IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 OP.No. 12504 of 2003(L) ------------------------------------ PETITIONER: -------------------- KRISHNAKUMARI M.P., COMPOSITOR GRADE I, KERALA UNIVERSITY PRESS, TRIVANDRUM. BY ADV. SRI.N.NANDAKUMARA MENON SRI.K.VINODKUMAR SRI.P.K.MANOJKUMAR SMT. LAKSHMI N.MENON RESPONDENTS: ------------------------- 1. THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, TRIVANDRUM. 2. THE SUPERINTENDENT, KERALA UNIVERSITY PRESS, TRIVANDRUM. 3. P.S.SANTHAMMA, JUNIOR FOREMAN (COMPOSING), UNIVERSITY PRESS, KERALA UNIVERSITY, PALAYAM, TRIVANDRUM. R1 & R2 BY ADV. SRI.M.K.CHANDRAMOHAN DAS,SC,KERALA UTY. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR SRI.S.GOPAKUMARAN NAIR, SC KERALA UTY. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON 09/04/2008 DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.21304/2003 IN O.P.NO.12504/2003 L DISMISSED 09/04/2008 SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.AD.DIII.2.1712/93 DTD.5/08/1997 ISSUED BY THE 1ST RESPONDENT UNIVERSITY. EXT.P2: COPY OF THE ORDER NO.AD.DIII.2.24651/2002 DTD. 5/10/2002 ISSUED BY THE 1ST RESPONDENT. EXT.P3: COPY OF THE RELEVANT EXTRACT OF THE S.S.L.C. EXAMINATION CERTIFICATE OF THE PETITIONER REGISTER NUMBER 314452 DTD. MARCH 1985. EXT.P4: COPY OF THE CERTIFICATE REGISTER NO.512/1990 SERIAL I NO.014802 DTD. 27/07/1991 ISSUED BY THE BOARD OF TECHNICAL EXAMINATIONS KERALA. EXT.P5: COPY OF THE CERTIFICATE M.G.T.E.(COMPOSING) HIGHER DTD. 26/01/1992 ISSUED BY THE ADDITIONAL SECRETARY, DIRECTOR OF GOVERNMENT EXAMINATIONS, MADRAS. EXT.P6: COPY OF THE CERTIFICATE REG.NO.14151/97 DTD.16/6/1998 ISSUED BY THE SHRAMIC VIDYAPEED, TRIVANDRUM. EXT.P7: EXTRACT OF THE SCHEDULE CONTAINED IN THE 1ST ORDINANCES, 1978 DTD. 28/01/1999 IN THE KERALA UNIVERSITY. EXT.P8: COPY OF THE REPRESENTATION DTD. 3/3/2003 SUBMITTED BY THE PETITIONER TO THE REGISTRAR OF THE 1ST RESPONDENT. EXT.P9: COPY OF THE REPRESENTATION DTD. 3/3/2003 SUBMITTED BY THE PETITIONER TO THE REGISTRAR OF THE 1ST RESPONDENT. EXT.P10: COPY OF THE FORWARDING LETTER NO.KUP/ESTT/2003 DTD. 14/03/2003 ISSUED BY THE SUPERINTENDENT, UNIVERSITY PRESS TO THE 1ST RESPONDENT. EXT.P11: COPY OF THE ORDER NO.AD.D.III.2.24651/2002 (2) DTD. 17/03/2003 ISSUED BY THE 1ST RESPONDENT. Kss ..2/- ...2..... O.P.NO.12504/2003 L EXT.P12: COPY OF INWARD REGISTER KEPT IN THE UNIVERSITY FOR RECORDING THE RECEIVED PAPERS. EXT.P13: COPY OF ORDER G.O.(MS) 2/94/P&ARD DTD. 6/1/1994 BY THE GOVERNMENT OF KERALA. EXT.P14: COPY OF THE RELEVANT PAGES OF PETITIONER SERVICE BOOK SHOWS THE QUALIFICATION. 1ST RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF THE ORDER DTD. 15/03/2003 NO.AD.AIII.1/G/58621/03 ISSUED BY THE UNIVERSITY. EXT.R1(B): COPY OF THE ORDER DTD. 9/4/1990 G.O.(P) NO.7/90/P&ARD ISSUED BY THE GOVERNMENT OF KERALA. EXT.R1(C): COPY OF THE NATIONAL APPRENTICESHIP CERTIFICATE ISSUED TO THE 3RD RESPONDENT BY THE NATIONAL COUNCIL FOR TRAINING IN VOCATIONAL TRADES. EXT.R1(D): COPY OF THE ORDER DTD. 13/06/1983 G.O.(P) NO.134/83/GAD ISSUED BY THE GOVERNMENT OF KERALA. 3RD RESPONDENT'S EXHIBITS: EXT.R3(A): COPY OF THE NATIONAL APPRENTICESHIP CERTIFICATE ISSUED TO THE 3RD RESPONDENT. EXT.R3(B): COPY OF THE G.O.(P) NO.7/90/P&ARD DTD. 9/04/1990. /TRUE COPY/ P.S.TO JUDGE Kss P.N.Ravindran, J. ================ O.P.No.12504 of 2003 ================ Dated this the 9th day of April, 2008. JUDGMENT The petitioner entered service as Compositor Grade II in the Kerala University Press on 19.6.1997. She was promoted as Compositor Grade I with effect from 13.9.2002 in the vacancy that arose on the promotion of Smt.Vasanthy Subbayyan, the incumbent of that post, as Compositor, Senior Grade. The petitioner possesses besides a pass in S.S.L.C. Examination, a pass in the K.G.T.E. Certificate (Lower), Printing, Composing and Binding, M.G.T.E. (Higher) (Composing) and K.G.T.E. Certificate (Printing). The petitioner claims that she is qualified and eligible to be appointed as Junior Foreman (Composing) in the Kerala University Press. 