State Of Kerala And Ors vs Dr. A. Manoj

Shaffique, J

The State Government and its officers have preferred this Original Petition challenging order dated 19/2/2020 in OA No.2160/2018.

The respondent herein is the applicant before the Tribunal. He was appointed as Lecturer in Anatomy (Non Medical) as per the advice of Kerala

Public Service Commission (for short KPSC) in terms of order dated 20/11/2004. While so, he sought for deputation for undertaking Ph.D course. The

said request was rejected by the Government as per order dated 1/02/2008. The Government opined that the applicant should take leave without

allowance for the course period. However, the applicant obtained an interim order dated 7/2/2008 in IA No. 1811/2008 in WP(C) No.3229/2007 by

which he was permitted to join the Ph.D Course provisionally. It was further observed that the question of eligibility for leave and deputation can be

considered later. After the course, he rejoined duty as per the order issued by the Director of Medical Education on 24/2/2011. WP(C) No. 3229/2007

was transferred to the Kerala Administrative Tribunal. The Tribunal by its order dated 7/1/2014 directed the Director of Medical Education to

regularize the service of the applicants therein, if they were eligible untrammelled by the pendency of WP(C) No. 17590/2004. The applicant had filed

another writ petition as WP(C) No. 22297/2011 seeking for a direction to treat the period the applicant had undertaken for completing the Ph.D

Course for the purpose of Career Advancement Promotion (CAP). The Tribunal by order dated 7/1/2014 in TA No.228/2013 [WP(C) No.

22297/2011] directed the representation to be considered by the Government after obtaining comments from the Director of Medical Education.

Ext.P4 representation which was referred to in the judgment in TA No.228/2013 has been produced as Annexure A8. The relevant portion reads as

under:-

“During the time of court direction (dated 7.02.2008) the UGC scheme was not implemented by state govt. in medical education service.

Now Ph.D will be compulsory for non-medical teachers for their higher promotion and improving academic quality in medical education

service. According to MCI guidelines Ph.D has to be prerequisite for non-medical teachers for academic improvements and promotions.

Therefore I went for the course with permission of the Govt. and Hon'ble High Court. Since I am a permanent employee in an academic

institution under Kerala govt. the period I have been working for Ph.D will be eligible for service benefits. The thesis I have been

undergoing in Ph.D is medical cytogenetics which will definitely help the medical students as well as the public.

In this circumstance Ph.D will be necessary for non- medical teachers for improving their standards of teaching, academic brilliance and

career advancement promotion in medical education department. Therefore the period I worked as Ph.D scholar in Anatomy at JIPMER

(Institution of National Importance) under Ministry of Health and Family Welfare of Govt. of India as eligible period for getting career

advancement promotion. Hence I humbly request you consider my application and take necessary action and include me also for career

advancement promotion as Assistant Professor of Anatomy (NM) w.e.f 10/1/2011 onwards and I will be highly obliged if you give the

opportunity career advancement promotion.â€​

The request in Ext.P4 was to include him for career advancement promotion as Assistant Professor of Anatomy w.e.f. 10/1/2011. It seems that yet

another representation was submitted by the applicant as Annexure A9 dated 4/6/2014 wherein, in addition to claiming career advancement promotion,

he sought for sanctioning deputation benefits for the period of his study. The matter was considered by the Government and as per Annexure A10, the

Government disposed of Ext.P4 representation as directed by the Tribunal. Paragraphs 8 and 9 are relevant which reads as under;

“8) The Director of Medical Education as per letter read as 4th paper above has reported that Sri.Manoj joined Medical Education

Service as Lecturer in Anatomy (Non-Medical) on 10.01.2005. Hence he would have completed the 6 years teaching experience on

09.01.2011 but for his proceeding for acquiring Ph.D from 24.02.2008 to 25.02.2011. Before leaving for Ph.D, he had put in 3 years

teaching service as Lecturer in Anatomy (non medical). He acquired the Ph.D Degree on 04.08.2012. Hence on completion of 4 years

teaching service with Ph.D he becomes eligible for CAP as Assistant Professor under Clause 12(c) Annexure 1 to

GO(P)No.425/2009/H&FWD dated 14.12.2009 on 10.02.2012.

