The petitioners entered service as Typists in the University of Kerala, herein after referred to as the 'University' for short. In course of time they were promoted to the category of Section Officer. Later, they were also promoted to the category of Section Officer- Higher Grade. Petitioners 1 and 2 retired from service on attaining the age of superannuation in September and November 2013 respectively. Petitioners 3 and 4 are however in service. As per the Kerala University First Ordinances, 1978, herein after referred to as the 'Ordinances' for short, the next promotion post for Section Officer is Pool Officer. The method of appointment is by promotion on the basis of seniority and merit. The post of Pool Officer was created in the University of Kerala by the Syndicate at its meeting held on 16.5.1988. Later the Ordinances were amended by notification dated 24.1.1989 after it received the assent of the Chancellor on 9.1.1989 and was published in the Kerala Gazette dated 28.2.1989. 2. The State Government had by G.O.(Ms) No.81/2010/Fin. dated 20.2.2010 entrusted the Ninth Pay Revision Commission to suggest modifications, if found necessary, for the pay and allowances of University employees except those posts covered by UGC/AICTE/Central Schemes. Before the Ninth Pay Revision Commission, various service organizations representing University employees pressed for Secretariat parity in the scale of pay to similar categories and posts in the Universities. The Ninth Pay Revision Commission submitted its report in the matter of revision of pay and allowances of University employees on 31.12.2010. One of the recommendations of the Ninth Pay Revision Commission was as follows:
16.27 Fair Copy Section The posts under Fair Copy Section in some of the universities start from the cadre of L.D.Typist to Pool Officer with identical scale of pay except the scale of pay of the post of U.D Typist in Calicut University and Office Superintendent of Kerala University and CUSAT. The prescribed qualification for L.D.Typist in Kerala University is Plus Two (or equivalent) plus K.G.T.E and in other Universities it is S.S.L.C plus K.G.T.E. The Office Superintendent post and Section Officer (FC&D) are in the same scale of pay of Rs.10790-18000. These two posts can be merged together and designated as Office Superintendent. The posts up to Office Superintendent are in parity with Secretariat Service. But it is seen that the University staff are enjoying two other promotions i.e; Section Officer (FC&D) Higher Grade and Pool Officer with scale of pay Rs.11910-19350 and Rs.12930-20250, which is more than the promotion prospects available in the Secretariat. No additional work or duty is seen assigned to Pool Officer/Section Officer/Section Officer Hr.Gr. Hence the Commission recommends as follows:
(i) Discontinue the practice of promotion of Office Superintendents as Section Officer (FC&D), Section Officer (FC&D Hr.Gr.) and Pool Officer which do not exist in the Secretariat. To avoid the drop in emoluments, the existing Office Superintendents may be allowed ratio promotion @1:1. the higher grade Office Superintendent may be assigned with a higher scale of pay corresponding to Rs.11910-19350. The total posts of the Office Superintendents, Section Officer (FC&D), Section Officer (FC&D) Hr.Gr. and Pool Officer shall be together as the total sanctioned strength of the Office Superintendents for assigning higher grades. All the present incumbents will be allowed to continue in their existing scale of pay as personal scale.
(ii) Enhance the scale of pay of Office Superintendent of Kerala University, SSUS and CUSAT, corresponding to Rs.10790-18000, for maintaining parity, from the existing scale of Rs.9590-16650.
(iii) Enhance the scale of pay of U.D.Typist of Calicut University corresponding to Rs.7990-12930 being the scale of pay of their counterparts in other Universities.
(iv) Number of Office superintendent may be regulated as per the norms applicable in Government service.
(v) The qualification for the entry post of LD Typist may be enhanced and fixed as Plus 2, +KGTE.
3. The Commission recommended that the practice of promoting Office Superintendent as Section Officer (FC&D), Section Officer (FC&D)Higher Grade and Pool Officer which do not exist in the Secretariat should be discontinued and existing Office Superintendent may be given ratio promotion in the ratio of 1:1. The Commission also recommended that all existing incumbents in the aforesaid categories and posts may be allowed to continue in their existing scale of pay treating it as personal scale of pay. The Commission also recommended enhancement of the scale of pay of Office Superintendent in Kerala University, Cochin University and Sree Sankara University of Sanskrit. The Government accepted the recommendations of the Commission with certain modifications and issued G.O.(P) No.86/2011/Fin. dated 26.2.2011. In Annexure (4) to the aforesaid Government order, a copy of the relevant portions which is on record as Ext.P4, the Government directed that the practice of promotion of Office Superintendent as SO(FC&D), SO(FC&D) Higher Grade and Pool Officer is discontinued. The Government further directed that employees holding the post of Pool Officer, SO(FC&D) and SO(FC&D) Higher Grade as on the date of the order are placed in the corresponding revised scales and that the corresponding revised scales will apply only to the incumbents holding the post as on the date of the Government order.
