IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 WP(C).No. 24834 of 2006(F) -------------------------- PETITIONERS: ------------ 1. ARIFA BEEVI.P. PEON, AUDIT I, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, POST, ATHIRAMPUZHA, KOTTAYAM DISTRICT. 2. V.KARTHIKEYAN, PEON, SCHOOL OF GANDHIAN STUDIES, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS P.O. ATHIRAMPUZHA, KOTTAYAM DISTRICT. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO RESPONDENTS: ------------- 1. MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS POST, ATHIRAMPUZHA, KOTTAYAM DIST. 2. THE VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS P.O. ATHIRAMPUZHA, KOTTAYAM DISTRICT. 3. MANOJ M.R. CLERICAL ASSISTANT, EXAM DESPATCH SECTION II, PRIYADARSHINI HILLS PO, ATHIRAMPUZHA, KOTTAYAM. 4. THOMAS C. CLERICAL ASSISTANT, EXAM STORE, PRIYADARSHINI HILLS PO,ST ATHIRAMPUZHA, KOTTAYAM DISTRICT. 5. AMINA.P. CLERICAL ASSISTANT, P.D.II SECTION, PRIYADARSHINI HILLS POST, ATHIRAMPUZHA, KOTTAYAM DISTRICT. WP(C).No. 24834 of 2006 6. UNNIKRISHNAN NAIR M.D. CLERICAL ASSISTANT, EXAM C.V.CELL, PRIYADARSHINI HILLS P.O. ATHIRAMPUZHA, KOTTAYAM DISTRICT. 7. RADHAMMA E.B., CLERICAL ASSISTANT, P.D. I SECTION, PRIYADARSHINI HILLS P.O., ATHIRAMPUZHA, KOTTAYAM DISTRICT. 8. SOJAN MATHEW, CLERICAL ASSISTANT, PRIYADARSHINI HILLS P.O., ATHIRAMPUZHA, KOTTAYAM DISTRICT. 9. SARASU R., CLERICAL ASSISTANT, P.D. V. SECTION, PRIYADARSHINI HILLS P.O., ATHIRAMPUZHA, KOTTAYAM DISTRICT. 10. CHANDY A.K., CLERICAL ASSISTANT, SCHOOL OF INDIAN LEGAL THOUGHT KUMARANELLOOR, KOTTAYAM. 11. MATHEW V.V., CLERICAL ASSISTANT, MAHATMA GANDHI UNIVERSITY LIBRARY, PRIYADARSHINI HILLS P.O.,ATHIRAMPUZHA, KOTTAYAM DISTRICT. 12. THOMAS T.A., CLERICAL ASSISTANT, AD. D SECTION, PRIYADARSHINI HILLS P.O., ATHIRAMPUZHA, KOTTAYAM DISTRICT. 13. ELSAMMA KURIAN, CLERICAL ASSISTANT, ACCOUNTS VIII SECTION, PRIYADARSHINI HILLS P.O., ATHIRAMPUZHA, KOTTAYAM DISTRICT. 14. MOHAMMED BASHEER K.P., CLERICAL ASSISTANT, EXAM DESPATCH SECTION III, PRIYADARSHINI HILLS P.O., ATHIRAMPUZHA, KOTTAYAM DISTRICT. BY ADV. SRI.V.A.MUHAMMED, SC, M.G.UNIVERSITY SRI.K.JAJU BABU SRI. T.A. SHAJI, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24834 of 2006 APPENDIX EXT.P1: TRUE COPY OF THE LETTER NO.AD.A.II(1) 312/96 DATED 26.7.1996 OF THE REGISTRAR, UNIVERSITY OF KERALA, ADDRESSED TO THE REGISTRAR, MAHATMA GANDHI UNIVERSITY. EXT.P2: TRUE COPY OF THE LETTER NO.GA/B2/3261/96/L.DIS. DATED 29.1.1996 OF THE REGISTRAR, KERALA AGRICULTURAL UNIVERSITY, ADDRESSED TO THE REGISTRAR, MAHATMA GANDHI UNIVERSITY. EXT.P3: TRUE COPY OF THE LETTER NO.AD.A3/174/81 DATED 16.3.1996 OF THE REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, ADDRESSED TO THE REGISTRAR, MAHATMA GANDHI UNIVERSITY. EXT.P4: TRUE COPY OF THE ORDER NO.AD.A3/1-3082/2000 DATED 13.9.2005 OF R1. EXT.P5: TRUE COPY OF THE ORDER NO.AD.A3/1-3082/2000 DATED 12.7.2006 OF R1. 3RD RESPONDENT'S EXHIBITS EXT.R3(a): TRUE COPY OF JUDGMENT DATED 11.2.1997 IN O.P.NO.924/1996 OF THIS HON'BLE COURT. EXT.R3(b): TRUE COPY OF RELEVANT EXTRACT OF SENIORITY LIST OF LAST GRADE EMPLOYEES GRADE-II AS ON 11.7.1997 ISSUED VIDE CIRCULAR NO.AD.A-III/1/ 9064/95/ADMN. DATED 9.9.97. EXT.R3(c): TRUE COPY OF ORDER NO.3061/95 (1)/A-III/Admn. (ii) DATED 5.12.1997 ISSUED BY R1. EXT.R3(d): TRUE COPY OF JUDGMENT DATED 26.2.1998 IN O.P.NO.21788/1997 OF THIS HON'BLE COURT. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.24834 OF 2006 ---------------------------------------- Dated this the 14th day of January, 2008 JUDGMENT The petitioners are Class IV employees of the 1st respondent University. They are aggrieved by the action of the University in making promotions to the post of Clerical Assistants without insisting upon the qualifications prescribed by the relevant Ordinances made mentioned of in Ext.P1. The Mahatma Gandhi University Act came into being in 1985. At that time there were no Ordinances issued by the University detailing the qualifications and method of appointment to various posts. Therefore by Section 99(2) of the Mahatma Gandhi University Act, 1985 , it was provided that all Statutes and Ordinances made under the Kerala University Act, 1974 and in force on the date of commencement of Mahatma Gandhi University Act, 1985 shall, in so far as they are not inconsistent with the provisions of the Mahatma Gandhi University Act 1985, continue to be in force in respect of the area referred to in sub section 1 until they are replaced by the Statutes and Ordinances to be made under the W.P.