IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 OP.No. 28188 of 2001(E) PETITIONER(S): UMMAR . M, LIBRARY ASSISTANT, MANNANIYA COLLEGE OF ARTS AND SCIENCE, PANGODE, THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY TO GOVT., HIGHER EDUCATION (D) DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM. 3. MANAGER, MANNANIYA COLLEGE OF ARTS AND SCIENCE, PANGODE, THIRUVANANTHAPURAM. 4. PRINCIPAL, MANNANIYA COLLEGE OF ARTS AND SCIENCE, PANGODE, THIRUVANANTHAPURAM. 5. AHMED FAZIL, L.D. CLERK, MANNANIYA COLLEGE OF ARTS AND SCIENCE, THIRUVANANTHAPURAM. 6. A. MOHAMMED BASHEER, CLERK, DO. DO. ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE FOR R6 SRI.V.A.MUHAMMED FOR R5 SRI.P.GOPALAKRISHNAN NAIR FOR R3 & R4 SRI.A.ABDUL KHARIM FOR R3 & R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/03/2009 THE COURT ON 21/05/2009, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 28188/2001. --------------------------------------------------------------- EXT.P1 TRUE COPY OF ORDER DT. 7-8-1995. EXT.P2 ORDER DT. 7-8-1996. EXT.P3 ORDER DT. 1-7-1996. EXT.P4 ORDER DT. 15-7-1999. EXT.P5 ORDER DT. 29-1-2000. EXT.P6 ORDER DT. 15-9-2001. EXT.P7 LETTER DT. 29-4-1998. EXT.P8 LETTER DT. 23-12-1998. EXT.P9 ORDER DT. 28-9-1998. EXT.P10 ORDER DT. 1-7-1996. EXT.P11 CIRCULAR DT. 24-3-1982. EXT.P12 ORDER DT. 21-7-1997. EXT.P13 B.A DEGREE CERTIFICATE. EXT.P14 ORDER DT. 18-3-2006 EXT.P15 CERTIFICATE DT. 3-11-1997. EXT.P16 CERTIFICATE DT. 23-4-1998. EXT.P17 CERTIFICATE DT. 15-11-1999. EXT.P18 CERTIFICATE DT. 27-12-2005. EXT.P19 LETTER DT. 24-9-1982. EXT.P20 ORDER DT. 14-3-1996. EXT.P21 ORDER DT. 10-5-1996. EXT.P22 ORDER DT. 13-3-2002. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R6(a) LETTER DT. 13-10-1999. EXT.R6(b) ORDER DT. 16-1-1975. EXT.R6(c) MINITES DT. 6-8-1995. EXT.R6(d) GOVT. ORDER DT. 23-3-1999 EXT.R6(e) ORDER DT. 13-9-2002. EXT.R6(f) ORDER DT. 22-12-2001. EXT.R6(g) ORDER DT. 26-10-1999. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 28188 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st May, 2009. J U D G M E N T In this original petition, the petitioner and respondents 5 and 6 contest for promotion to the post of L.D. Clerk in the Mannaniya College of Arts and Science, Pangode ('the College' for short), of which the respondents 3 and 4 are the Manager and Principal respectively. The facts necessary for disposal of the original petition are as follows: 2. The College is a newly started one, which started functioning in the year 1995-96. The Government sanctioned 16 non- teaching posts for the College which included one post of Laboratory Assistant, one post of Library Assistant and 7 posts of Last Grade Servants. The 3rd respondent invited applications for the posts. But, without noticing that the erstwhile posts of Attenders had been re- designated as Laboratory Assistant and Library Assistant, the 3rd respondent invited applications for two vacancies in the post of Attender. The petitioner applied for the posts of Attender and Last Grade Servant. He got selection to the post of Peon and was appointed as such. The respondents got selected as Attenders and were appointed as such. The appointment of the petitioner was approved as that of a Last Grade Servant by Ext. P10 order dated 1- 7-1996 of the Dy. Director of Collegiate Education with effect from 14- 3-1996. Subsequently, the 3rd respondent promoted the petitioner, provisionally to the post of Library Assistant by Ext. P2 order dated 7- 8-1996. That appointment was also approved by Ext. P12 order dated 21-7-1997 with effect from 7-8-1996. Prior to that, by Ext. P3 order dated 1-7-1996, the proposals forwarded by the 3rd respondent for approval of the appointments of respondents 5 and 6 were returned as rejected on the ground that they did not possess the required qualifications for the post of Lab/Lib. Assistants as prescribed in the O.P. No.28188/2001 -: 2 :- Kerala University Statutes. 3. In the meanwhile, two vacancies in the post of L.D. Clerk arose in the College on 3-6-1996 and 5-8-1996. The 3rd respondent promoted the 5th and 6th respondents to those vacancies. The petitioner filed a representation before the 2nd respondent claiming that as the only qualified hand in the feeder category, the petitioner is eligible for promotion to one of the vacancies of L.D. Clerk. By judgment dated 30-3-1999 in O.P.No. 8323/1999 filed by the petitioner, this Court directed the 2nd respondent to consider and pass orders on the said representation. In compliance thereof, the 2nd respondent passed Ext. P4 order dated 15-7-1999 directing the 3rd respondent to promote one Sri. Shahul Hameed, L.D. Typist, to the first vacancy and the petitioner to the second vacancy. Since the 3rd respondent did not comply with the said direction, the petitioner again approached the 2nd respondent and this Court . Pursuant to judgment