4. After the Government issued G.O.(P) No.86/2011/Fin. dated 26.2.2011 and G.O.(P) No.144/2011/Fin dated 30.3.2011, the Syndicate of the University that met on 23.8.2012 resolved as follows:
Item No.12.77 Pay Revision 2009 -rectification of anomalies continuance of the discontinued posts-revised proposals- submitted.
The Syndicate considered the revised proposals regarding rectification of anomalies and continuance of the discontinued posts in the pay Revision 2009.
RESOLVED that:
1. Posts and scale of pay permitted by the Government as per Pay Revision Order issued with effect from 1.2.2011 only need to be allowed to continue in the University.
2. In the category of Typists, the present staff pattern prevailing in the University will continue.
3. The special pay to Joint Registrar/Deputy Registrar be dispensed with since there is no provision for the same in the Pay Revision Order of 2009.
4. The excess amount drawn on this account is to be recovered but the matter be kept in abeyance for the time being. In the case of officials who have retired with the benefit of special pay after 1.7.2009, their pension may be revised urgently and the recovery of the excess amount they had drawn on account of special pay be kept in abeyance.
5. Those promoted to the post of Joint Registrar/Deputy Registrar temporarily on leave vacancies till May 2012 be given pay fixation in the promoted posts and pensionary benefits be released immediately.
6. All cases of anomalies pointed out under Item No.10156 and the decision of the meeting of the Syndicate held on 20.6.2012 be brought to the notice of the Government along with the above decisions and the Government be addressed to get permission for the employees already in service prior to 1.2.2011 to enjoy the current promotion prospectus and scale of pay already in existence.
5. The purport of the resolution is to the effect that the posts and scales of pay as permitted by the Government only need be allowed to continue in the University. However as regards Typists, the Syndicate resolved to continue the existing staff pattern. The petitioners and other employees of the University who were working in various cadres thereupon submitted Ext.P6 representation dated 15.11.2012 before the Honourable Chief Minister wherein they requested that promotion prospects may be protected. The instant writ petition was thereafter filed seeking the following reliefs:
i. issue a writ in the nature of mandamus or any other writ, order or direction commanding the 3rd and 4th respondents to make promotions to the post of Pool Officers in the University in accordance with the University Ordinance.
ii. Declare that notwithstanding the decision in Ext.P4 G.O. to discontinue the practice of promotion to the post of Pool Officer, the 3rd respondent University is bound to make promotions to the post of Pool Officer; till the University Syndicate takes a decision to abolish the post of Pool Officer and University Ordinance is suitably amended following the procedure known to law.
iii. Issue a writ in the nature of mandamus or any other writ, order or direction commanding 1st and 2nd respondents to consider Ext.P6 representation and take a decision thereon in accordance with law and after hearing the petitioners.
6. The principal contention raised in the instant writ petition is that the post of Pool Officer is a post which is provided for in the Ordinances which also sets out the qualifications and the method of appointment to the post and without suitably amending the Ordinances, the promotion prospects cannot be taken away. A counter affidavit dated 17.12.2013 has been filed on behalf of the State of Kerala. In paragraph 2 it is stated that one of the demands raised by the Registrars and representatives of service organizations of different Universities before the Ninth Pay Revision Commission was to sanction Secretariat parity in the scale of pay to similar categories of posts in the Universities. It is stated that the Ninth Pay Revision Commission after examining their claims interalia recommended grant of uniform scale of pay to similar posts in all the Universities and also recommended to dispense with the practice of giving more benefits to University employees than what is available in Government Department/Secretariat. It is stated that the Commission recommended to dispense with the practice of promoting Office Superintendents in Universities as Section Officer (FC&D), Section Officer(FC&D) Higher Grade and Pool Officer for the reason that these posts were not in existence in Government departments and no additional work or duties were assigned to the said posts. The counter affidavit proceeds to state that the Government accepted the aforesaid recommendations when it issued G.O.(P) No.86/2011/Fin. dated 26.2.2011 and G.O.(P)No.144/2011/Fin. dated 30.3.2011. It is stated that the Government have however permitted those employees who were promoted to the aforesaid categories of posts prior to 1.2.2011 to continue in the respective posts with revised scales. It is also stated that the benefit of pay revision extended to Government employees was extended to University employees also on the condition that no deviation should be allowed without Government consent. As regards Ext.P6 representation it is stated that it was forwarded to the Secretary to Government, Higher Education Department for detailed examination and it has not so far been received back from the second respondent.
