IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 WP(C).No. 10583 of 2007(I) -------------------------- PETITIONERS: ------------ 1. THE MANAGER OF COLLEGES, DIOCESE OF KOTHAMANGALAM, BISHOP'S HOUSE, KOTHAMANGALAM. 2. JINESH JOSEPH, MECHANIC(TECHNICAL STAFF) NEWMAN'S COLLEGE, THODUPUZHA. BY ADV. SRI.BABU VARGHESE SRI.MANJU ANTONEY RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, P.M.G. JUNCTION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER, SRI.T.T.MUHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) 10583/2007/I APPENDIX PETITIONER'S EXHIBITS: EXT. P1: COPY OF THE APPOINTMENT ORDER DATED 7.1.2002, APPROVED BY THE 2ND RESPONDENT. EXT. P1(A): COPY OF THE APPOINTMENT ORDER DATED 7.1.2003, APPROVED BY THE 2ND RESPONDENT. EXT. P1(B): COPY OF THE APPOINTMENT ORDER DATED 7.1.2004, APPROVED BY THE 2ND RESPONDENT. EXT. P1(C): COPY OF THE APPOINTMENT ORDER DATED 7.1.2005, APPROVED BY THE 2ND RESPONDENT. EXT. P2: COPY OF THE ORDER OF APPROVAL DATED 16.1.2004. EXT. P2(A): COPY OF THE ORDER OF APPROVAL DATED 14.11.2006, WITH GOVT. LETTER. EXT. P3: COPY OF THE MINUTES OF THE COMMITTEE FOR THE SELECTION OF MECHANIC HELD ON 27.8.2005. EXT. P4: COPY OF THE APPOINTMENT ORDER DATED 1.9.2005 ISSUED TO THE 2ND RESPONDENT. EXT. P4(A): COPY OF THE LETTER DATED 6.1.2006 SENT BY THE 2ND RESPONDENT. EXT. P4(B): COPY OF THE PROPOSAL DATED 10.2.2006 RE-SUBMITTED BY THE PRINCIPAL. EXT. P5: COPY OF THE REJECTIONO ORDER ISSUED BY THE 2ND RESPONDENT DATED 23.11.2006. EXT. P6: COPY OF THE REPRESENTATION DATED 13.12.2006 SUBMITTED BY THE 2ND PETITIONER TO THE 2ND RESPONDENT. EXT. P6(A): COPY OF THE RECOMMENDATION LETTER OF THE MANAGER TO THE 2ND RESPONDENT DATED 13.12.2006. EXT. P7: COPY OF THE RECOMMENDATION MADE BY THE 2ND RESPONDENT DATED 7.3.2007. EXT. P8: COPY OF THE ORDER NO.E3/2181/2006/COLL.EDN. DT.28.1.2006 OF THE 2ND RESPONDENT. EXT. P9: COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE 2ND PETITIONER. W.P.(C) 10583/2007/I EXT. P10: COPY OF THE ORDER G.O.(MS) NO.100/2005/H.EDN. DT.28.7.2005 OF THE GOVERNMENT. EXT. P11: COPY OF THE ORDER G.O.(MS) NO.119/04.H.EDN. DT. 17.9.2004 OF THE GOVERNMENT. EXT. P12: COPY OF THE CERTIFICATE DATED 3.8.2002 GIVEN BY THE PRINCIPAL, NEW MAN COLLEGE, THODUPUZHA. RESPONDENT'S EXHIBITS: EXT. R2(A): COPY OF G.O.(MS)119/2004/H.EDN. DATED 17.9.04. EXT. R2(B): COPY OF THE FIXATION STATEMENT OF THE PETITIONER'S COLLEGE. EXT. R2(C): COPY OF THE NOTIFICATION DATED 9.3.05 IN THE KERALA GAZETTE OF THE UNIVERSITY LAWS (AMENDMENT ACT). /TRUE COPY/ P.A. TO JUDGE JP S.SIRI JAGAN, J. ======================= W.P.(C) No. 10583 of 2007(J) ======================= Dated this the 8th day of January, 2008 JUDGMENT The petitioners are the manager and non-teaching staff of Newman's College, Thodupuzha. One Sri.N.C.John was occupying the post Mechanic in that college. He retired from service . In that vacancy the 2nd petitioner was appointed by the 1st petitioner with effect from 7.1.2002 on contract basis. He continued so upto 6.1.2005. That appointment was duly approved by the 2nd respondent. Thereafter a selection committee was constituted for the purpose of selecting a candidate for regular appointment to the said post occupied by the 2nd petitioner on contract basis. The 1st respondent nominated their representative to take part in the selection proceedings, who along with other members of the selection committee selected the 2nd petitioner, by Ext.P3 proceedings of the selection committee. Accordingly, the 2nd petitioner was appointed on regular basis with effect from 1.9.2005. The 2nd petitioner was so appointed by Ext.P4 order by 1st petitioner. W.P.(C) No. 10583/007/J -2- The proposal was forwarded to the 2nd respondent for approval. The same was returned by Ext.P4(a) on the ground that approval of his appointment can be considered only after the staff pattern is fixed for the college. Subsequently by Ext.P8, staff pattern is revised as per which there was one post of mechanic. Accordingly, proposal for appointment of the 2nd petitioner was again forwarded to the 2nd respondent for approval. The same was again returned by Ext.P5 order on the ground that as per the revised staff pattern there are 42 excess posts which are retained as supernumerary posts and only after all those 42 persons holding supernumerary posts are absorbed in regular service other regular appointments can be made. Petitioners' representation against the same was also rejected by relying on Ext.P11 Government order. The petitioner is challenging Exts. P5 and P11 Government orders. According to the petitioner, undoubtedly there is a post of mechanic in the college as certified by the Principal of the College. As evidenced by Ext.P12, there is no other existing staff in that college who is qualified to be appointed in the post of mechanic. Since the college is having chemistry and physics departments, the laboratories in those W.P.(C) No. 10583/007/J -3- departments cannot function without a mechanic. As such the post of mechanic in the college is an essential post which even going by the Exts. P7 and P11 orders cannot be carried out by any other existing staff of the college, in the absence of a qualified existing hand in the college, among the the persons holding supernumerary post. Therefore, the 2nd petitioner is entitled to approval of appointment to that post is the contention raised by the petitioner. 