dated 1-11-1999 in O.P.No. 26685/1999 of this Court , the 2nd respondent, by Ext. P5 dated 29-1-2000, informed the petitioner that his case has been referred to the Government for a decision, since final decision pursuant to the judgment in O.P.No. 23694/1999 filed by the 6th respondent is also pending with the Government. The Government, after hearing the petitioner and the 6th respondent, by Ext. P6 order dated 15-9-2001, directed as follows: “(i) Director of Collegiate Education will regularise the appointment of Shri Mohammed Basheer as Attender as a special case by extending the benefit given to Shri P.P. Mohanan subject to the condition that he should acquire the requisite qualification within four consecutive chances. (ii) Shri Ummer is also fully eligible for promotion to the cadre of L.D. Clerk and Director of Collegiate Education will ensure that his legitimate claim for promotion is protected when the Management exercises the power for appointment/promotion to the posts of Laboratory Assistant/Lower Division Clerk.” O.P. No.28188/2001 -: 3 :- The petitioner is challenging Ext. P6 order of the Government, seeking the following reliefs: “a. Issue a writ of certiorari or any other appropriate writ, direction or order quashing Ext. P 6. b. to declare that the appointment of respondents No. 5 and 6 as L.D. Clerk from 3/6/1996 and 5/8/1996 respectively in the 3rd respondent college is illegal and improper. c. to declare that the petitioner is entitled to be promoted to the post of LD clerk from 3/6/1996 in the 3rd respondent college. d. Issue a writ of mandamus or any other appropriate writ, order or direction to the 2nd respondent to approve the appointment of the petitioner as peon of the 3rd respondent college from 7/8/95 to 13/3/96 and also to disburse the salary and other benefits thereon.” By I.A.No. 3150/2007, the petitioner has sought amendment of the original petition adding the following prayer: “(d-1) Issue a writ of certiorari or other appropriate writ, order or direction calling for the records leading to Ext. P6 and quashing the same to the extent it directs regularisation of the appointment of the 6th respondent.” 4. The contention of the petitioner is that for direct recruitment to the post of Laboratory Assistant/Library Assistant, a pass in Attender's test is an essential qualification prescribed in the Kerala University Statutes, which respondents 5 and 6 did not possess, and relaxation from that qualification is available only to the last grade staff who possess the other qualifications, subject to passing the test in one of the five consecutive chances. He would further contend that the qualifications are prescribed by the University Statutes and the Kerala University Act and Statutes thereunder do not confer any power on the Government to direct regularisation of service of candidates appointed by a manager without such qualifications, O.P. No.28188/2001 -: 4 :- granting relaxation in qualifications. The petitioner further contends that even if relaxation could have been granted by the Government, it could not have been with retrospective effect, in which event the petitioner is senior to respondents 5 and 6 in the cadre of Lab Assistant/Lib. Assistant and therefore the petitioner is entitled to be promoted first in preference to respondents 5 and 6. 5. Neither the 1st respondent-State of Kerala, who passed Ext. P6 order nor the 2nd respondent-Director of Collegiate Education has filed any counter affidavit. Respondents 3 and 6 have filed counter affidavits justifying the appointments of respondents 5 and 6 as Lab. Assistant/Lib. Assistant. According to them, since the College was a newly started College, there could not have been any last grade servant qualified for promotion. Since the Public Service Commission had not conducted any Attender's test for the last two decades, there cannot be any person having that qualification for direct recruitment also. Therefore, according to them, the appointment of respondents 5 and 6 as Lab. Assistant/Lib. Assistant, relaxing the qualification and regularisation of such appointment is perfectly valid and proper. 6. Along with his reply affidavit, the petitioner has produced Ext. P9 dated 28-9-1998, to show that the Government themselves earlier took the view that, since the 6th respondent does not possess the qualifications prescribed in the University Statutes, it is not possible to approve his irregular appointment made by the management. According to him, therefore, Ext. P6 order relaxing qualifications for the purpose of approving the appointment of the 6th respondent is clearly unsustainable. 7. I have considered the rival contentions in detail. 