IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 19TH OCTOBER 2011 / 27TH ASWINA 1933 WP(C).No. 16652 of 2010(F) --------------------------------------- PETITIONER(S): ---------------------- P.S. RAJAN, OFFSET PRINTER, UNIVERSITY PRESS, KERALA UNIVERSITY, THIRUVANANTHAPURAM. BY ADV. SRI.T.RAJASEKHARAN NAIR RESPONDENT(S): -------------------------- 1. THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, UNIVERSITY BUILDING, PALAYAM, THIRUVANANTHAPURAM. 2. THE REGISTRAR, UNIVERSITY OF KERALA, UNIVERSITY. P.O, PALAYAM, THIRUVANANTHAPURAM. 3. J.S. BIJU, NOW WORKING AS JUNIOR FORMAN (PRINTING), KERALA UNIVERSITY PRESS, UNIVERSITY. P.O, PALAYAM, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. R3 BY ADV. SRI.PIRAPPANCODE V.S.SUDHEER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2011, THE COURT ON 19/10/2011 DELIVERED THE FOLLOWING: rs WP(C).No. 16652 of 2010(F) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT BY PROMOTING THE PETITIONER AS OFFSET PRINTER. EXT.P2: COPY OF THE RELEVANT PAGES OF THE ORDINANCE SHOWING THE QUALIFICATION FOR THE POST OF JUNIOR FOREMAN. EXT.P3: COPY OF THE JUDGMENT IN WP(C) NO. 12416/2007 PASSED BY THIS HONOURABLE COURT. EXT.P4: COPY OF THE ORDER NO.AD.D.III (2)/9501/07 DATED 07/09/2007, PASSED BY THE 1ST RESPONDENT. EXT.P5: COPY OF THE JUDGMENT IN O.P. NO. 12504/2003 PASSED BY THIS HONOURABLE COURT. EXT.P6: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P7: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 2ND RESPONDENT. EXT.P8: COPY OF THE JUDGMENT IN WP(C) NO. 3575/2010 PASSED BY THIS COURT. EXT.P9: COPY OF THE MEMO ALONG WITH A PROCEEDINGS OF THE REGISTRAR ISSUED BY THE 2ND RESPONDENT. EXT.P10: COPY OF THE COMMUNICATION ISSUED BY THE PUBLIC INFORMATION OFFICER IN THE OFFICE OF THE 1ST RESPONDENT TO THE PETITIONER UNDER RIGHT TO INFORMATION ACT. EXT.P11: COPY OF THE NOTIFICATION OF AMENDMENT TO THE UNIVERSITY FIRST AUDIENCE 1978. RESPONDENT'S EXHIBITS:- EXT.R1(a): COPY OF THE MINUTES OF HEARING REGISTRAR. EXT.R3(a): COPY OF THE G.O.(MS) NO.2/94/P&ARD DATED 06/01/1994. EXT.R3(b): COPY OF THE ITEM NO.27 OF THE PRELIMINARY MINUTES OF THE 22ND MEETING OF THE SYNDICATE HELD ON 29/05/2008. (P.T.O.) WP(C).No. 16652 of 2010(F) EXT.R3(c): COPY OF THE RELEVANT EXTRACT OF THE KERALA UNIVERSITY FIRST ORDINANCES 1978, EMBODYING AMENDMENTS UPTO 28TH JANUARY, 1999. EXT.R3(d): COPY OF THE NATIONAL TRADE CERTIFICATE, IN HAND COMPOSITION ISSUED TO THE 3RD RESPONDENT BY THE NATIONAL COUNCIL FOR VOCATIONAL TRAINING. EXT.R3(e): COPY OF THE NATIONAL APPRENTICESHIP CERTIFICATE IN HAND COMPOSITION ISSUED TO THE 3RD RESPONDENT BY THE NATIONAL COUNCIL FOR VOCATIONAL TRAINING. EXT.R3(f): COPY OF THE G.O.(P) NO.7/90/P&ARD DATED 09/04/1990. EXT.R3(g): COPY OF THE ORDER NO.AD.AIII-1/G/58621/03 DATED 15/03/2003 OF THE UNIVERSITY. //TRUE COPY// P.S. TO JUDGE rs T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 16652 of 2010 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of October, 2011. JUDGMENT The petitioner aspired for promotion as Junior Foreman (Printing) under the first respondent University. But his claim was rejected by the University and the decision of the University is in favour of the third respondent. Exts.P4 and P9 proceedings of the University are under challenge in this writ petition. 2. The vacancy in the post of Junior Foreman (Printing) in the University arose due to the promotion of one Mr. S. Rajasekharan who was promoted as Senior Foreman on 21.3.2007. The petitioner initially joined service on 17.1.1996 as Printer Grade II and was promoted to the post of Printer Grade I on 18.8.2000. Later, he was promoted by Ext.P1 order dated 28.10.2006 as Offset Printer. According to him, he was the only person qualified and eligible to be promoted to the post of Junior Foreman as per the provisions contained in the Kerala University First Ordinance, 1978.The qualification prescribed for promotion under the Schedule to the Kerala University First Ordinance, 1978 is Item 127, which according to the petitioner, is not satisfied by the third respondent. wpc 16652/2010 2 3. Pursuant to the direction issued by this Court in W.P.