Power To Frame & Amend Service Laws Does Not Mean Power To Apply It Differently To Similarly Situated Persons: Kerala High Court

The Division Bench of Justice Jayasankaran Nambiar and Justice Mohammed Nias CP observed that allowing the government to do so would be violative of all cannons of equality enshrined in the Constitution of India.

"We find it disturbing that the government had treated similarly situated persons differently. The power of the government to make laws determining the service conditions of its employees or amend such laws cannot confer them the power to apply such laws differently to similarly situated persons. Allowing the government to do so would be violative of all cannons of equality enshrined in the Constitution of India. The government is as much bound by the rule of law as any other with additional responsibility of being fair and just in all their actions both in governance as well as in litigation."

The bench was dealing with state's appeal whereby the respondent was initially appointed as a junior lecturer on 17.08.1996. Due to the de-linking of the pre-degree courses from the college as part of the implementation of the Pre-degree (Abolition) Act 1997, he was deployed to a high school under the same management. In 2011 when a vacancy arose, the respondent was redeployed as an Assistant Professor in Hindi.

It was submitted that as per the UGC Scheme, which had by then been implemented in the state, those teachers who completed six years of service are entitled to be promoted as "Senior Scale Lecturers", and according to him, since he is qualified, he is entitled to get promotion as Senior Scale Lecturer and further benefits.

The counsel for the respondent also cited several instances of teachers similarly situated being granted the said benefit. A number of Supreme Court decisions were cited in support of this argument.

Senior Government Pleader Advocate Bijoy Chandra, contended that the post of Junior Lecturer (Pre-degree) would not satisfy the conditions stipulated there as the post of Junior lecturer is not an equivalent grade/scale of pay as the post of Lecturer. Evidently, the qualifications for the Junior Lecturer post were lower than those prescribed by the UGC for the post of Lecturer. It was also contended that the conditions in the V and VI UGC Scheme did not provide any provision to reckon the service rendered as a junior Lecturer for placement under CAS. Furthermore, it was also argued that the government had already withdrawn the promotions effected by the Government letter dated 20-09-2017 with retrospective effect. The Director of Collegiate Education and Universities was directed to review the prior service for placement or promotion given on the basis of this government letter. It also cancelled the same with retrospective effect.

Senior Advocate Babu Varghese instructed by Advocate C.V. Alexander, appearing for the respondent, had contended that going by Clause 6.2 onwards, he is entitled to be considered for promotion.

However, the court observed that from the wording of clause 6.20, it is very clearly shown that the minimum length of service for eligibility to move into the grade of Lecturer (Senior Scale) would be four years for those with PhD, five years for those with M.Phil and six years for others at the level of Lecturer and for eligibility to move into the Grade of Lecturer (Selection Grade/Reader), the minimum length of service as Lecturer (Senior Scale) shall be uniformly five years.

In the instant case, the respondent was appointed as Lecturer only on 1-7-2011. Furthermore, the argument of the writ petitioner, that his service, even when he was deployed as a Higher Secondary School teacher, also should be reckoned for his promotion cannot be accepted at all in view of the express provision in 6.20 under the head CAS as he had not been a Lecturer till 1-7-2011.

The court further opined that Clause 7.1, which deals with counting of past service, also speaks about the previous service, without any break as a lecturer or equivalent and further that the post should be an equivalent grade/scale of pay as the post of Lecturer. It is undisputed that the respondent was not a lecturer until his appointment in the year 2011; therefore, it is evident that the respondent doesn't meet the stipulations of government orders, and the respondent can claim no benefit for promotion under the CAS. By no stretch of imagination can the prior service of the petitioner as HSST be treated as equivalent to a Lecturer.

The court added,

"Since we have held that the petitioner is not entitled under Ext. P14 Government Order, we cannot countenance the argument that the promotions given in violation of Ext. P14 should be followed in the case of the respondent as well. We cannot perpetuate such illegalities and if done, it will be nothing but a case of negative equality which is not contemplated under law."

Thereby the court allowed the appeal by setting aside the judgment of the learned Single Judge and dismissing the Writ Petition preferred by the first respondent.

So far as State's discriminatory action is concerned, it directed the Director of Collegiate Education, Thiruvananthapuram and all the Universities in Kerala, to implement the directions in Ext. P24 Government Order and to take it to its logical conclusion in respect of all cases where placement/promotion has been granted contrary to the terms of Ext. P14 Government Order, without delay.

Case Title: State of Kerala v. DR.JOHN PANICKER

Citation: 2022 LiveLaw (Ker) 330

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