(c) No.24834/06 2 Mahatma Gandhi University Act, 1985. In respect of appointment to the post of Clerical Assistants, no separate Ordinances have been framed by the University. Therefore by virtue of Section 99(2) of the Mahatma Gandhi University Act 1985, Ordinances on the subject in force in the Kerala University namely, the Kerala University First Ordinances, 1978 continue to be applicable to the Mahatma Gandhi University as well. 2. In Ext.P1 communication of the Registrar of the University of Kerala addressed to the Registrar of the Mahatma Gandhi University, the qualifications and method of appointment for the post of Clerical Assistants as per the Kerala University Ordinances is quoted as thus: “II. Clerical Assistants: Clerical Assistants are appointed by promotion from the Class IV employees. Those having S.S.L.C. before entry into service will be considered for promotion on completion of 3 years service and who passed S.S.L.C. after entry into service will be considered for promotion when they complete 2 years service. Scale of Pay: Rs.950-1650 Age: Not more than 30 years (relaxed in the case of those in service) Qualification: A pass in S.S.L.C. (Relaxable in the case of those in the University service). Technical: Good handwriting. W.P.(c) No.24834/06 3 Method: By competitive test or interview or by promotion from among the cadre of Last Grade Servants.” 3. The petitioners contend that going by the same, S.S.L.C. is the prescribed qualification for appointment to the post of Clerical Assistants, although that qualification is relaxable in the case of those in the University service. The grievance of the petitioners is that in spite of the said qualification, the appointments are being made in the University to fill up the post of Clerical Assistants by simply promoting Class IV employees in accordance with the seniority without reference to qualifications of those persons. The petitioners would contend that one of the consequences of such promotion is that the post of Clerical Assistants would be filled up by persons, who do not have S.S.L.C. qualification, who would not be eligible for promotion as Assistants Gr.II, the further result of which would be that none of the Class IV employees, who does have S.S.L.C. qualification would have a chance to get promotion to the post of Assistant Grade II for which S.S.L.C. qualification is mandatory. The petitioners therefore seek the following reliefs: “i. call for the records leading to Exts.P4 and P5 and quash them by issuing a writ of certiorari W.P.(c) No.24834/06 4 or any other appropriate writ, order or direction. ii. declare that the provision in the Kerala University Statutes and First Ordinances 1978 as evidenced by Ext.P1 enabling promotion of unqualified Class IV employees in preference to qualified Class IV employees to the post of Clerical Assistant in so far as it applies to the Mahatma Gandhi University is void and inoperative. iii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to take effective and expeditious action to put an end to the arbitrary and discriminatory practice of treating qualified and unqualified Class IV employees alike in the matter of promotion to the post of Clerical Assistant within a time limit to be fixed by this Hon’ble Court. iv. declare that the provisions in Ext.P1 making relaxable in the case of those in the University service the provision relating to the possession of the qualification of pass in S.S.L.C does not enable anyone to claim automatic relaxation of qualification. v. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents not to fill up the pots of Clerical Assistants by Class IV employees without S.S.L.C. qualification when Class IV employees with S.S.L.C. qualification like the petitioners are available for promotion. vi. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to promote the petitioners as Clerical Assistants based on their seniority among qualified Class IV employees within a time limit to be fixed by this Hon’ble Court.” 4. The University as well as the party respondents have filed counter affidavits. Both would justify the W.P.(c) No.24834/06 5 promotions made. According to respondents 3 to 10 and 13 the question as to whether class IV employees can be appointed as Clerical Assistants without reference to qualifications, has been the subject matter of two judgments of this Court namely, Exts.R3(a) and R3(d) and according to them by these judgments, this Court has permitted such promotion without reference to qualifications directing the University to take a decision on that basis, which resulted in Ext.R3(c) University order, whereby it has been held that promotions to the post of Clerical Assistants from among the Class IV employees can be made on the basis of seniority in the common seniority list of Class IV employees, which has been drawn up pursuant to Ext.R3(a) judgment. They would contend that in so far as the University has passed Ext.R3(c) order, taking into account the fact that the Ordinances applicable provided a power on the University to relax qualifications, in exercise of which power only Ext.R3(c) order has been issued. Therefore by virtue of Ext.R3(c) order, all Class IV employees in the University service are eligible for promotion to the post of Clerical Assistants by relaxing the requirement of qualification of S.S.L.C. mentioned in the W.P.