(C) No.12416/2007 filed by the petitioner and W.P.(C) No.17176/2007 filed by the third respondent, both of them were heard and the University, by Ext.P4, decided in favour of the third respondent. 4. At the relevant point of time, a similar dispute was pending before this Court in W.P.(C) No.12504/2003 which was finally disposed of by Ext.P5 judgment. Accepting the alternate qualification the University promoted one Smt. P.S. Santhamma as Junior Foreman (Composing). The said qualification, viz. National Apprenticeship Certificate in Printing Grade Group, was treated as equivalent to KGTE or MGTE Certificate (Higher) in Printing section. The University had issued an order as U.O.No.Ad.A.III. I.G. 58621/03 dated 15.3.2003 accepting the said alternate qualification and accordingly Smt. P.S. Santhamma was promoted. But this Court in Ext.P5 judgment found that she is not having the required qualification as provided in the Ordinance. It was held that the University Ordinance has not been amended and therefore the alternate qualification cannot be accepted. The writ appeal filed against the said judgment was also dismissed and thereafter the petitioner filed a fresh representation as per Ext.P6. Finally the University, after reconsidering the matter, reiterated the claim of the third respondent. wpc 16652/2010 3 5. Heard learned counsel for the petitioner Shri T. Rajasekharan Nair, learned Standing Counsel for the University and Shri Pirappancode V.S. Sudheer, learned counsel appearing for the third respondent. 6. Learned counsel for the petitioner contended that the qualification for the post is prescribed under Serial No.127 of Ext.P2 and the third respondent does not satisfy the same. Serial No.127 of Ext.P2 provides the qualification as follows: Sl.No. Designation Scale of Pay Age Qualifications Method of recruitment General Technical (1) (2) (3) (4) (5) (6) (7) 127 Junior Foreman 290-560 Not more Pass in KGTE or MGTE By promotion from 30 years SSLC Lower in Composing the seniormost Examination Printing and Binding qualified person in and Higher Grade in the section concerned the subject concerned or by directed 18 months experience recruitment in a printing establishment Therefore, the required qualification is KGTE or MGTE Lower in Composing, Printing and Binding and Higher Grade in the subject concerned. As far as the petitioner is concerned, he is having SSLC and KGTE and MGTE and Lower in Composing, Higher Grade in Printing, Lower Grade in Binding. As on the date of occurrence of vacancy, he had 11 years of service in the Kerala University Press. As far as the third respondent is concerned, according to the petitioner, he is not having KGTE or MGTE in the concerned subject. wpc 16652/2010 4 7. While promoting the third respondent, the University was of the view that the third respondent is qualified, in the light of the University Order dated 15.3.2003 of the University, accepting the National Apprenticeship Certificate in Printing Trade Group as an alternate qualification to KGTE or MGTE Certificate (Higher) in Printing. The same is evident from Ext.P4 order which was issued before Ext.P5 judgment was rendered. It was also found that the third respondent is senior to the petitioner. 8. In Ext.P5 judgment, the very same question was considered by this Court and after analysing Serial No. 127 of the Schedule, this Court addressed the question whether the National Apprenticeship Certificate can be treated as an alternate qualification. Reference was made to a Government Order and the order passed by the University. The view taken in para 13 therein is that as the Schedule to the Ordinance in so far as it relates to the post of Junior Foreman, has not been amended incorporating the National Apprenticeship Certificate in Printing with any of the Trade Groups mentioned in Ext.R1(a) University Order as a qualification equivalent to KGTE or MGTE Certificate in Printing, the same cannot be accepted. This view as affirmed by the Division Bench in W.A. No.989/2008 and connected case. S.L.P.