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Sadanandan Pillai.K v. State of Kerala

Kerala HC23 Aug 2022WP(C)/5750/2019

Case brief

AI extract

What is this about?

The High Court quashed an order refusing to declare a petitioner's probation, holding that the University's reason based on invalid audit calculations reducing a fractional vacancy to zero was illogical. The court directed the University to declare the probation.

What did the court decide?

Set aside Ext.P4 and directed the University to declare the petitioner's probation and provide all resultant benefits within one month.

Sadanandan Pillai.K Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

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TUESDAY, THE 23^RD DAY OF AUGUST 2022 / 1ST BHADRA, 1944

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WP(C) NO. 5750 OF 2019

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PETITIONER:

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SADANANDAN PILLAI.K, ASSISTANT, SREE SANKARACHARYA, UNIVERSITY OF SANSKRIT, KALADY.

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BY ADV P.C.SASIDHARAN

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY, REPRESENTED BY ITS REGISTRAR-683574.

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BY ADVS. SRI.S.PRASANTH (AYYAPPANKAVU) SHRI.DINESH MATHEW J.MURICKEN, SC, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT, KALADY SRI.JOSHY THANICKAMATTAM, GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 5750 OF 2019

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JUDGMENT

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The petitioner says that he entered the services of the 2^nd respondent – Sree Sankaracharya University of Sanskrit (hereinafter referred to as

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‘the University’ for short), as a low-paid

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employee; and that after several representations and great effort, was promoted as Assistant Grade II. He points out that even though, originally, the University wanted to promote two persons, the Vice Chancellor gave permission only for his promotion and that this was approved by the University through order dated 07.09.2013.

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The petitioner says that the period of

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probation was completed in another one year’s time, but that it has not yet been declared solely because an Audit Objection has been raised against his promotion. He says that since his promotion

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was duly approved by the Syndicate of the

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WP(C) NO. 5750 OF 2019

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University, no Audit Objection could have been raised against it by any department of the Government; and hence that Ext.P 4 order of the University declining his request for declaration of promotion is illegal and unlawful.

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Sri.P.C.Sasidharan – learned counsel for the petitioner, further submitted that Ext.P4 has been issued by the University without proper application of mind because once they themselves admit that his client’s promotion was authorised and validly approved by its Syndicate, they could not have then resiled from it or refused declaration of his probation solely on account of

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subsequent invalid Audit Objections. He,

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therefore, reiteratingly prayed that Ext.P4 be set aside.

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4. Smt.Nayana Varghese – learned counsel representing the Standing Counsel for the University, submitted that her client has been

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WP(C) NO. 5750 OF 2019

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incapacitated from declaring the probation of the petitioner because the Government has refused to grant approval to his promotion; particularly because, in Ext.P4 itself, it has been shown that

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his promotion will be approved only with the concurrence of the Government. She submitted that, therefore, when the Government refused such

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concurrence, her client had no other option but to issue Ext.P4.

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– 5. Sri.Joshy Thanickamattam learned

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Government Pleader, submitted that the request of the University, for approval of promotion of the petitioner, has been declined through Ext.R1(a) dated 10.05.2019 and therefore, that the

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petitioner cannot assail Ext.P4. He added that

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there was no vacancy in the University, for being filled up under the 4% reservation, because the

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cadre strength being 21 only, a fraction, namely

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0.84, could alone be worked out; and that, going

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WP(C) NO. 5750 OF 2019

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by another Government Order – which, he admitted,

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has not been produced on record – same will have to be reduced to the next lowest full digit. He submitted that, therefore, going by the cadre strength of the University, petitioner could not have been promoted, because there is no vacancy to accommodate him.

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6. I have considered the afore submissions

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and have also gone through the materials on record.

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7. It is evident, going by the orders of the

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University, that the petitioner was granted promotion as Assistant, taking the cadre strength as 63, reckoning all posts of Assistant, Senior

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Grade Assistant and Assistant Section Officer as being one category. However, the Government takes the view that only the posts of Assistant could have been taken and that the cadre strength of

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such post is, therefore, only 21; thus, the one

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WP(C) NO. 5750 OF 2019

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available for reservation under 4% category being 0.84 only. It is also their case that when such a fraction is obtained, it will have to be reduced to the next lower digit and not to the higher one.

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8. However, I fail to understand how the Government says that the fraction has to be reduced to a lower full digit, when no document/ statutory Scheme has been produced on record in substantiation. Normally, when a fraction is obtained, it has to be enhanced to the next higher digit; and in this case, it would be “one”; in which event, the petitioner's appointment could not have been declined concurrence by the Government.

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That being said, the further question is whether 'concurrence' from the Government was necessary, as has been mentioned in Ext.P4, when the Syndicate of the University had resolved to promote the petitioner. Going by the applicable

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Statutes and Ordinances of the University, the Appointing Authority - which is also the Authority competent to order promotion - is the Syndicate of the University; and once they gave sanction for the promotion of the petitioner, normally, the Government would obtain no role against it, subject to other statutory criteria being satisfied.

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However, in the case at hand, as seen above, the Government has refused 'concurrence' only because the vacancy was, according to them, not one, but 0.84 – to be reduced to “zero”.

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In the afore circumstances and since I do not find any logic in reducing the fraction to a lower digit, I order this writ petition and set aside Ext.P4, to the extent to which the University has refused to declare probation of the petitioner in the post of Assistant.

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Consequently, the University shall declare the

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probation of the petitioner, but making sure that

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all other criteria and qualifications have been satisfied by the petitioner, within a period of one month from the date of receipt of a copy of this judgment; and all resultant benefits shall be made available to him without any further delay

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thereafter.

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Sd/-

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DEVAN RAMACHANDRAN JUDGE

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RR/akv

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WP(C) NO. 5750 OF 2019

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APPENDIX OF WP(C) 5750/2019

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PETITIONER EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE ORDER DATED 2.7.2007.

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EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE MEETING OF TEH 06/13 (128TH) OF THE SYNDICATE HELD ON 27.8.2013.

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EXHIBIT P3 TRUE COPY OF THE ORDER DATED 7.9.2013. EXHIBIT P4 TRUE COPY OF THE ORDER OF THE UNIVERSITY DATED 11.6.2018.

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EXHIBIT P5 TRUE COPY OF THE MEMO DATED 28.12.2018 ISSUED TO THE PETITIONER.

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EXHIBIT P6 TRUE COPY OF THE SALARY SLIP OF THE PETITIONER FOR THE MONTH OF JANUARY, 2019.

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RESPONDENT EXHIBITS

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EXHIBIT R1(a) TRUE COPY OF THE LETTER DATED 10.5.2019

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EXHIBIT R2(a) TRUE COPY OF THE LETTER NO.K.S.A/SSU/A4 -16/2018 DATED 26.02.2018 SENT BY THE JOINT DIRECTOR, KERALA STATE AUDIT DEPARTMENT TO THE 2ND RESPONDENT.

Sadanandan Pillai.K v. State of Kerala

Case brief

What is this about?

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Sadanandan Pillai.K v. State of Kerala

Case brief

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What did the court decide?

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