2. The respondents have filed a counter affidavit. In addition to relying on the Ext.P11 order. They have also produced by Ext.R2(a) along with counter affidavit. They also rely on Ext.P8 staff fixation order. According to them, as is clear from Ext.P11 order new appointments can be made in the college only after excess staff in the college holding supernumerary posts are accommodated in regular service. The Government Pleader would point out that as against 25 posts sanctioned as per the staff pattern in this college 65 non teaching staff are working and unless the excess staff have been duly absorbed in regular vacancies no new appointments can be made. They also raise the contention that the 2nd petitioner does not possess the W.P.(C) No. 10583/007/J -4- qualifications prescribed for the post. 3. I have considered the rival contentions in detail. It is true that as per the Government orders relied on by the respondents, in view of Ext.P8 staff fixation order no new appointments could have been made. Only after the existing persons holding supernumerary posts have been absorbed in regular service fresh appointments can be resorted to. But Ext.P11 order does not take into account a situation where among the supernumerary staff available there are no qualified persons to be accommodated in a particular post, especially when that posts requires technical expertise. Going by Ext.P8 staff pattern there cannot be no doubt that there is one post of mechanic. Ext.P12 proves that there is no person among the existing non-teaching staff who is qualified for carrying out the functions of a mechanic. Therefore, Ext.P11 Government Order cannot be put into practice in the case of a post of mechanic in the college of the 1st petitioner. Ext.P11 does not envisage such a situation. A college is meant for teaching students and any college where there are chemistry and physics departments, the laboratories have to be function. The laboratories cannot W.P.(C) No. 10583/007/J -5- function efficiently without a mechanic. There is no person qualified for being accommodated in the post of mechanic in the college among the existing supernumerary staff. Therefore, if the standards of education has to be suitably maintained, Ext.P11 order cannot be put into practice at least in the post of mechanic in the 1st petitioner's college. Therefore, I am of the opinion that without going into the validity of Ext.P11, the same should be read down to mean that in respect of posts for accommodation in which there are no qualified hands among the supernumerary posts, no fresh appointments can be made. Viewed in that manner in the absence of any person qualified to hold that post in the 1st petitioner's college, the 2nd petitioner's appointment is liable to be approved. 4. Of course, the Government Pleader would raise a contention that the 2nd petitioner does not possess the qualification prescribed for the mechanic. The 2nd petitioner's qualifications are Pre-degree, I.T.I. and 3 years' experience as Mechanic in a Government approved workshop. The qualification prescribed for the post is prescribed in statute 44 of part C of Chapter 45 of the Mahatma Gandhi University statutes 1997. W.P.(C) No. 10583/007/J -6- Serial number 7 relates to mechanic. The qualifications prescribed for direct recruitment therein are: "VIII standard with I.T.I. Qualification in the relevant trade. In the absence of I.T.I. certificate holders, those with experience as a mechanic or fitter in a well-equipped workshop for a period of three years with VIII standard Educational qualification." (underlining supplied) 5. The contention raised by the learned Government Pleader is that the 2nd petitioner's qualification of I.T.I. is in Electrical branch and what is prescribed in the statute is I.T.I. qualification in the relevant trade which would be mechanical branch. But the statute also says that in the absence of I.T.I. certificate holders those with experience as a mechanic or fitter in a well equipped workshop for a period of three years with VIIIth standard educational qualification is also eligible for recruitment. The 2nd petitioner was selected by a selection committee constituted with the nominees of the 1st respondent also. That being so, the respondents cannot now have a contention that there was other candidates who had the first qualification and therefore, the 2nd petitioner could not have been selected. The respondents have no case that among the W.P.(C) No. 10583/007/J -7- candidates considered for selection there was any candidate holding the first qualification. The petitioner had the alternate qualifications prescribed namely, experience of three years in a work shop. Therefore, as per the statute as it existed on the date of selection the 2nd petitioner was qualified for appointment to the post of mechanic. 6. The learned Government Pleader would contend that the qualifications have subsequently been revised by Ext.R2(a), as per which for the post of mechanic persons with an I.T.I. or Diploma in mechanical or electrical trade will be considered. But Ext. R2(a) cannot govern the situation in so far as it is only a Government order and the field is already occupied by the statute. It is settled law that an executive order cannot be pressed into service to decide the qualification which are settled by statutory Rules, without amending the Rules themselves. Therefore, I do not find any merit in that contention of the Government Pleader also. 7. In the above circumstances, Ext.P5 is quashed and the 2nd respondent is directed to approve the appointment of the 2nd petitioner as mechanic with effect from 1.9.05 onwards W.P.(C) No. 10583/007/J -8- and disburse salary due to him. Arrears shall be disbursed within a period of two months from the date of receipt of the bill forwarded by the Principal of the College. The writ petition is allowed as above. S.SIRI JAGAN, JUDGE jp