(Civil) No.27728/2008 was wpc 16652/2010 5 dismissed by the Supreme Court on 1.12.2008. After the matter was reheard by the University, in Ext.P9 the University also changed its view from those contained in Ext.P4. 9. In Ext.P9 with regard to the qualification of the third respondent, the observations are the following: “In lieu of composing lower certificate from KGTE he possesses the alternate qualification of NTC Hand Compositor recognised by the Government vide GO(MS)2/94/P&ARD Tv. dated 06.01.1994 and the same was incorporated in the ordinance by making suitable amendments. (Amendment No.137).” After noticing that the National Apprenticeship Certificate in Composing is not required for awarding promotion to the third respondent since he possesses the MGTE certificate Higher in Printing and that the same was inadvertently considered for awarding promotion to him by linking his case with Smt. P.S. Santhamma, it is found that N.T.C. Hand Compositor is sufficient for his promotion. 10. Learned counsel for the petitioner submitted that Serial No. 127 has not been amended by Amendment No.137. Ext.P2 produced is the relevant portion of First Ordinances, 1978 as amended upto January, 1999. The amendment introduced as per Amendment No.137 is in respect of Serial Nos.129, 131 and 133. Therein, in Item No.129, against the post of wpc 16652/2010 6 Compositor (Lower Grade), the required technical qualification as amended, is: “Composing (Lower) KGTE or MGTE OR National Trade Certificate in Compositor Hand (Hand Compositor) and Proof Reading” In item 131 for the post of Binder Grade II the technical qualification is the following: “Binding (Lower) KGTE or MGTE O R National Trade Certificate in Book Binding.” Item No.133 relates to the post of Printer Grade II. The technical qualification prescribed is the following: “Printing (Lower) KGTE or MGTE O R National Trade Certificate in Letter Press Machine Minder (Printing Machine Operator)” Therefore, it is submitted that wherever alternate qualification was required to be provided, the same has been introduced by the amendment. But as far as Item No.127 is concerned, no such alternate qualification has been prescribed. 11. My attention was invited to the judgment of the Division Bench wpc 16652/2010 7 in W.A. No.989/2008 and connected case affirming Ext.P5 judgment. It is submitted that the Division Bench was of the view that unless Item No.127 is amended, the alternate qualification provided by the Government as per Ext.R3(f) order and which was re-adopted by the University, and relied upon by the third respondent, cannot have any value. 12. The Division Bench examined the question from para 10 onwards. Therein, the vacancy was in the post of Junior Foreman in Composing. What is required under Serial No. 127 is KGTE or MGTE lower in Composing, Printing and Binding and Higher Grade in the subject concerned. The third respondent is relying upon the NTC certificate as equivalent to the qualification of KGTE Lower in Composing. 13. The Division Bench, after noticing that there is no amendment to Serial No.127 of the Schedule, considered the effect of Ext.R1(a) order therein which is the order dated 15.3.2003 issued by the University. The same is produced as Ext.R3(g) herein. Therein, the Syndicate resolved that G.O.(P) No.7/90/P& ARD dated 9.4.1990 relating to acceptance of National Apprenticeship Certificate in Printing Trade Group as alternative qualification to Kerala Government Technical Examination Certificate (Higher) in Printing be implemented in the University. After analysing various provisions of the Act with regard to the promulgation of the wpc 16652/2010 8 Ordinance and the amendments effected therein, the Division Bench found thus in para 26: “26. As mentioned in the earlier part of the judgment, Chapter XVII of the Kerala University First Ordinances 1978 deals with scales of pay, qualification etc. of various posts in the University. Ordinance 3 in the above Chapter deals with scales of pay, age etc. for non teaching posts in the University. sub-clause (3) of Ordinance 3 postulates that no person shall be appointed to a post unless he possesses the minimum educational