8. It is not in dispute before me that the qualifications for the posts of Lab./Lib. Assistant and Lower Division Clerk are as prescribed in Statute 41 of Chapter 3 of the Kerala University O.P. No.28188/2001 -: 5 :- (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes 1979. The qualifications so prescribed read thus: “CHAPTER 3 Conditions of Service of Members of Non-Teaching Staff. 41. Qualification for appointments:- The minimum qualifications for the various categories of non-teaching staff in private colleges shall be as follows:- (1) xx xx (2) xx xx (3) xx xx (4) xx xx (5) Lower Division Clerk/ S.S.L.C or equivalent qualification Lower Division Store and with a pass in the Manual Keeper/Lower Division of Office Procedure for earning Accountant. the third increment. The non- clerical staff like Library/ Laboratory Assistants, Gasmen/ Specimen Collectors, last Grade Staff who have 5 years service with S.S.L.C and have passed the Clerical Test conducted by the Public Service Commission may be promoted on the basis of common seniority in lower cadre. Lower Division Typists with S.S.L.C and have passed Clerical Test conducted by the Public Service Commission may be promoted on the basis of common seniority in the lower cadre. Qualified hands if available, shall be given preference before recruiting persons from outside: Provided that the Lower Division Typist, Herbarium Keeper / Taxidermist, Library/Laboratory Assistants, Gasmen, Specimen Collectors, Attenders and Last Grade Staff who are either in regular permanent service or have put in 3 years of service as on 31-3-1971 are eligible for O.P. No.28188/2001 -: 6 :- appointment in the order of their seniority as L.D. Clerks. Their continuance as Lower Division Clerks shall, however, be subject to their passing in one of the four consecutive annul competitive tests conducted by the Public Service Commission for the low- paid employees for appointment as Clerks etc, after the commencement of the Statutes. Such of those who remain unqualified in the test even after the four consecutive chances shall be reverted to their original posts. In the case of any person whose promotion has already been approved by the Director of Collegiate Education before the commencement of these Statutes, such promotion shall be deemed to have been validly made. (6) xx xx (7) xx xx (8) xx xx (9) xx xx (10) xx xx (11) xx xx (12) Laboratory Assistants/ For appointment by transfer Library Assistants. from members of Last Grade Staff and Specimen Collectors employed in the Private College/Colleges. 1. Pass in Form III (Std. VII new) or equivalent. 2. Pass in Attenders Test conducted by the Public Service Commission. OR (i) Five years regular service under Private Colleges. (ii) Pass in Attenders Test O.P. No.28188/2001 -: 7 :- conducted by the Public Service Commission. Provided that the last grade staff who possess the qualifications mentioned above excepting pass in Attender's test and who were either in service on 31-3-1971 or who are in regular permanent service will be eligible for appointment in the order of seniority as Laboratory Assistants/Library Assistants. Their continuance as Laboratory Assistants/Library Assistants shall however be subject to their passing in one of the five consecutive Attender's Test conducted by the Public Service Commission for the last grade staff of the Private Colleges. Such of those who remain unqualified in the Attender's test even after five consecutive chances shall be reverted to their original posts and those who entered in service prior to 1-9-1972 shall be exempted from passing the Attenders test: Provided further that those who have been appointed as Laboratory Assistants/Library Assistants before 16-1-1975 by direct recruitment by the Educational Agencies concerned for want of qualified hands for promotion from among the last grade servants shall continue as such subject to the condition that they pass the eligibility test which the Public Service Commission may conduct in accordance with such orders as the Government may issue. xx xx xx” As is clear from the said Statute, the post of Lab./Lib. Assistant is to be filled by transfer from members of Last Grade Staff and Specimen Collectors. But Statute 66 provides thus: O.P. No.28188/2001 -: 8 :- “66. Filling up of vacancies:- Subject to the rules in force in similar Government Institutions regarding qualifications and method of appointment, the vacancies in the higher grades shall be filled up by promotion from the next lower categories, if qualified persons are available, according to seniority in the case on non-selection posts, and according to merit and seniority in the case of selection posts and if there are no candidates available for promotion to the higher grades, the posts shall be filed up by direct recruitment by inviting applications and selection by the management in the manner laid down in these statutes. Provided that the Library Assistants/Laboratory Assistants possessing the