Wp(C)/27017/2017 Of Dr.jee G v. The Income Tax Officer And Another [(1976) 1 Scc 906

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 11TH DAY OF APRIL 2018 / 21ST CHAITHRA, 1940 WP(C).No. 27017 of 2017----------------------- PETITIONER(S):-------------- 1 DR.JEE G, AGED 51 YEARS, S/O K.S. GOPAKUMARAN NAIR,"LAKSHMI" (H), KIDANGOOR P.O,VENGOOR, ANGAMALY, ERNAKULAM - 683572.2 SRI.SUNI K.P,AGED 42 YEARS, S/O LATE K P PAPPU,KALLUNGAL (H), MATTOOR, KALADY,ERNAKULAM - 683574.3 SRI.PRASAD S.S/O V.K. SEKHARAN NAIR, AGED 43 YEARS,DEVIKRIPA(H), KIDANGOOR PO,ANGAMALY, ERNAKULAM - 683572. BY ADVS.SRI.LIJU.V.STEPHEN SMT.INDU SUSAN JACOB RESPONDENT(S):------------- 1. STATE OF KERALA,REPRESENTED BY SECRETARY,HIGHER EDUCATION DEPARTMENT,THIRUVANANTHAPURAM-695001.2. THE SECRETARY,DEPARTMENT OF COLLEGIATE EDUCATION,6TH FLOOR, VIKAS BHAVAN, PALAYAM,THIRUVANANTHAPURAM, KERALA - 695033.3. MAHATMA GANDHI UNIVERSITY,REPRESENTED BY ITS REGISTRAR,MAHATMA GANDHI UNIVERSITY,PRIYADARSHINI HILLS PO,ATHIRAMPUZHA, KOTTAYAM - 686 662.4. SREE SANKARA COLLEGE,MANAGEMENT, KALADY - 683572,REPRESENTED BY ITS MANAGING DIRECTOR. WP(C).No. 27017 of 2017 (B) -------------------------- 5. THE PRINCIPALSREE SANKARA COLLEGE,KALADY - 683572. *ADDL. R6 IMPLEADED 6.THE UNIVERSITY GRANTS COMMISSION(UGC), BAHADUR SHAH ZAFAR MARG, NEW DELHI - 110 002, REPRESENTED BY ITS SECRETARY. ADDL. R6 IS IMPLEADED AS PER ORDER DATED 25.08.2017 IN IA.13695/2017. R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI.P.M. MANOJR3 BY SRI.ASOK M. CHERIAN, SCR4 & R5 BY ADVS. SRI.M.N.RADHAKRISHNA MENON SRI.JOSEPH SEBASTIAN (PARACKAL)ADDL. R6 BY SRI.S.KRISHNAMOORTHY, CGC mbr/ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-03-2018 ALONG WITH WPC.28185/2017 & WPC.41548/2017,THE COURT ON 11-04-2018 DELIVERED THE FOLLOWING: -------------------------- APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE RELEVANT PAGES OF APPENDIX III OF THE ABOVE UGC REGULATION, 2010.EXHIBIT P2 A TRUE COPY OF THE NOTIFICATION NO.AC.L/1/2017 DATED 23/2/2017 ISSUED BY THE RESPONDENT UNIVERSITY.EXHIBIT P3 A TRUE COPY OF THE PBAS PROFORMA FOR PROMOTION ISSUED BY THE RESPONDENT UNIVERSITY.EXHIBIT P4 A TRUE COPY OF THE CIRCULAR DATED 29/6/2017 ISSUED BY THE RESPONDENT UNIVERSITY.EXHIBIT P5 A TRUE COPY OF THE CIRCULAR DATED 15/7/2017 ISSUED BY 4TH RESPONDENT.EXHIBIT P6 A TRUE COPY OF THE G.O(P) NO.23/2016/HEON DATED 15/12/2016 ISSUED BY 1ST RESPONDENT. ANU SIVARAMAN, J. = = = = = = = = = = = = = = = W.P.(C).Nos.27017, 28185 & 41548 of 2017 = = = = = = = = = = = = = = = Dated this the 11[th] day of April, 2018 JUDGMENT 1. Petitioners in these writ petitions are Assistant Professors inaided colleges affiliated to the Mahatma Gandhi University.They challenge the orders issued by the University to theextent the API score based Performance Based AppraisalSystem for career advancement of teachers is made applicableretrospectively from 18.9.2010. The amendment issued by theMahatma Gandhi University on 23.2.2017 and order dated29.6.2017 are also under challenge. It is the contention of thepetitioners that the API score based Performance basedAppraisal System for Career Advancement had been providedfor in the 2010 UGC Regulations. However, the Regulationsspecifically provided that the Universities have to either adoptthe criteria as provided in the Regulations or notify the samewith suitable modifications to make the same applicable. It isstated that without issuing any such notification, theUniversity has taken steps for operating the Performance W.P.(C).No.27017/17 & con.cases W.P.(C).No.27017/17 & con.cases based Appraisal System with retrospective effect from18.9.2010 by Ext.P2. It is contended that no objectiveperiodical recording of performance had been made either bythe colleges or by the University and therefore therequirement directing the petitioners to make available theAPI scores for evaluation for the purpose of granting thempromotion is completely unsustainable and that the petitionersare entitled to promotions on the basis of the completed yearsof service alone as was done before the Regulations werebrought into force. 