and other qualifications prescribed therefor. The schedule annexed to the First Ordinances refers to various posts in the University Press also. Serial No.127 relating to Junior Foreman has been extracted in the earlier part of the judgment already. As mentioned earlier, the qualifications prescribed in the schedule for the post of Junior Foreman has not been amended by the University so far in the manner prescribed under the Act, Statutes or Ordinances.” In para 28 it was held that mere resolution will not be a substitute for a proper amendment and it was held thus: “28. A perusal of the various provisions of the Act, Statutes and Ordinances referred to above, will undoubtedly show that a mere resolution passed by the Syndicate may not be of any avail to the University to contend for the position that the qualifications prescribed for the post under the Schedule in the Ordinance 1978 will stand altered by such resolution. Even assuming for the sake of argument that the resolution passed by the Syndicate can be wpc 16652/2010 9 treated as an Ordinance, there is nothing on record to show that the said resolution was proposed as an Ordinance and placed before the Senate in its next meeting for approval, leave alone its publication in the official gazette.” 14. Thus, as far as the qualification under Serial No. 127 is concerned, there is no amendment introducing alternate qualification. Therefore, the said point is covered by the decision of this Court in Ext.P5 as affirmed by the Division Bench. Any amendment in Serial Nos.129, 131 and 133 providing the NTC certificate as an equivalent qualification, cannot help the third respondent. 15. In this context, the averments contained in the counter affidavit of the University will also be profitable to be mentioned to understand as to how they have considered the matter. In para 7 it is stated that vide Amendment No.137 to Kerala University First Ordinance, the Kerala University has implemented G.O.(MS) 2/94/P&HRD dated 06.01.1994 (recognizing three NTC certificates as alternate qualification to KGTE Lower and suitably amended as Sl. No.129, 131 and 133 in the Kerala University First Ordinance. Accordingly, it is stated that the third respondent is eligible for promotion as Junior Foreman (Printing) in the light of Amendment No.137. In para 10 it is stated that “in lieu of Composing (Lower) Certificate from KGTE, Shri J.S. Biju possesses the wpc 16652/2010 10 alternate qualification of NTC Hand Compositor recognized by the Government of Kerala vide G.O.(MS) 2/94/P&HRD, Thiruvananthapuram dated 06.01.1994 and the same was incorporated in the Kerala University First Ordinance by making suitable amendments (Amendment No.137).” Therefore, evidently the University is relying upon the NTC certificate in Hand Composing as equivalent to KGTE (Lower). 16. The third respondent, in his counter affidavit also, relies upon the amendment, in para 5. Ext.R3(b) contains the Preliminary Minutes of the 22nd Meeting of the Syndicate held on 29.4.2008 wherein a proposal is made to amend the schedule to the effect that “wherever qualification for a post in the Printing Trade Group is prescribed as KGTE (Higher) that may be substituted as KGTE (Higher) or National Apprenticeship Certificate in Printing.” Ext.R3(c) is the relevant extract of the Schedule to the Kerala University First Ordinances, 1978 introducing Amendment No.137, the details of which have already been referred to. Evidently, the amendment is confined to Item Nos.129, 131 and 133. Exts.R3(d) and R3(e) are copies of the National Trade Certificate in Hand Composing and National Apprenticeship Certificate in the same issued to the third respondent. Ext.R3(f) is the Government Order, viz. G.O.