prescribed qualifications shall be eligible for promotion as IVth Grade librarian.” Therefore, if no candidates are available for such promotion, posts can be filled up by direct recruitment. Since the College was a newly sanctioned college, there were no last grade staff or Specimen Collector available for filling up the post by promotion. As such, direct recruitment to the post was in order. But, for such direct recruitment, the candidate should possess the qualifications prescribed in the Statute. Pass in Attender's test conducted by the Public Service Commission is an essential qualification prescribed for the post by the Statutes. Of course, relaxation from that qualification is granted to last grade staff, who possess the other qualifications, with the condition that they should pass the test in one of the five consecutive Attender's test conducted by the Public Service Commission for the last grade staff of the private colleges. However, such relaxation is not available for direct recruits as is clear from the 2nd proviso to the Statute, which restricts such relaxation only to Attenders appointed before 16-1-1975. Therefore, for direct recruits after 16-1-1975, pass in Attender's test is an essential qualification for appointment by direct recruitment to the post of Lab./Lib. Assistant. 9. Admittedly, respondents 5 and 6 did not posses the said qualification, when they were appointed as Lab/Lib. Assistants, by the O.P. No.28188/2001 -: 9 :- 3rd respondent. The very facts that their appointments were not approved and the Government themselves issued Ext. P6 order relaxing the qualification for the 6th respondent, abundantly make it clear that, that qualification was an essential qualification and respondents 5 and 6 did not possess the same. 10. Here, I find an anomaly in the stand of respondents 1 and 2. After refusing to approve the appointments of both respondents 5 and 6 by Ext. P3, by Ext. R6(e) produced along with C.M.P. No. 56036/2002 filed by the 6th respondent, the appointment of the 5th respondent has been approved although he also does not possess the qualifications, even without an order granting relaxation, as has been done in the case of the 6th respondent by Ext. P6, which was not permissible as per the Statutes. 11. The next question to be decided is whether it was proper for the 1st respondent to relax the qualification by passing Ext. P6 order. The counter affidavits filed in this case do not refer to any provision of law which enables the 1st respondent to grant such relaxation. Neither the Government Pleader nor the counsel for respondents 3 to 6 was able to point out any enabling provisions. I could not find any provisions in the Kerala University Act or the Statutes framed thereunder, which gives any power to any authority to relax the qualifications prescribed by the Statutes. The University of Kerala is an autonomous statutory body created by the Kerala University Act. Of course, the Statutes prescribing qualifications have been framed by the Government of Kerala. But, that itself does not give any power to the Government to relax such qualifications prescribed in the Statutes unless there is a specific provision in the Act or the Statutes empowering the Government to do so. This has been made amply clear in the decision of the Supreme Court in State of Kerala v. K. Prasad, [(2007) 7 SCC 140] in paras 10 and 11 thus: O.P. No.28188/2001 -: 10 :- “ . . . . . It needs little emphasis that the Rules are meant to be and have to be complied with and enforced scrupulously. Waiver or even relaxation of any rule, unless such power exists under the rules, is bound to provide scope for discrimination, arbitrariness and favoritism, which is totally opposed to the rule of law and our constitution values. It goes without saying that even an executive order is required to be made strictly in consonance with the rules. Therefore, when an executive order is called in question, while exercising the power of judicial review, the Court is required to see whether the Government has departed from such rules and if so, the action of the Government is liable to be struck down. 11. This Court in Shrilekhs Vidyarthi v. State of U.P., [1991] 1 SCC 212] held that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 and basic to the rule of law, the system which governs us, arbitrariness being the negation of the rule of law. Non- arbitrariness, being a necessary concomitant of the rule of law, it is imperative that all actions of every public functionary in whatever sphere must be guided by reason and not humour, whim, caprice or personal predilections of the persons entrusted with the task on behalf of the State and exercise of all powers must be for public good instead of being an abuse of power.” (underlining supplied) In view of the law as aforesaid, it is clear that unless there is a provision in law empowering the Government to relax the qualifications prescribed by the University Act and Statutes or any other law, the Government could not have validly relaxed the qualifications prescribed in Statute 41 quoted above. As I have already stated, none of the counsel could bring to my attention any provision of law which authorises the Government to relax such qualifications. 