IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 28871 of 2007(K) --------------------------------------- PETITIONER: ------------------- MUHAMMED P.K., THENGALAKKANDY HOUSE, VANIMAL P.O., KOZHIKODE. BY ADVS. MR.C.V.MANUVILSAN, MR.E.C.BINEESH, MR.P.CHANDRASEKHAR. RESPONDENTS: ------------------------ 1. THE PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT ANNEX, THIRUVANANTHAPURAM. 2. DIRECTOR, DIRECTORATE OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE REGISTRAR, KANNUR UNIVERSITY, MANGATTU PERAMBRA, KANNUR. 4. THE MANAGER, NUSRATHUL ISLAM ARABIC COLLEGE, KADAVATHUR P.O., KANNUR. 5. THE PRINCIPAL, NUSRATHUL ISLAM ARABIC COLLEGE, KADAVATHUR P.O., KANNUR. R1 & R2 BY GOVERNMENT PLEADER SMT. M.R. SREELATHA, R3 BY MR.M.SASEENDRAN,S.C,KANNUR UNIVERSITY, R4 & R5 BY ADV. MR.CONSTANTINE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.28871/2007-K: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE GOVERNMENT ORDER VIDE NO. G.O.(MS).NO.119/04/H. EDN. DTD. 17/09/2004. EXT.P.2: COPY OF THE GOVERNMENT ORDER VIDE, G.O.(MS).145/04/H. EDN. DTD. 03/11/2004. EXT.P.3: COPY OF THE ORDER NO. E4-24093/05/COLL. EDN. DTD. 25/02/2006. EXT.P.4: COPY OF THE APPOINTMENT ORDER VIDE NO.AO4/NTS/NIAC/2006 DTD. 01/03/2006. EXT.P.5: COPY OF THE COMMUNICATION NO. E4-28647/06/COLL. EDN./L.DIS. DTD. 21/11/2006. EXT.P.6: COPY OF THE NOTIFICATION REGARDING KANNUR UNIVERSITY FIRST STATUTE, PUBLISHED IN THE KERALA GAZETTE (EXTRA ORDINARY) VIDE NO. GO(MS) 69/98/H. EDN. DTD. 25/06/1998. EXT.P.7: COPY OF THE RELEVANT PAGE OF REVISED EDITION OF CALICUT UNIVERSITY ACT, STATUTES, ORDINANCE AND REGULATION. EXT.P.8: COPY OF THE NOTIFICATION PUBLISHED IN THE KERALA GAZETTE (EXTRA ORDINARY) VIDE NO.G.O.(MS)129/2003/H. EDN. DTD. 26/08/2003. EXT.P.9: COPY OF THE NOTIFICATION PUBLISHED IN THE KERALA GAZETTE (EXTRA ORDINARY) VIDE NO.G.O(P)162/2003/H. EDN. DTD. 13/11/2003. EXT.P.10: COPY OF THE G.O.(P).NO.38/2005/G1.EDN. DTD. 04/02/2005. EXT.P.11: COPY OF THE GOVERNMENT ORDER VIDE NO.G.O.(MS)146/05/H. EDN. DTD. 30/09/2005. EXT.P.12: COPY OF THE REPRESENTATION DTD. 20/12/2006 PREFERRED BY THE R.5. TO THE R.1. EXT.P.13: COPY OF THE REPRESENTATION DTD. 01/01/2007 PREFERRED BY THE R.4. TO THE R.1. EXT.P.14: COPY OF THE REPRESENTATION DTD 24/04/2007. EXT.P.15: COPY OF THE REMINDER DTD. 24/08/2007. EXT.P.16: COPY OF THE COMMUNICATION NO. 39998/A3/08/HED DTD. 20/01/2009. EXT.P.17: COPY OF THE GAZETTE NOTIFICATION VIDE G.O.(P).NO.129/2003/H. EDN. DTD. 26/08/2003. EXT.P.18: COPY OF THE COMMUNICATION NO. IDSI (1) 45375/08 DTD. 13/01/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.28871/2007-K ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28th day of October, 2009 J U D G M E N T The petitioner herein is working as Librarian in Nusrathul Islam Arabic College, a private aided college affiliated to Kannur University. The main grievance raised in the writ petition is regarding the grant of approval of appointment. The petitioner herein has produced Ext.P3 whereby one post of Librarian Grade-IV was sanctioned to all 11 private Arabic Colleges including the college in which he is now employed. Ext.P4 is the order of appointment. The second respondent rejected the proposal as per Ext.P5 and the reasons stated therein is that Bachelor Degree in Library and Information Science has been prescribed as minimum qualification for filling up the post of college Librarian. 2. The petitioner contends that he is having the qualification prescribed as per the relevant Statute, namely, Ext.P6 the Kannur University First Statutes, 1998, wherein the qualification for Librarian Grade-IV is S.S.L.C and Certificate in Library Science. 3. The petitioner has produced Exts.P7 to P9 to show that in respect of Calicut University as well as in Government Service, the very same qualification alone is prescribed and exists even now. W.P.(C). No.28871/2007 -:2:- 4. The issue turns up on interpretation of Ext.P1. Ext.P1 prescribes the staff pattern of non-teaching staff in Private Arts and Science Colleges and Arabic Colleges by way of revision of the existing pattern. In paragraph (3) it is recorded as follows:- “3. All Universities will propose necessary amendments to their Statutes regarding the service conditions of Non teaching staff in Private Colleges, in tune with the revised work norms and staff pattern.” 5. It is true that the Government has proposed a different qualification from the existing one governed by Ext.P6 Statutes. But the admitted position is that no amendment has been effected to the Statutes so far. It is explained by the learned Standing Counsel for the University also that so far no amendments have been effected to the First Statutes. In the counter affidavit filed on behalf of the second respondent, the only averment is that all the Universities in Kerala have been instructed to propose necessary amendments in the Statute in accordance with the government order. 6. Therefore, going by the First Statutes, namely, Ext.P6, the petitioner's qualification is sufficient. W.P.(C). No.28871/2007 -:3:- 7. It is well settled that an executive order will not override the Act, Rules or Regulations in force. Herein, the First Statute has been framed in terms of Section 100(1) of the Kannur University Act, 1995 by the Government. Therefore, the said statutory prescriptions, in terms of the relevant First Statutes, cannot be overriden by an executive order issued by the Government. 8. Since the above legal position is well settled, the stand taken by the Government that the qualification prescribed as per Ext.P1 will govern the appointment of persons like the petitioner cannot be accepted. 9. In that view of the matter, the objection that the petitioner is not qualified cannot be sustained. Therefore, Ext.P5 order is quashed. There will be a direction to the second respondent to approve the appointment of the petitioner and disburse the consequential monetary benefits like salary and allowances including arrears. Appropriate orders in this regard will be passed within two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms