes namely those who have rendered
service within the State and those who have rendered
service outside the State.
13. Under Article 14 of the Constitution of India,
although classification is permissible what is impermissible
WP(c).No.33042/07 11
is discrimination. In this case, a classification has been
made and the Lecturers like the petitioners who had
rendered service outside the State have been denied the
benefit of counting their past service and in that sense, they
have been discriminated. May be it was possible for the
State to justify the same either on the basis of the quality of
the service that they rendered outside the State or on the
basis of the qualification of the lecturers or on the basis of
financial constraints or on such other valid criteria. By the
averments made in the writ petition, petitioners have prima
facie shown that they are equally placed like the Lecturers
rendering service in the AICTE approved Engineering
colleges in the State. Once that initial burden is discharged,
the burden of justifying the classification is on the State. In
my view, in the counter affidavit filed by the respondents,
the State has not offered any justification for excluding the
service rendered by the Lecturers in AICTE approved
Engineering Colleges outside the State. What is the nexus
WP(c).No.33042/07 12
between the classification and the object that is sought to
be achieved is not forthcoming in the pleadings of the State.
If that be so, I must hold that, the State has failed in
justifying the classification that they have made in clause
(1) of para 3.11 of Ext.P1. If that be so, the necessary
conclusion that is possible is that clause(1) of para 3.11 of
Ext.P1 excluding the previous service rendered by the
Petitioners in the AICTE approved Engineering Colleges
outside the State is a discriminatory provision.
Accordingly, clause(1) to the extent it restricts counting
of previous service of Lecturers in AICTE approved
Engineering Colleges within the State will stand set aside.
As a necessary consequence, the benefits in terms of the
provision shall be extended to the petitioners without
further delay in the matter.
Writ Petition is disposed of as above.
vi ANTONY DOMINIC
JUDGE
WP(c).No.33042/07 13
vi.