2. A vacancy of Junior Foreman (Composing) arose in the Kerala University Press on 1.12.2002 consequent on the promotion of the incumbent, Smt.Vimala, as Senior Foreman (Composing). The petitioner staked her claim for the said post in OP 12504/03 -: 2 :- Exts.P8 and P9 representations dated 3.3.2003 submitted to the Registrar of the Kerala University. The representations were submitted through the Superintendent of the Kerala University Press, who forwarded them to the Registrar of the Kerala University along with Ext.P10 letter dated 14.3.2003. However, by Ext.P11 order passed on 17.3.2003 the University of Kerala, hereinafter referred to as the "University" for short, promoted the third respondent to the post of Junior Foreman (Composing). Hence, this original petition seeking the following reliefs: "i. To issue a writ of certiorari or other appropriate writ order or direction to quash Ext.P11 order in so far as it relates to the promotion of the third respondent to the post of Junior Foreman (Composing) in the Kerala University Press; ii. To issue a writ of mandamus or other appropriate writ order or direction to declare that the petitioner is entitled to be promoted to the post of Junior Foreman (Composing) in the Kerala University Press with effect from 1.12.2002 the date of occurrence of vacancy; iii. To issue a writ of mandamus or other appropriate writ order or direction directing respondents 1 and 2 to consider the petitioner for OP 12504/03 -: 3 :- promotion to the post of Junior Foreman (Composing) in the Kerala University Press with effect from 1.12.2002;" 4. The petitioner contends that the third respondent does not possess KGTE/MGTE Certificate (Higher) in Composing which is one of the essential qualifications prescribed in the Kerala University First Ordinances, 1978, hereinafter referred to as the "Ordinances" for short, for appointment to the post of Junior Foreman (Composing) and therefore, she is not qualified to be appointed to the said post. The petitioner further contends that she possesses all the qualifications prescribed in the Ordinances and is therefore eligible to be promoted as Junior Foreman (Composing) in preference to the third respondent. 5. In the counter affidavit filed on behalf of respondents 1 and 2, it is contended that the next available promotion post to the petitioner, who is Compositor Grade I, is Compositor, Senior Grade and not Junior Foreman (Composing), that the method of recruitment to the post of Junior Foreman is by promotion from qualified persons in the concerned section or by direct recruitment, that as per the Ordinances, the qualifications OP 12504/03 -: 4 :- prescribed for the post of Junior Foreman are a pass in S.S.L.C. Examination with K.G.T.E./M.G.T.E. (Lower) in Composing, Printing and Binding and Higher Grade in the concerned subject, with 18 months experience in a printing establishment, that the Syndicate of the University had at its meeting held on 7.3.2003 resolved to accept Ext.R1(a) government order dated 9.4.1990 whereby the State Government clarified in consultation with the Kerala Public Service Commission that the National Apprenticeship Certificate in Printing with the trade groups mentioned therein will be accepted as an alternative qualification to K.G.T.E. Certificate (Higher) in Printing, that by Ext.R1(c) order dated 13.6.1983 the State Government had accepted the National Apprenticeship Certificate in Printing as an alternative qualification to K.G.T.E. Certificate (Higher) in Printing, that the third respondent had undergone Apprenticeship Training and passed the trade test in 1981 and therefore, she possesses the qualifications prescribed for the post of Junior Foreman. It is further contended that as per the University rules and the practice adopted in the University in making appointments, whenever a degree/examination is recognised, it will apply to the OP 12504/03 -: 5 :- degree or examination irrespective of its date of issue or award and that as the University has on 7.3.2003 recognised the National Apprenticeship Certificate in Printing as an alternative qualification to K.G.T.E. Certificate (Higher) in Printing it applies irrespective of the point of time at the time the certificate was issued and therefore, the third respondent is qualified and eligible to be promoted to the post of Junior Foreman. It is also contended that as per the Kerala University Act, 1974, the Kerala University First Statutes, 1977 and the Kerala University First Ordinances, 1978, the Syndicate of the University has the power to decide upon the qualifications and service conditions of employees of the University and therefore the decision of the Syndicate to accept the National Apprenticeship Certitficate in Printing as an alternative qualification to K.G.T.E. Certificate (Higher) in Printing, is not illegal or arbitrary. It is stated that the Syndicate had taken the decision evidenced by Ext.R1(b) long before the petitioner submitted Exts.P8 and P9 representations. 