2. The learned counsel for the petitioners relies on decisions ofApex Court in Govind Das and others v. The Income TaxOfficer and another [(1976) 1 SCC 906[, State of RajasthanApex Court in Govind Das and others v. The Income TaxOfficer and another [(1976) 1 SCC 906[, State of Rajasthan v. Basant Agrotech (India) Ltd. 3. A detailed counter affidavit has been filed by the Universitywherein it is contended that the UGC Scheme had beenapproved by the Government w.e.f. 18.9.2010 and thepetitioners are claiming the benefits of higher pay scale andwherein it is contended that the UGC Scheme had beenapproved by the Government w.e.f. 18.9.2010 and thepetitioners are claiming the benefits of higher pay scale and emoluments on the basis of the Scheme. It is contended thatthe University had adopted the Scheme and notified therequirements of the Scheme by University letter dated1.8.2011 and Exhibit P2 is only an amendment to the same. Itis therefore contended that the norms for preparation of APIscore is introduced for the first time with retrospective effectfrom 18.9.2010 is factually incorrect. It is stated that theScheme had been notified as early as on 1.8.2011 and Ext.P2only changes its date of application from 31.8.2008 to18.9.2010. It is further contended that a Full Bench of thisCourt has held that all the provisions of the UGC Regulationsare applicable to all Universities, Colleges and teachers whoare covered by such Regulations without any specific adoptionof the same by the University concerned and that thereforethe contentions raised is completely untenable. 4. Heard the learned counsel for the petitioners, learnedstanding counsel for the University, the learned counselappearing for the College Managements.standing counsel for the University, the learned counselappearing for the College Managements. 5. It is clear that the UGC Regulations have been accepted by the Government of Kerala with effect from 18.9.2010. Thepetitioners would therefore be entitled to the higher pay scalesand service conditions as is provided in the Regulations. Theytherefore have to comply with the requirements of theRegulations for the purpose of promotions under CareerAdvancement Scheme as well. The petitioners cannot contendthat they are entitled to the benefits but are not bound tocomply with the conditions for the grant of such benefits. It isclear from Ext.P2 itself that the Scheme for CareerAdvancement Promotions had been notified by the Universityon 1.8.2011 and Exhibit P2 is only an order issued inamendment of the Schemes so notified. The contention thatExhibit P2 amounts to a retrospective notification of therequirements of the Scheme is therefore completely untenable.The date of effect of the Career advancement Scheme byemploying the Performance Based Appraisal Scheme has beenchanged from 31.8.2008 to 18.9.2010, that is the date fromwhich UGC Scheme had been approved by the government ofKerala. W.P.(C).No.27017/17 & con.cases W.P.(C).No.27017/17 & con.cases 6. I find no illegality or irregularity in requiring theimplementation of the UGC Scheme with effect from the dateof its acceptance by the State Government. The decisionsrelied on by the learned counsel for the petitioner to contendthat retrospective operation of a provision which creates newobligations or affects existing rights unless specificallyempowered by law have no application in the instant case.Ext.P3 would show that what was sought to be recorded is onlythe requirements as has been provided in the Scheme and thecontention of the petitioner that it is impossible to record thedata as provided in the proforma is completely untenable, inview of the fact that the petitioners were duty bound tomaintain records and submit annual performance reports interms of the scheme. 7. The challenge against Exhibits P2 and P4 therefore fail. Thesewrit petitions are accordingly dismissed. It is made clear thatin case the petitioners have not submitted the proforma forPerformance Based Appraisal Scheme for promotion, they willwrit petitions are accordingly dismissed. It is made clear thatin case the petitioners have not submitted the proforma forPerformance Based Appraisal Scheme for promotion, they will sj be granted one month time from the date of receipt of a copyof this judgment to submit the same and their claims forpromotion shall also be considered in accordance with law. sd/- Anu Sivaraman, Judge