DME has reported that since his service was regularised with effect from 10.01.2005 FN, subject to the result of WP(C)No. 15478/2004 and

connected WP(C)No.17590/2014 filed by certain doctors challenging the appointment of Non-Medical teachers in Anatomy and that

WP(C)No.15478/2014 has been disposed without disturbing the appointment of the petitioner and other similarly placed whereas since the

other WP(C) is pending, any benefits can be given to him only subject to the result of WP(C)17590/2004 pending with Hon'ble High Court.

9) As per Clause 12(b) of Annexure 1 of GO(P)No.425/2009/H&FWD dated 14.12.2009, Ph.D is not a mandatory qualification for

promotion to the post of Assistant Professor of Anatomy (Non-Medical) as explained earlier. Hence his request for counting the period he

spent for pursuing Ph.D teaching service that qualifies for the grant of CAP as Assistant Professor does not merit consideration. The period

spent by Sri.Manoj for pursuing Ph.D at JIPMER can only be regularized as LWA under Rule 88, KSR Part I subject to the conditions that

the period of leave will not be counted for increment, Higher Grade Pension and accumulation for Earned Leave. The Ext P4 representation

is disposed of accordingly. The directions in the Order dated 07.01.2014 in TA No.228/2013 of the Hon'ble Kerala Administrative Tribunal

is thus complied with.â€​

The aforesaid order came to be challenged before the Tribunal by filing OA No.1569/2014. By order dated 12/1/2018, having found that for a

regular promotion to the post of Assistant Professor, a Non-Medical Lecturer requires Ph.D qualification, it was observed that the eligibility of the

applicant for being sanctioned the benefits under Rule 91A of Part I KSR was not considered. Further it was observed that the acquisition of Ph.D

necessarily implies acquisition of knowledge in the sphere of his duties which enhances his usefulness as a member of the Medical Educational

Department which in turn would benefit the service and enhances the faculty of the Government servant which also is a matter that is required to be

considered. Accordingly, after setting aside the Government Order dated 3/7/2014, the matter was remitted back for fresh consideration in the light of

the observations made by the Tribunal. The matter was again considered by the Government and by Annexure A21 order dated 12/9/2018, the claim

of the applicant was again rejected. The aforesaid order came to be challenged before the Tribunal once again and the Tribunal by its impugned order

dated 19/2/2020 allowed the original application. While allowing the original application, the Tribunal proceeded on the basis that the observations in

OA No.1569/2014 was not adverted in the impugned order and therefore direction was given to grant the deputation benefits with full pay and

allowances to the applicant during the period of his Ph.D course from 25/2/2008 to 25/2/2011.

Learned Government Pleader while impugning the aforesaid judgment submits that there is absolutely no basis for claiming deputation for

undertaking a course. As far as the applicant was concerned, there was no necessity for undertaking such a course as it would not render any benefit

to the institution as such.

On the other hand, learned counsel appearing for the respondent would submit that when 30% vacancies in the post of Lecturer, Anatomy, is

reserved for non-medical staff, and for promotion to the next higher post, Ph.D is a mandatory requirement, there is justification on the part of the

Tribunal to hold so.

Let us now have a re-look at the facts involved in the case. Though an interim direction was issued by this Court in IA No.1811/2008 in WP(C) No.

3229/2007 stating that the question of eligibility for leave and deputation of the applicant will be considered later, insofar as there was no such relief

sought for in the writ petition, while disposing of WP(C) No. 3229/2007, no further orders were passed in that regard. After the matter was

transferred to the Tribunal as TA No.67/2013, the Tribunal as per order dated 7/1/2014 did not consider any question relating to leave or deputation.

The only question considered was whether the applicants could be regularized in service. Accordingly, direction was given to regularize the

appointment of the applicants if they were otherwise eligible untrammeled by the pendency of WP(C) No. 17590/2004. Apparently, the question of

leave during the period of study did not arise for consideration.

However, in T.A.No.228/2013 [WP(C) No. 22297/2011], which was disposed on the very same day, when the matter came up for hearing, request

of the applicant was that the period during which he had undertaken Ph.D course should be treated as duty for the purpose of Career Advancement

Promotion for which he had submitted Ext.P4 representation. By virtue of the said order, Ext.P4 was directed to be considered, wherein the only

request was for treating the said period as duty for Career Advancement Promotion. There was no request for treating the said period as “on

deputationâ€. Ext.P4 representation alone was considered by the Government. While seeking grant of CAP, he also sought for a similar treatment of

deputation benefits granted to Doctors, nurses and para-medical staff of Medical Education Department for acquiring higher qualification. After

referring to Government Order dated 14/12/2009, it was held that as per the Career Advancement Scheme for teachers of non- medical categories,