6. The third respondent has filed a counter affidavit contending that besides a pass in the S.S.L.C. Examination and Pre-degree Examination in the year 1971 and 2000 respectively, OP 12504/03 -: 6 :- she has also passed the K.G.T.E. Compositor's Work (Lower), Compositor's Work (Higher), Proof Reader's work (Lower), Printing (Lower) and Desk Top Publishing System. She also contends that she had undergone apprenticeship training at the Government Press, Ernakulam from 2.4.1979 to 1.4.1981 in the trade of Compositor Hand and passed the trade test conducted by the National Council for Training in Vocational Trades in April, 1981. The third respondent has further contended that as per the Kerala University First Statutes, 1977, the provisions of the Kerala State and Subordinate Service Rules, 1958, hereinafter referred to as the "K.S. & S.S.R." for short, are made applicable to employees of the University, that as per Rule 10 of the K.S. & S.S.R., the qualifications recognised by executive orders or standing orders of the Government can be treated as equivalent to the qualification prescribed for a post and that the State Government had as early as on 9.4.1990 issued Ext.R1(a) order accepting the National Apprenticeship Certificate in Printing with the trade groups mentioned therein as an alternative qualification to K.G.T.E. Certificate (Higher) in Printing. The third respondent therefore contends that she is eligible and qualified to be OP 12504/03 -: 7 :- promoted as Junior Foreman. 7. I heard Sri.P.K.Manoj Kumar, the learned counsel appearing for the petitioner, Sri.M.Rajagopalan Nair, the learned Standing Counsel appearing for respondents 1 and 2 and Sri. Pirappancode V.S.Sudheer, the learned counsel appearing for the third respondent. The learned counsel for the petitioner submitted that Ordinance 3 in Chapter XVII of the Ordinances stipulates that the scales of pay, age limit, minimum qualifications and method of recruitment to the posts specified in Column 1 of the schedule to the Ordinances shall be as prescribed in the corresponding entries in columns 3, 4, 6 and 7 respectively thereof, that the post of Junior Foreman is item No.127 in the schedule to the Ordinances, that as per the schedule, the qualifications prescribed for Junior Foreman are K.G.T.E. or M.G.T.E. (Lower) in Composing, Printing and Binding, Higher Grade in the subject concerned (Emphasis supplied) and 18 months experience in a printing establishment. The learned counsel for the petitioner submitted that the method of recruitment to the post of Junior Foreman is by promotion from the senior most qualified person in the section concerned or by OP 12504/03 -: 8 :- direct recruitment. The learned counsel for the petitioner further submitted that Ordinance 3(3) in Chapter XVII of the Ordinances stipulates that no person shall be appointed to a post unless he possesses the minimum educational and other qualifications prescribed therefor. It was further submitted that the Syndicate cannot in exercise of the power conferred on it under the proviso to Ordinance 3(3) in Chapter XVII of the Ordinances relax the qualifications, since the third respondent was not in service on the date on which the Ordinances made under the Kerala University Act, 1957 came into operation. The learned counsel for the petitioner further submitted that the schedule to the Ordinances was amended by the Syndicate of the University based on the government orders accepting the National Apprenticeship Certificate in Printing as an alternative qualification to K.G.T.E. Certificate (Higher) and that those amendments were made only in relation to Compositors (Lower Grade), Binder Grade II and Printer Grade II, which are items 129, 131 and 133 resdpectively in the schedule to the Ordinances, that no such amendment was made in relation to the post of Junior Foreman (item 127), that the qualifications OP 12504/03 -: 9 :- prescribed in the Ordinances alone can govern the field and therefore the appointment of the third respondent is in violation of Ordinance 3(3) in Chapter XVII of the Ordinances. In support of the said contention, the learned counsel for the petitioner relied on the decision of a Division Bench of this Court in S.N.College v. N.Raveendran - 2001(3) K.L.T. 938. In the said decision, a Division Bench of this Court held that the qualifications prescribed in the U.G.C. Regulations for appointment to the post of Principal would not apply to Private Colleges unless and until amendments are effected in the Kerala University Statutes incorporating the said qualifications. This Court, relying on the decision of the Apex court in University of Delhi v. Raj Singh & Others - A.I.R. 1995 S.C. 336 held that the provisions of the U.G.C. Regulations prescribing the qualifications for persons to be appointed to the teaching staff of a University and Institutions affiliated to it are only recommendatory and that since necessary amendments have not been incorporated in the University Statutes, it cannot be held that the managements of affiliated colleges are bound to follow the same. It was further held that as the qualifications prescribed OP 12504/03 -: 10 :- in the U.G.C. Regulations have not been incorporated in the Statutes, the selection conducted by the management on the basis of the existing provisions of the University Act and the Statutes cannot be said to be bad in law. 8. Per contra, Sri.M.Rajagopalan Nair, the learned Standing Counsel appearing for respondents 1 and 2 submitted with reference to Statute I in Chapter IV of the Kerala University First Statutes, 1977 that the provisions of the K.S. & S.S.R. as amended from time to time will apply in the matter of all the service conditions of the University employees and therefore the University can prescribe any other qualification as a qualification equivalent to the one prescribed by the Ordinances, in view of the provisions contained in Rule 10 of the K.S.& S.S.R. 9. Sri.Pirappancode V.S.Sudheer, the learned counsel appearing for the third respondent besides reiterating the said contention also relied on the decision of this court in Renjeev v. State of Kerala - 2000(3) K.L.T. 871 to contend the decision taken by the University to accept the National Apprenticeship Certificate in Printing as an equivalent qualification is a decision taken by the University in exercise of the power under Rule 39 of OP 12504/03 -: 11 :- the K.S. & S.S.R. The learned counsel for the third respondent further contended relying on the decisions of this Court in Razaludeen v. University of Kerala - 2002(3) K.L.T. S.N.8 and Viswam v. K.P.S.C. & Ors. - 2001(2) K.L.J. 539 that the University can besides relaxing the qualifications, also prescribe the qualifications equivalent to those prescribed in the Ordinances invoking Rule 13 of the K.S. & S.S.R. 10. I have considered the rival contentions. Ordinance 3 in Chapter XVII of the Kerala University First Ordinances, 1978 reads thus: "3. Scales of pay, age etc. for non-teaching posts:- (1) The scales of pay, age limit, minimum qualifications and method of recruitment to the posts specified in column (1) of the schedule given hereunder shall be as prescribed in the corresponding entries in columns 3,4,5,6 and 7 respectively thereof. (2) Each scale of pay shall carry the increment at such rate as may be prescribed by the Syndicate. (3) No person shall be appointed to a post unless he possesses the minimum educational and other qualifications prescribed therefor: Provided that in the case of employees who OP 12504/03 -: 12 :- were in permanent service on the dates on which the Ordinances or portions thereof made under the Kerala University Act, 1957 came into operation, the Syndicate may relax the qualifications on the merits of each case." 10. The entries in item No.127 of the schedule to the Kerala University First Ordinances, 1978 read thus: "SCHEDULE Sl.No. Designantion Scale of pay Age Qualifications Method of recruitment General Technical (1) (2) (3) (4) (5) (6) (7) 127 Junior 290-560 Not more Pass KGTE or MGTE By promotion Foreman than 30 in Lower in Compo- from the years(No SSLC sing,Printing Seniormost age limit Exam- and Binding and qualified for ination Higher Grade in person in promotees) the subject the section concerned. 