IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 WP(C).No. 152 of 2009(R) ------------------------ PETITIONER: ----------------- 1. THE MANAGER, ST.PAUL'S COLLEGE, KALAMASSERRY. 2. C.J.PAUL, MECHANIC, ST.PAUL'S COLLEGE, KALAMASSERRY. BY ADV. MR.BABU VARGHESE RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, PMG JUNCTION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER MR. T. T. MUHAMMED THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 152 of 2009 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF THE APPROVAL ORDER DATED 18.7.97 ISSUED BY THE SECOND RESPONDENT IN RESPECT OF THE APPOINTMENT AS L.G.S. w.e.f. 22.10.1995 EXT. P2 : TRUE COPY OF THE REVISED STAFF FIXATION ORDER OF THE NON - TEACHING STAFF DATED 28.1.2006 EXT. P3 : TRUE COPY OF THE PROMOTION ORDER DATED 26.10.06 ISSUED IN FAVOUR OF THE 2ND PETITIONER AS MECHANIC EXT. P4 : TRUE COPY OF THE COVERING LETTER DATED 2.11.06 ALONG WITH OTHER DOCUMENTS SUBMITTED BEFORE THE 2ND RESPONDENT FOR GRANTING APPROVAL. EXT. P5 : TRUE COPY OF THE ORDER DATED 15.5.07 REJECTING THE GRANT OF APPROVAL BY THE SECOND RESPONDENT. EXT. P6 : TRUE COPY OF THE G.O.(MS) NO.119/04/H.EDN DATED 17.9.04 EXT. P7 : TRUE COPY OF THE REQUEST DATED 19.9.07 SUBMITTED BY THE 2ND PETITIONER BEFORE THE HONOURABLE MINISTER. EXT. P8 : TRUE COPY OF THE RECOMMENDATION DATED 13.11.2007 GIVEN BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXT. P9 : TRUE COPY OF THE JUDGMENT DATED 8.1.2008 DELIEVERED IN E.P(C) NO. 10583/07 EXT. P10: TRUE COPY OF THE GOVERNMENT LETTER DATED 14.7.2008 GIVING DIRECTION TO THE 2ND RESPONDENT TO COMPLY WITH THE DIREC- TIONS IN EXHIBIT P9 JUDGMENT EXT. P10(a) : TRUE COPY OF THE G.O. (MS) NO. 100/2005/H/ EDN DATED 28.7.05 ISSUED IN FAVOUR OF S.N. COLLEGES. EXT. P10(b) : TRUE COPY OF THE ORDER NO. ESTT. D2/52673/05/COLL. EDN. DATED 31.07.2007 EXT. P11 : TRUE COPY OF THE RELEVANT PAGES OF THE AGENDA FOR THE ANNUAL MEETING OF THE SENATE HELD ON 29.3.2008 /TRUE COPY/ P.A. TO JUDGE HARUN-UL-RASHID, J. ---------------------------------------------- W.P(C) No. 152 of 2009-R --------------------------------------------- Dated this the 12th February, 2009. J U D G M E N T The Writ Petition was filed seeking a direction to quash Exhibits P5 and P5(a) to the extent it prohibits the filling up of existing vacancies and making new appointments, to consider Exhibits P4, P6 and P7 in the light of Exhibits P10, P10(a), P10(b) and P11 and for consequential reliefs. 2. The first petitioner is the Manager to an aided college. The 2nd petitioner is a member of non-teaching staff, who has been promoted in the newly created post of Mechanic. The petitioners contend that even though the 2nd petitioner has been promoted and appointed as Mechanic in a newly created post in the revised staff pattern of Non-teaching staff. His regular appointment has not yet been approved with effect from 28.1.2006 for that reason he is not getting any salary. 3. The 2nd petitioner was initially appointed as Last Grade Staff (Peon) with effect from 22.10.1996. His appointment was approved by order dated 18.7.1997. Exhibit P1 is the said order. Exhibit P2 is the revised staff pattern of the Non-teaching staff in the college. Exhibit P3 is the order passed by the 1st petitioner Manager W.P(C) No. 152 of 2009-R 2 promoting the 2nd petitioner as a Mechanic. The Manager forwarded a proposal for the grant of approval. The 2nd respondent rejected the proposal finding that he is not qualified and not a holder of Diploma or ITI in Electronics or Mechanic. 4. In more or less in the same circumstances this Court has occurred to consider the very same question. In W.P(c) No.10583/2007 disposed by judgment dated 8.1.2008 and was confirmed in Writ Appeal filed by the State. In that case also the same contentions were raised by the learned Government Pleader. The learned Government Pleader contended that the 2nd petitioner does not possess the qualification prescribed for the Mechanic. He has no case that the petitioner is not qualified as per the qualification fixed as per the statute 44 Part C, Chapter 45 of the Mahatma Gandhi University Statutes 1997. The contention was based on the Government Order, which was marked as Exhibit P5(a) in this case. The very same Government Order was considered by this Court and the relevant portion of the statute in the aforesaid case. The contention of the Government Pleader that the qualification has been subsequently revised by Exhibit P5(a) order as per it, for the post of Mechanic, persons with ITI or Diploma in Mechanical or Electrical alone will be considered. This Court after examining the contentions, held that W.P(C) No. 152 of 2009-R 3 Exhibit P5(a) cannot be govern the statute in so far as it is the Government Order and the field is already occupied by the statute. It is settled law that executive orders cannot be pressed into service to allow the qualification which are settled by Statutory Rules, without amending the Rules themselves. In the result ExhibitP5 is quashed. The 2nd respondent is directed to approve the appointment of the 2nd petitioner as Mechanic with effect from the date of appointment and to disburse the salary due to him. The arrears shall also be disbursed and order of appointment shall be made within a period of three months from today. The Writ Petition is allowed. Sd/- HARUN-UL-RASHID JUDGE //True Copy// PA to Judge ab W.P(C) No. 152 of 2009-R 4 W.P(C) No. 152 of 2009-R 5 W.P(C) No. 152 of 2009-R 6 W.P(C) No. 152 of 2009-R 7