7. A counter affidavit dated 10.10.2013 has been filed on behalf of the University of Kerala. Paragraphs 4, 5, 6 and 7 thereof which are relevant for the purpose of this case are extracted below for easy reference:
4. The promotional avenue open to typists and Confidential Assistants to the post of Section Officer by way of appointment by transfer (as in the Secretariat) was not available to the typing cadre of the University. Instead, they were allowed a separate promotional channel with the post of Pool Officer being equated to that of Assistant Registrar. It is submitted that typing posts are essential to the University for timely disposal of work relating to examinations which commence from preparation of nominal rolls to the declaration of results.
5. The Syndicate of this respondent University vide Ext.P5 proceedings resolved to continue the present staff pattern for typists, subject to the concurrence of the Government. However, there has been no specific opinion forthcoming from the Government with respect to the same. It is further submitted that as Government concurrence is required for effecting promotions to the post of Pool Officer, the University is not in a position to effect promotions as sought for.
6. While it is true that the post of Pool Officer and its feeder category posts are in existence as per the Ordinance, the Government vide Ext.P4 accepted Ext.P3 recommendation made by the Commission to discontinue the practice of promotion to the posts of Section Officer (FC & D), Section Officer (FC & D Hr. Gr.) and Pool Officer which do no exist in the Secretariat. This was brought into force with effect from 1.2.2011. As Ext.P4 order is in force, the practice of promotion to the posts of Pool Officer was discontinued. Again, as afore stated, the Syndicate vide Ext.P5 resolved to continue the present staff pattern for typists, subject to the concurrence of the Government. It is necessary to point out that the pay and allied matters of the University Employees were brought under the terms of reference of the Pay Commission as per G.O. No. (MS) 81/2010/Fin dated 20.02.2011 revising the pay scales and other allied matters of the University Employees. Therefore the University did not issue its own pay revision orders as was being done upto the 2004 pay revision. The Government pay revision orders issued on the basis of the 9th pay revision commission as per Ext.P4 is binding upon this respondent University as well as all the other Universities in the State. The University has therefore implemented the provisions of the pay revision order without issuing a separate University Order.
7. Though the decision of the Syndicate as per Ext.P5 was communicated to the Government vide Letter No.III.1.9900/2011 dated 12.9.2012 with a request for agreeing to the same, no response has been received yet. Though the University is in receipt of Ext.P6 representation, the University is not in a position to pass orders on the same for want of concurrence from the Government. Therefore, placing the above averments on record it is prayed to this Hon'ble Court to dismiss the Writ Petition as against this respondent.
In paragraph 4 it is stated that promotional avenue open to Typists and Confidential Assistants to the post of Section Officer as in the Secretariat was not available to Typists in the University, that they were allowed a separate channel of promotion to the post of Pool Officer which is equated to that of Assistant Registrar. It is also stated that typing posts are essential in the University for timely disposal of work relating to examinations. In paragraph 7 it is stated that after Ext.P4 Government order was issued, the practice of promoting Office Assistants to the post of Pool Officer was discontinued. As regards Typists it is stated that though the Syndicate of the University that met on 23.8.2012 resolved to continue the then existing staff pattern subject to the concurrence of the Government, the Government's concurrence has not been obtained.