(P) No.7/90/P&ARD dated 9.4.1990 whereby the Government had ordered that the “National wpc 16652/2010 11 Apprenticeship Certificate in Printing with the Trade Groups mentioned therein, will be accepted as an alternate qualification to KGTE Certificate (Higher) in Printing. Ext.R3(g) is the University Order adopting the same. 17. Learned counsel for the third respondent Shri Sudheer argued that the alternate qualification prescribed by the University as per the orders referred to are sufficient in the light of Rule 10 of KS & SSR which have been incorporated to the University Statutes also. My attention was invited to the additional counter affidavit filed by the third respondent in that regard. In the additional counter affidavit also, the stand taken by the third respondent is that “instead of KGTE or MGTE Lower in Composing, I hold NTC certificate in the Trade of Hand Compositor, equivalent to KGTE or MGTE in Composing (Lower) and also NAC Certificate in the Trade of Hand Compositor, which again is equivalent to KGTE or MGTE (Higher). It therefore follows that instead of KGTE or MGTE (Lower) in Composing, I am holding equivalent qualification, viz. Higher and Lower in the said Trade.” 18. Statute 2 of Chapter 4 regulating the terms and conditions of Service of the Non Teaching Staff of the Kerala University makes applicable the provisions of the Kerala Service Rules, Kerala State and Subordinate Service Rules and the Government Servant Conduct Rules, wpc 16652/2010 12 1960 as amended from time to time in so far as may be applicable and except to the extent expressly provided for in the Statutes. It is made clear from the proviso 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 Government. 19. Before adverting to the contentions of the petitioner with regard to the applicability of Rule 10 of KS & SSR, I will refer to the judgment of the Division Bench in W.A. No.989/2008, wherein the question was considered whether the executive orders adopted by the University providing the equivalent qualification are sufficient. Rule 10(a)(ii) of Part II of KS & SSR reads as follows: “Notwithstanding anything contained in these rules or in the Special Rules, the qualifications recognized by executive orders or standing orders of Government as equivalent to a qualification specified for a post, in the Special Rules or found acceptable by the Commission as per rule 13(b)(i) of the said rules in cases where acceptance of equivalent qualifications is provided for in the rules and such of those qualifications which pre-suppose the qualification of the lower qualification prescribed for the post, shall also be sufficient for the post.” After referring to the above rules, in paragraphs 31 to 33 of the judgment, it has been held thus: wpc 16652/2010 13 “31. Undoubtedly those qualifications which are recognised by executive orders or standing orders of Government as equivalent to a qualification specified for a post, shall also be sufficient for the post coming under the purview of pubic appointment. But it may be noticed that the above rule postulates that the Special Rules applicable for the category of post must provide for acceptance of the equivalent qualification in the Special Rules itself. 32. But as has been noticed already, qualification for the post of Junior Foreman (Composing) had been prescribed in the Schedule under the First Ordinances 1978. There is no provision for acceptance of any alternate qualification in the Schedule. Undoubtedly, the Syndicate could have brought in an amendment to the Ordinances in a manner prescribed under the Act and the Statutes. The Syndicate could not have legislated through an executive order without making an Ordinance or by amending an existing Ordinance. Ext.R1(b) order issued by the Registrar of the University cannot in any way be treated as an amendment to the Kerala University First Ordinance 1978. 33. In this context we may once again refer to the admitted position that the University had, on a previous occasion, brought in appropriate amendments to the qualifications for the posts in relation to serial Nos.129, 131 and 133 of the Schedule after accepting some other equivalent qualifications for the above posts. In view of the specific stipulation contained in Ordinance 3 in Chapter XVII of the First Ordinances 1978, we have no hesitation to hold that the University cannot seek shelter under Rule 10 of Part II KS & SSR. A conjoint reading of Statute 2 of Chapter IV of wpc 16652/2010 14 First Statute 1977 and Rule 10 of part II of KS & SSR will unambiguously show that the contentions raised by the appellant and the University are wholly misconceived and untenable.” Accordingly, the view taken is that the Special Rules applicable for the category of post must provide for acceptance of the equivalent qualification in the Special Rules itself. 