18 concerned or months experi- by direct ence in a recruitment. printing estab- lishment On a reading of Ordinance 3 and the entries in the schedule extracted above, it is evident that besides K.G.T.E./M.G.T.E. (Lower) in Composing, Printing and Binding any person aspiring to be promoted or appointed by direct recruitment to the post of Junior Foreman in the Kerala University Press must also possess K.G.T.E./M.G.T.E. (Higher) in the subject concerned, namely, Composing. In the University Press, the three subjects are: OP 12504/03 -: 13 :- Composing, Machine Work (Printing) and Book Binding. Therefore, for the post of Junior Foreman (Composing) the higher grade should be in Composing and not in Machine Work(Printing) or Book Binding. The third respondent admittedly does not possess the K.G.T.E. or M.G.T.E. (Higher) in Composing. Therefore, the third respondent does not possess the qualifications prescribed for the post of Junior Foreman (Composing) in the Ordinances. Then the only question that remains to be considered is whether she is qualified in view of the government orders evidenced by Ext.R1(a) and Ext.R1(c) and the decision of the University evidenced by Ext.R1(b). 11. Statute 2 in Chapter IV of the Kerala University First Statutes, 1977, hereinafter referred to as the "First Statutes" for short, reads thus: "2. Applicability of the Kerala Service Rules etc., to the non-teaching staff. (1) Subject to the provisions of the Act and the statutes issued thereunder, the Kerala State and Subordinate Service Rules, 1958, the Kerala Service Rules, 1959 and the Government Servants Conduct Rules, 1960 as amended from time to time in so far as may be OP 12504/03 -: 14 :- applicable and except to the extent expressly provided for in these Statutes shall apply in the matter of all the service conditions of the University employees in the University service: Provided that the said rules shall, in their application to the members of the University service, be construed as if the employer were the Kerala University instead of the Kerala State Government. (2) Notwithstanding anything contained in these statutes, the employees who were in the University service immediately before the 30th day of August, 1957 and to whom section 28(b) of the Travancore University Act, 1113 was applicable shall be governed by the service rules and conditions of service to which they were subject to before the 30th day of August, 1957, provided that such employees have not exercised their option to be governed by the provisions in Chapter LVIII of the Ordinances immediately in force before the commencement of the Kerala University First Statutes, 1972." 12. The learned counsel appearing for the respondents contended relying on Statute 2 extracted above that the University can relying on the provisions of the K.S. & S.S.R. as amended from time to time, prescribe any qualification as OP 12504/03 -: 15 :- equivalent to those prescribed in the Ordinances and that the University has issued Ext.R1(b) order accepting the National Apprenticeship Certificate in Printing in the trade of Compositor hand, as an alternate qualification to K.G.T.E. Certificate (Higher) in Printing. It is clear from Statute 2 of the First Statutes referred to above that the provisions of the K.S. & S.S.R. as amended from time to time will apply in the matter of all service conditions of the University employees, in so far as they are applicable and except to the extent expressly provided for in the First Statutes. Though the learned counsel appearing for the respondents submitted that as the provisions of the K.S. & S.S.R. would apply except to the extent expressly provided for in the First Statutes and as there is no mention about the Ordinances in Statute 2, the decisions taken by the University invoking the