8. I heard Sri.C.P.Sudhakaraprasad, learned Senior Advocate appearing for the petitioners, Sri.Sunil Cyriac, learned Special Government Pleader appearing for the State of Kerala and Sri.George Poonthottam, learned standing counsel appearing for the University of Kerala. I have also gone through the pleadings and the materials on record. The short question that arises for consideration in the instant writ petition is whether without amending the Kerala University First Ordinances, 1978 which sets out the scale of pay, age limit, minimum qualifications and method of appointment to various posts, the University of Kerala can contend for the position by reason of the pay revision orders which have been implemented, promotions to certain categories of posts cannot be effected. It is not in dispute that the post of Pool Officer was not a post which was originally in existence in the University. It was created, going by the stand taken by the University in its counter affidavit, to provide avenues of promotion to Typists and Confidential Assistants who did not have avenues of promotion beyond the post of Section Officer(FC&D). Though the post of Pool Officer was created by the Syndicate at its meeting held on 16.5.1988 the Ordinances were amended only with effect from 24.1.1989 after the Chancellor gave his assent to the amendment on 9.1.1989. The stand taken by the Government in its counter affidavit is that the pay revision orders which have led to the instant writ petition were issued based on the demands raised by the University employees themselves for Secretariat parity in the scales of pay. Yet another stand taken is that as the pay revision orders have been implemented by the University, its employees are bound by its terms. The stand taken by the Government cannot be in my opinion sustained. Section 36 of the Kerala University Act, 1974 stipulates that the Ordinances shall provide for fixation of the scales of pay of various posts in the University and the terms and conditions of service of officers of the University. Under Section 23 of the Act, the Syndicate of the University is empowered to create administrative, ministerial and other necessary posts, to appoint teachers and other employees of the University and to prescribe their duties. It is also empowered to make Ordinances and to amend or repeal the same. The procedure for making Ordinances as also for amending the Ordinances is contained in section 37 of the Act which reads as follows:
37.Procedure for making ordinances.- (1) All Ordinances made under this Act shall have effect from such date as the Syndicate may direct, but every Ordinance so made and the repeal of any Ordinance shall be laid before the Senate during its next succeeding meeting.
(2) If any Ordinance or repeal of an Ordinance is not laid before the Senate as required by sub-section (1), the Ordinance shall lapse or, as the case may be, the Ordinance repealed shall revived, after the next succeeding meeting of the Senate.
(3) Subject to the provisions of sub-sections (1) and (2), the procedure to be followed in making, amending or repealing Ordinances shall be prescribed by the Statutes.
(4) No Ordinance involving expenditure shall be valid or come into force until assented to by the Chancellor.
9. As stated earlier, the post of Pool Officer was incorporated in the Ordinances, pursuant to an amendment of the Ordinances after the assent of the Chancellor was obtained on 9.1.1989 and it was published in the Kerala Gazette dated 28.2.1989. The Ordinances have not thereafter been amended in the manner prescribed by the Act. A learned single Judge of this Court has in W.P.(C) No.11395 of 2007 held following the decision of a Division Bench of this Court in W.A. No.1908 of 2011 that unless and until the University Ordinances are appropriately amended, the alternate qualification stipulated as equivalent to the qualification prescribed in the Ordinances, by a Government order cannot be taken into account for the purpose of deciding the eligibility of employees concerned for appointment to a higher post. In S.N.College V. N.Ravindran (2001 (3) KLT 938) a Division Bench of this Court held that unless and until amendments are effected in the University statutes, the stipulations in the UGC scheme cannot be made applicable to private colleges and the managements are not bound to follow the stipulations in the UGC Scheme. It was held that since necessary amendments have not been incorporated in the University statutes the management of affiliated colleges is not bound to follow the same. In the light of the admitted fact that the Kerala University First Ordinances, 1978 has not been suitably amended to make it conform to the recommendations of the Ninth Pay Revision Commission, the Government cannot for the reason that it has decided to accept the recommendations of the Pay Revision Commission with certain modification, prescribe or stipulate that the posts contemplated in the Ordinances should not be filled up. Section 37 of the Kerala University Act prescribes the manner in which the Ordinances can be amended. That has admittedly not been done. That apart, the demand made by the University employees was for parity in the scales of pay to similar categories of posts in the Secretariat. They never demanded or sought abolition of the post of Pool Officer. Their only demand was that they should be given parity in the scale of pay as applicable to similar posts in the administrative secretariat. In such circumstances, I am of the considered opinion that neither the University nor the Government can refuse to fill up the posts of Pool Officer in the University in accordance with the provisions contained in the Kerala University First Ordinances, 1978. There is also yet another reason why I am constrained to take such a view. The University has no case that in the light of the recommendations of the pay revision commission which have been accepted by the Government, it proposes to amend the Ordinances and therefore it has taken a decision not to fill up the post of Pool Officer. I accordingly hold that the petitioners are entitled to succeed.
For the reasons stated above, I allow the writ petition and direct respondents 3 and 4 to fill up vacancies in the post of Pool Officer in accordance with the provisions contained in the Kerala University First Ordinances, 1978 and to consider the claim of the petitioners for promotion to such post. Needful in the matter shall be done and appropriate orders issued expeditiously and in any event within an outer limit of two months from the date on which the petitioners produce a certified copy of this judgment before the Registrar of the University. Needless to say, notwithstanding the fact that petitioners 1 and 2 have already retired from service, their claims shall also be considered.
rkc.
Sd/-
P.N.RAVINDRAN, JUDGE.