(c) No.24834/06 6 Ordinance. The party respondents also point out that Ext.R3 (c) order has been passed as early as on 5.12.1997, which has not been challenged either by the petitioners or by anybody else and therefore the settled position should not be disturbed at this point of time. This contention of the party respondents is supported by the standing counsel for the University. 5. I have considered the rival contention in detail. It is not now disputed before me that as per the qualifications prescribed by the Ordinances applicable, the qualification prescribed is S.S.L.C., which is only relaxable in the case of those in the University service. The respondents could not produce before me any order by which the University had consciously addressed itself to the question as to whether the qualification of S.S.L.C. prescribed by the Ordinances namely, S.S.L.C. should be relaxed in the case of any person in the University service giving any reasons for giving such relaxation. I am not impressed by the contentions of the party respondents that in Ext.R3(a) judgment this Court had directed appointment of Class IV employees as Clerical Assistants on the basis of seniority alone without reference to qualifications. The relevant portion of Ext.R3(a) judgment is W.P.(c) No.24834/06 7 paragraph 16, which reads thus: “16. The prayers in O.P. No.924 of 1995 are allowable. In paragraph 5 of the counter affidavit filed by respondents 1 and 2 in O.P. No.16264 of 1994, it is seen that as per the Syndicate’s decision, any Class IV category employee can be treated as eligible for promotion. But in paragraph 6 of the counter affidavit it is stated that the practice followed in other Universities is that the seniormost Peon will be promoted to the higher post. This stand taken by the University cannot be countenanced by this Court. When a resolution is passed by the Syndicate that all Class IV employees are entitled to be considered for promotion to the post of Laboratory Assistants, Clerical Assistants and Ronio Operators (Duplicator), there is no gainsay in contending that only Peons are entitled to be considered for promotion. It is clear from the exhibits produced by the petitioners, especially Exts.P12 and P13 that all the employees coming under the category of Class IV are grouped together irrespective of the fact that they occupy the post of Peons, Sweepers, Scavengers, Cleaners or Laboratory Assistants etc. Ext.P14 judgment of this Court also makes it clear that all last grade servants are grouped together and for promotion to the post of Clerical Assistants, all employees in the last grade service should be considered. The decision of the Syndicate also is to this effect. So, while implementing the decision, the University cannot deviate from the resolution passed by the Syndicate which says that all Class IV employees should be considered for promotion to the higher post of Laboratory Assistants, Clerical Assistants and Ronio Operators (Duplicator). The practice followed by the other W.P.(c) No.24834/06 8 Universities, especially the Kerala University is to consider all employees along with Class IV employees for further promotion. As already stated, in the absence of Ordinances passes by the University regarding the method of recruitment and appointment including service conditions, the decision of the Syndicate should prevail. So, the grievance of the petitioners in O.P. No.924 of 19995 is genuine which has to be redressed by the University. It is therefore, declared that the petitioners and all other employees included in Class IV are entitled to be considered for promotion to the posts of Laboratory Assistants, Clerical Assistants and Ronio Operators, O.P. No. 924 of 1995 is accordingly allowed. The seniority list of Class IV employees will be prepared by the University and promotion to the post of Laboratory Assistants, Clerical Assistants and Ronio Operators will be made by the University as per the quota fixed for promotion within two months from today”. From a reading of the same what I understand is that this Court had directed drawing of a seniority list of all Class IV employees in the University regardless of whether they are Laboratory Assistants, Peons, Sweepers etc. It does not specifically say that from that seniority list appointments could have been made without reference to the qualifications prescribed. 6. Again in Ext.R3(d) judgment also I do not see any decision giving a go by to the qualification of S.S.L.C. in W.P.