12. I note that the Government has granted the relaxation relying on its earlier decision to give similar relaxation to one Sri. P.R. Mohanan, of S.N.D.P. Yogam College, Ranni. Since I have held that the Government did not have power to relax qualifications, the relaxation granted to the said Sri. P.R. Mohanan itself is illegal. The O.P. No.28188/2001 -: 11 :- position of law that an illegal decision cannot give rise to a claim on the basis of discrimination is well settled. In Prasad's decision (supra), in paragraphs 13 and 14, the Supreme Court held thus: “13. We may now deal with the plea of the respondents that they have been discriminated against. It is true that Article 14 of the Constitution embodies a guarantee against arbitrariness but it does not assume uniformity in erroneous actions or decisions. It is trite to say that guarantee of equality being a positive concept, cannot be enforced in a negative manner. To put it differently, if an illegality or irregularity has been committed in favour of an individual or even a group of individuals, others, though falling in the same category, cannot invoke the jurisdiction of the writ courts for enforcement of the same irregularity on the reasoning that the similar benefit has been denied to them. Any direction for enforcement of such claim shall tantamount to perpetuating an illegality, which cannot be permitted. A claim based on equality clause has to be just and legal. 14. Dealing with such pleas at some length, this Court in Chandigarh Admn. v. Jagjit Singh [(1995) 1 SCC 745] has held that: (SCC p. 750, para 8) “If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court under Article 226 cannot be exercised for such purpose.” (emphasis in original) This position in law is well settled by a catena of decision of this Court (See Secy. Jaipur Development Authority v. Daulat Mal Jain, [(1997) 1 SCC 35 and Ekta shakti Foundation v. Govt. of NCT of Delhi, [(2006) 10 SCC 337]. It would, thus, suffice to say that an order made in favour of a person in violation of the prescribed procedure cannot form a legal premise for any other person to claim parity with the said illegal or irregular order. A judicial forum cannot be used to perpetuate the illegalities.” (underlining supplied) In view of that settled legal position, simply because Sri. P.R. Mohanan had been given an illegal benefit, the same benefit cannot O.P. No.28188/2001 -: 12 :- be extended to respondents 5 and 6 to perpetuate the said illegality. 13. The result of the above discussion is that Ext. P6 order in so far as it purports to grant relaxation in qualifications for appointment of Lab./Lib. Assistant to the 6th respondent is clearly without jurisdiction. Accordingly, Ext. P6 to the extent it grants such relaxation in qualification and consequent regularisation of the appointment of the 6th respondent is hereby set aside. 14. Even otherwise, respondents 5 and 6, nor the petitioner for that matter, could have been given promotion to the post of L.D. Clerk as on the date of occurrence of vacancy viz. 3-6-1996. All of them have service in the lower category only with effect from 14-8- 1995 and 14-3-1996. Here, I may note that in Ext. R6(c), the 5th respondent's appointment is seen approved with effect from 14-8- 1995. Although all of them were appointed in August, 1995, the 3rd respondent admits that the posts were sanctioned only as per G.O(Rt) No. 64/96/H.Edn. dated 14-3-1996 and E1-332777/1995 dated 3-6- 1996. Therefore, the appointment could not have been approved prior to 14-3-1996. Under Statute 41(supra), for appointment to the post of L.D. Clerk from among Lab/Lib. Assistants, 5 years' service is an essential service qualification. The petitioner and respondents 5 and 6, even if their appointment could have been regularised, would have acquired that qualification only on 14-3-2001. But since I have held that the appointment of respondents 5 and 6 as Lab./Lib. Attenders itself is illegal, they cannot even be considered for appointment to the post of L.D. Clerk. Therefore, the vacancies of L.D. Clerk should be held to be remaining vacant on 14-3-2001, when the petitioner acquired the minimum service qualification and became qualified for being considered for the post. As evidenced by Ext. P 14, the petitioner had passed the eligibility test for promotion as Attender held on 13-4-2005. As evidenced by Exts. P15 and P16, O.P. No.28188/2001 -: 13 :- the