Statute 66 Of Calicut University Enables Incumbent In Lower Category To Claim Promotion Only To Immediate Next Higher Grade: Kerala HC

The Kerala High Court last week ruled that Statute 66 of Calicut University (Conditions of Service of the Teachers and Members of Non-Teaching Staff) First Statutes, 1979 enables an incumbent in a lower category to claim promotion only to the immediate next grade.

Allowing Kerala government's appeal against a single judge decision, the division bench of Justice P.B. Sureshkumar and Justice C.S. Sudha rejected the argument that promotion need not be from the immediate lower category only and can be effected from any of the lower categories.

The court was hearing a matter wherein a person, who had completed probation in the Upper Division Clerk in a college, was directly promoted to the grade of Junior Superintendent — the immediate higher grade to the former post is the grade of Head Accountant.

According to the State, the employee was first required to be promoted as Head Accountant and in absence of any other incumbent for promotion to Junior Superintendent, he could have been considered for the direct promotion only after completion of probation in the category of Head Accountant. However, the employee's argument was that Statute 66 enables him to claim promotion directly to the grade of Junior Superintendent.

The division bench said if Statute 66 is interpreted as put forward by the petitioner, one would be enabled not only to claim promotion to a grade next to the immediate next grade but also claim promotion to higher grades if there are no eligible incumbents available.

"Such a course cannot be said to be one contemplated by the framers of the Statutes, for in the absence of a specific enabling provision, when promotions are effected to non-selection posts solely based on seniority, the expectation is that having regard to the experience in the lower category, one would acquire the suitability to discharge the duties and functions attached to the higher grade, and if a person who had not worked in the immediate lower category is promoted to a higher grade, he may not have the suitability to discharge the duties and functions attached to the grade to which he is promoted."

Observing that if a person is given promotion as claimed by the employee without completing probation in the immediate next lower grade; in the event of abolition of the promoted grade, he can be reverted only to the category in which he was substantively appointed after the completion of probation.

"...and if in the meanwhile, a junior of the person is promoted to the immediate next grade and if he has completed probation in that category, that person will be able to claim seniority over his former senior," the court said, adding such promotions would result in anomalous situations.

The court therefore held

"When promotion is provided for under the rules to non-selection posts solely based on seniority, the same can be claimed only to the immediate next higher grade and he/she can be promoted further to the next higher grade only after completion of probation in that grade."

The Case

The employee, who was working as an Upper Division Clerk in Sree Krishna College, Guruvayoor, was promoted by the management directly to the post of Junior Superintendent in 2017.

However, the Director of Collegiate referred to the matter to the government, which clarified that the feeder category for promotion to the grade of Junior Superintendent being the grade Head Accountant, the petitioner was not entitled to be promoted straight away to the grade of Junior Superintendent, without completing probation in the category of Head Accountant. The employee approached the high court against denial of approval by the government.

A Single Judge, while granting relief to the employee, had taken a view that Statute 66 creates an exception to the requirement that one is entitled to be considered for promotion to a particular grade only from the next lower category.

It had directed the competent authorities to approve the promotion of the employee as Junior Superintendent with effect from 01.06.2017 and disburse to him the eligible benefits. The State challenged the decision.

Before the Division Bench

It was contended by the Senior Government Pleader A.J. Varghese that the Single Judge's holding that Statute 66 creates an exception is unsustainable in law.

The counsel submitted that Statute 66 which enables the petitioner to claim promotion to higher grades is subject to the rules in force in similar Government institutions concerning qualifications and method of appointment and since Rule 28(a)(i) of the Kerala State and Subordinate Service Rules applies to similarly placed employees in Government colleges, it applies to the employee as well. In light of the said provision, the counsel submitted that he would not be entitled to promotion to the grade of Junior Superintendent without completing probation in the category of Head Accountant.

On the other hand, the counsels for the employee, Advocates M.R. Anison and T.K. Vipindas, conceded that as per Statute 46, every person, other than persons in the Last Grade Service appointed by educational agencies of private colleges, shall be on probation for a period of one year within a period of two years, as specified in Section 59 of the Calicut University Act, 1975.

However, the counsel argued that the said provision would only preclude the employee from claiming promotion to higher grades from the category of Upper Division Clerk, if he has not completed probation in that category. Since the employee had completed probation in the category of Upper Division Clerk, the counsels argued that the same would not in any manner, affect his right to claim promotion directly to the grade of Junior Superintendent.

The counsels also submitted that in light of Statute 66 as well, an incumbent could claim promotion to a higher grade from any of the lower categories.

"There is no reason why the expression 'next lower categories' should be used in the provision and in its place, the Statute would have used the expression 'next lower category'," the counsel argued.

The counsel further submitted that the use of the phraseology "next lower category" was used in the provision to clarify that if there is a qualified person in the immediate next lower category, he would have to be preferred over those qualified in the categories below the immediate next lower category.

Findings of the Division Bench

The division bench considered the question that w​​hether from the expression "next lower categories" contained in Statute 66 alone, it could be inferred that promotion need not be from the immediate next lower category, but can be from any of the lower categories.

"Statute 66 is a provision in Chapter 3 of the Statutes dealing with the conditions of service of non-teaching staff in private colleges. Statute 66 is a general provision dealing with the manner in which the vacancies in all higher grades sanctioned to private colleges are to be filled up, in contradistinction to the vacancies in a particular grade sanctioned to private colleges. It appears to us that it is on account of the said reason that the expression "next lower categories" is used in the provision and from the said expression alone, it cannot be said that promotion need not be from the immediate next lower category," the court said.

The court added that its view is fortified by the use of the word "next" prefixed to the expression "lower categories" in the provision.

Ruling that Statute 66 enables an incumbent in a lower category to claim promotion only to the immediate next higher grade, the court allowed the appeal and set aside the judgment of single bench.

Case Title: State of Kerala & Ors v. M.V. Dines & Anr. 

Citation: 2022 LiveLaw (Ker) 573

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