Ph.D is not a mandatory qualification for promotion of the existing teachers or senior lecturers in the non- medical category. Therefore, acquisition of

Ph.D primarily benefits the incumbents in regard to their career prospects since it is not a mandatory qualification for the non-medical category. It was

held that the period spent by the applicant for pursuing Ph.D can only be regularized as leave without allowance under Rule 88 of Part I KSR subject

to the condition that the period of leave will not be counted for increment, higher grade, pension and acquisition of earned leave. When the aforesaid

order came to be challenged in OA No.1569/2014, the Tribunal did not favour with the said reasoning. The Tribunal referred to Circular

No.54/2005/Fin dated 27/9/2005 which was produced as Annexure A15, wherein deputation benefits were provided to Government servants to

undergo course of study if the Government is fully satisfied that the course is capable of widening the knowledge in a manner likely to improve their

abilities as a civil servant and to equip them better in the sphere of their duties and is of definite advantage to the Government. Circular further

clarifies that such deputation benefits would be allowed for undergoing course of study/training period prescribed for promotion to the posts in the

regular line of promotion of the post held by the employee. Tribunal found that insofar as for the post of lecturer, the applicant requires only a

postgraduate qualification, for further promotion to the post of Assistant Professor in the direct line of promotion, the candidate requires qualification of

Ph.D. It is also pointed out that as per Annexure A11 Government Order which prescribes qualification and teaching experience for teaching faculty

in Medical Colleges, Clause 1 in Appendix 1 indicates that all teachers must possess the basic qualification prescribed by the Indian Medical Council

except certain non clinical departments. It is further stated that non-medical teachers would be appointed to the extent of 30% of the total number of

posts in these departments. The Tribunal therefore found that Government did not consider Rule 91 or Rule 91A of Part I KSR. Further, Ph.D which

the applicant had undergone was in the subject Anatomy, which is a superior qualification.

The first question to be considered is whether applicant is entitled to treat the period during which he had undergone the Ph.D course as deputation.

The facts available in the case would disclose that the Government had denied him the said benefit of deputation as per order dated 01/02/2008. There

are three findings in the said order. One is that “it is not clear whether Lecturer (Anatomy) Non-medical is a feeder category to the post of

Assistant Professorâ€. Secondly, it was stated that the appointment of the applicant in the post of Lecturer was temporary and subject to result of writ

petitions filed as WP(C) Nos.17590/2004 and 15478/2004. Thirdly it was stated that Ph.D is not regular training/study sponsored by the department

and is not mandatory for higher promotion. Accordingly, the applicant was directed to take eligible leave/leave without allowance for the period of the

course. However, by filing IA No.1811/2008 in WP(C) No. 3229/2007, the applicant got an interim order to join the course provisionally and the Court

observed that the question of eligibility for leave and deputation can be considered later. But, as already pointed out, in the said writ petition which was

transferred to the Tribunal as TA No.67/2013, there was no such consideration. It is pointed out that no such relief was also sought for in the said writ

petition. The applicant filed yet another writ petition as WP(C) No. 22297/2011. On our request, the learned Government Pleader has placed before us

a copy of the said writ petition. The relief sought for in the said writ petition is only to treat the period during which the applicant was pursuing Ph.D

course as service for reckoning the total required service for grant of career advancement promotion. He did not seek for any deputation benefits. In

the representation which was produced in the said case as Ext.P4 also, he did not seek for any deputation benefits. Therefore, it is a case where claim

for deputation benefits was abandoned by the applicant at that point of time and what he sought for was only a claim for Career Advancement

Promotion by treating the period during which he had attended Ph.D course as service. But, while considering his representation pursuant to the

directions in TA No.228/2013, as per Government Order dated 3/7/2014, it was held that for CAP, Ph.D is not a mandatory qualification for promotion

of the existing teachers or Senior Lecturers in the Non-medical category and that the period spent by him for Ph.D course can be regularized as LWA

under Rule 88 of Part I KSR, subject to conditions enumerated thereunder. It is dissatisfied with the above order that the applicant filed OA

No.1569/2014 wherein again he took up a contention that he was denied deputation benefits for the period during which he pursued Ph.D course from

25/2/2008 to 25/2/2011 and also sought for a direction to reckon the above period under the Career Advancement Scheme for designation as Assistant