20. Learned counsel for the third respondent Shri Sudheer submitted that the judgment of the Division Bench is per incuriam for the following reasons: Rule 10(a)(ii) of KS & SSR was amended by G.O.(P) No.7/98/P&ARD dated 6.2.1998. It is submitted that the unamended sub- rule (ii) and the amended sub-rule (ii), if closely read, it can be seen that the second limb is applicable only as far as the Public Service Commission is concerned for their action and the Division Bench has clearly went wrong in properly interpreting the said statutory rule. 21. Rule 10(a)(i) which was amended as on 3.2.1994 and which is extracted in the additional counter affidavit, is the following: “10. Qualifications:- (a)(i) The educational or other qualifications, if any, required for a post shall be as specified in the Special Rules applicable to the Service in which that post is included or as specified in the Executive Orders of Government in cases where Special Rules have not been issued for the post/service. (ii) Notwithstanding anything contained in these Rules or in wpc 16652/2010 15 the Special Rules, the qualifications recognized by executive orders or Standing Orders of Government as equivalent to a qualification specified for a post in the Special Rules and such of those higher qualifications which presuppose the acquisition of the lower qualification prescribed for the posts shall also be sufficient for the post.” After the amendment dated 6.2.1998 it reads as follows: “10. Qualifications:- (a)(i) The educational or other qualifications, if any, required for a post shall be as specified in the Special Rules applicable, to the service in which that post is included or as specified in the executive orders of Government in cases where Special Rules have not been issued for the post/service. (ii) Notwithstanding anything contained in these Rules or in the Special Rules, the qualifications recognized by Executive Orders or Standing Orders of Government as equivalent to a qualification specified for a post in the Special Rules or found acceptable by the Commission as per Rule 13(b)(i) of the said Rules in cases where acceptance of equivalent qualifications is provided for in the Rules and such of those qualifications which pre-suppose the acquisition of the lower qualification prescribed for the post, shall also be sufficient for the post” It is contended that the clause introduced by the said amendment “or found acceptable by the Commission as per Rule 13(b)(i) of the said Rules in cases where acceptance of equivalent qualifications is provided for in the wpc 16652/2010 16 Rules” cannot therefore have an impact in respect of matters like this. Therefore, the learned counsel submitted that the first limb alone was applicable to the situation projected in the facts of the case considered by the Division Bench. It is submitted that going by the first limb, the qualification required by the executive orders or standing orders of the University as equivalent, shall be sufficient for the post. It is therefore submitted that the resolutions of the University by which the equivalent qualification is prescribed, will come to the help of the third respondent. Learned counsel for the third respondent also relied upon a Full Bench decision of this Court in Suma v. Kerala Public Service Commission (2011 (1) KLT 1 - FB) with regard to the interpretation of Rule 10(a)(ii) of KS & SSR. 22. Learned counsel for the petitioner opposed the said contention by submitting that the interpretation placed by the Division Bench perfectly goes in tune with the provisions of the rule and the decision of the Division Bench cannot be termed as per incuriam. Before going into the said controversy, we will have to see whether the National Apprenticeship Certificate relied