power conferred on Rules 10 and 13 of the K.S. & S.S.R. would override the provisions in the Ordinances. Rule 10(a)(ii) of the K.S. & S.S.R. states that the qualifications recognised by executive orders or standing orders of the government as equivalent to a qualification specified for a post in the special rules and such of those qualifications which pre-suppose the OP 12504/03 -: 16 :- acquisition of the lower qualification prescribed for the post, shall also be sufficient for the post. Rule 13 of the K.S. & S.S.R. which is relied on by the learned counsel for the third respondent relates to special qualifications. The learned counsel for the third respondent contended that where a special qualification is prescribed for a post under the special rules, it is enough if the candidate possesses such other qualifications as may be considered to be equivalent to the said special qualification. 13. The gist of the submissions made and the contentions advanced by respondents 1 to 3 is that as the Syndicate of the University has decided to treat the National Apprenticeship Certificate in Printing with Compositor Hand as the Trade Group, as an alternative qualification to K.G.T.E. Certificate (Higher) in Printing, in exercise of the power available to it under Rules 10(a) (ii) and 13 of the K.S. & S.S.R, the third respondent is qualified to be appointed as Junior Foreman. I find no merit in the said contention. Ordinance 3 in Chapter XVII of the Ordinances mandates that no person shall be appointed to a post specified in the schedule thereto unless he possesses the minimum educational and other qualifications prescribed for the post. For OP 12504/03 -: 17 :- the post of Junior Foreman (Composing), the qualifications prescribed are a pass in S.S.L.C. Examination with K.G.T.E. or M.G.T.E. (Lower) in Composing, Printing and Binding and Higher Grade in the subject concerned. The schedule to the Ordinances in so far as it relates to the post of Junior Foreman has not been amended by incorporating the National Apprenticeship Certificate in Printing with any of the trade groups mentioned in Ext.R1(a) government order as a qualification equivalent to K.G.T.E. Certificate (Higher) in Printing. 14. Section 34 of the Kerala University Act, 1974, hereinafter referred to as the "Act" for short, states that subject to the provisions of the Act, the Statutes may provide for all or any of the following matters, namely:- "(a) the powers and duties of the officers of the University, not specifically provided for in this Act; (b) the constitution, powers and duties of the authorities of the University, not specifically provided for in this Act; (c) the procedure for election of members of the Senate, the Syndicate, the Academic Council and other authorities of the University and all such other matters relating to these bodies, as may be OP 12504/03 -: 18 :- necessary or desirable to provide; (d) award of degrees, diplomas, titles, certificates and other academic distinctions by the University; (e) the withdrawal or cancellation of degrees, diplomas, titles, certificates and other academic distinctions; (f) the maintenance of a register of registered graduates; (g) the holding of convocations to confer degrees; (h) the conditions and procedure for affiliation of colleges; (i) conferment of honorary degrees; (j) the maintenance of the accounts and the preparation and passing of the annual budget of the University; (k) all other matters which by this Act are to be, or may be prescribed by Statutes." Section 36 of the Act states that subject to the provisions of the Act and the Statutes, the Syndicate shall have power to make Ordinances providing for all or any of the following matters, namely:- OP 12504/03 -: 19 :- "(a) the levy of fees in colleges and other institutions, by the University; (b) the residence and discipline of students; (c) the workload and pattern of teaching staff in colleges; (d) the fixation of the scales of pay of various posts in the University and the terms and conditions of service of officers of the University; and (e) all other matters which by this Act or the Statutes are to be, or may be, provided for by the Ordinances." 15. On the terms of Section 36 of