Professor. It is while considering the said OA that the Tribunal came to a finding that a Lecturer for promotion must possess Ph.D degree for a higher

teaching post as prescribed in Annexure A11 order dated 22/12/1976. But in Appendix 1 which prescribes the qualification, it only indicates that in

respect of Anatomy department, non-medical teachers will be appointed to the extent of 30% of the total number of posts in the department and they

should possess an approved post graduation qualification in the subject. A doctorate in the subject was only a preferable qualification. Tribunal further

proceeded to find that Government Order dated 23/6/2010 cannot be relied upon to deny the deputation benefits. Further, it was found that the period

of study undergone by the applicant if it is regularized as leave without allowance will prevent the applicant from reckoning the said period for Career

Advancement Programme and therefore, his eligibility to that extent requires to be considered under Rule 91 or Rule 91A of Part I KSR. After

observing that “the acquisition of Ph.D degree necessarily implies acquisition of knowledge in the sphere of his duties which enhances his

usefulness as a member of the Medical Education Departmentâ€, the Tribunal directed reconsideration of the matter. However, in the present

impugned order in OA No.2160/2018, the Tribunal did not consider any of these aspects whereas the Tribunal proceeded on the basis that the

observations in paragraphs 13 to 16 had not been complied with.

It is apparent that in OA No.1569/2014, the Tribunal did not decide any of the issues in the proper perspective. As already mentioned, the Tribunal

only stated that the Government Order dated 23/6/2010 (GO(Rt) No.2469/2010/H & FWD) does not apply, and the eligibility of the applicant is to be

considered under Rule 91 or Rule 91A of Part 1 KSR and further it was observed that Ph. D degree implies acquisition of knowledge.

The fundamental question that is required to be considered in the above case is (i) regarding the claim for deputation and (ii) claim for Career

Advancement Promotion. As far as deputation is concerned, there is no rule as such. What is relied upon is a circular dated 27/9/2005, which reads as

under:-

“GOVERNMENT OF KERALA

Finance (Rules) Department

CIRCULAR

No. 54/2005/Fin. Dated, Thiruvananthapuram, 27th September, 2005. Sub- Deputation for Course of Study/Training-Instructions issued.

Deputation benefit with full pay and allowances are allowed to Government servants to undergo course of study, if Government are fully

satisfied that the course is capable of widening their knowledge in a manner likely to improve their abilities as a civil servant and to equip

them better in the sphere of their duties and of definite advantage to Government. Accordingly Government have approved schemes for

allowing deputation benefits to College Teachers coming under UGC/AICTE package, Doctors and Para medical staff under Health Sector,

Engineers etc. for higher studies.

Several requests are now being received from many other categories of employees for allowing deputation benefit with full pay and

allowances for undergoing courses/training solely intended to enhance their promotion prospects in the service to which they belong as

special rules for their service provide for transfer appointment to higher post, outside their regular line of promotion, to those in the lower

categories of post possessing additional qualification. Undergoing any course of study/training for acquiring qualification purely for the

betterment of future prospects of employees at Government expense cannot be supported.

Government therefore wish to clarify that deputation benefit will be allowed only for undergoing course of study/training prescribed for

promotion to posts in the regular line of promotion of the post held by the employees and also in cases where approved scheme exists for

such deputation. wish to acquire any qualification/training for getting appointment to higher post outside their normal line of promotion by

any mode of appointment shall undergo the course on their own accord after availing eligible leave/Leave Without Allowances.â€​

But the Government had already denied the benefit of deputation to the applicant as per order dated 01/2/2008 and it was not under challenge within a

reasonable time. Initially it has to be verified whether there was delay and laches in challenging Annexure A2 order dated 01/02/2008 in which event,

the applicant will not get any benefit. Secondly, it has to be considered whether the applicant is entitled for any benefit of Career Advancement

Promotion.

We are of the view that the observations made by the Tribunal with reference to the order in OA No.1569/2014 was not enough to consider the

matter afresh. The contention of the Government ought to have been considered taking into consideration the respective pleadings. There was no

finality in the observation made by the Tribunal in the order in OA No.1569/2014 and therefore, it was not proper on the part of the Tribunal to have

set aside Annexure A21 order and allowed the claim without considering the respective contentions of the parties. We are of the view that this is a fit

case which requires to be remitted back for fresh consideration by the Tribunal.

Original Petition is therefore allowed. The order dated 19/2/2020 in OA No.2160/2018 is set aside and the matter is remitted back to the Tribunal for

fresh consideration. Parties are free to place additional materials, if any, before final hearing of the case.