(c) No.24834/06 9 respect of the University employees. The operative portion of Ext.R3(d) judgment reads thus: “The Registrar, M.G. University shall, on the basis of Section 99(2), for the purpose of the qualifications for appointment to the post of clerical Assistants and Laboratory Assistants, follow the statutes and ordinances of the Kerala University as on 2.10.1983, the date of commencement of the M.G. University Act. If there is no qualification prescribed by the Kerala University by statutes or ordinances, then alone any decision of the Syndicate shall prevail. Therefore it is made clear that, for the purpose of qualification and the method of appointment to the said two posts, the provisions in the ordinance and statutes of the Kerala University and the relaxation thereof as on 2.10.1983 shall be applicable to make appointment in the M.G. University, until ordinances or statutes are issued in respect of M.G. University. So, the said two posts shall be filled up on such basis. If any promotions are made without regard to the qualifications as mentioned above, those promotions shall necessarily be reviewed” In fact, Ext.R3(d) refers to item No.182 of the minutes of the recommendation of the staff committee which is referred to in Ext.R3(c). That being so, Ext.R3 (d) judgment was pronounced after taking into account Ext.R3(c) also and then this Court held as quoted above. In spite of Ext.R3(c), this Court was not prepared to accept Ext.R3(c) order as a relaxation granted, of the qualification prescribed. Instated W.P.(c) No.24834/06 10 this Court categorically held that only if there is no qualification prescribed, any decision of the Syndicate shall prevail. In the above circumstances, I feel that the action of the University in making appointments to the post of Clerical Assistants without reference to the qualifications prescribed by the Ordinance in question is illegal and unsustainable. The power of relaxation given in the Ordinances has to be exercised for valid reasons to be recorded in writing in the decision of the University to take such a conscious act which is conspicuously absent in this case. Therefore I am of opinion that the University shall make appointments to the post of Clerical Assistants strictly in accordance with the Ordinances referred to above. Of course, it would be upto the University to grant relaxation to a set of persons for specific reasons recorded in writing, which should be apparent on the face of the records of such proceedings for appointment. Therefore I direct that the University shall hereinafter make appointments to the post of Clerical Assistants strictly as directed above. Needless to say, in view of the above directions, the case of the petitioners shall also be considered in accordance with the qualifications so prescribed in the existing and ensuing W.P.(c) No.24834/06 11 vacancies to the post of Clerical Assistants. 7. Now the question arises as to whether for this reason the appointments already made of respondents 3 to 14 should be cancelled. From Ext.R3(c) I find that the University had held that appointments to the post of Clerical Assistants from Class IV employees of the University service can be made without reference to the qualification of S.S.L.C. prescribed. The party respondents were appointed pursuant to proceedings dated 13.9.05 and 12.7.06. I do not think that it would be in the interest of justice to interfere with those appointments at this point of time. Therefore I am not inclined to set aside the promotions given by Exts.P4 and P5. 8. Before parting with the case, I am inclined to remind the University of the necessity to have their own Statutes and Ordinances for governing the service conditions of its employees and should not still rely on the Ordinances framed by the Kerala University decades ago. The Kerala University itself has gone forward and amended those Ordinances in accordance with the demands of the times. The Kerala Agricultural University, as also the Cochin University of Science and Technology has prescribed W.P.(c) No.24834/06 12 qualifications to the post of Clerical Assistants as S.S.L.C. without any provision for relaxation of such qualification. Therefore it is imperative that the Mahatma Gandhi University also goes forward in time and does not remain static by holding on to the decades old Ordinances passed by the Kerala University. Section 99(2) of the Mahatma Gandhi University Act, 1985 provides that the same is until they are replaced by the Statutes and Ordinances to be made under the Mahatma Gandhi University Act 1985. Therefore clearly the same was intended only as a transitory provision and not for governing the situation for decades together. I hope that the Mahatma Gandhi University would address itself to these pressing needs of the times. With this fervent hope, I dispose of this writ petition as above. S. SIRI JAGAN, JUDGE Acd W.P.(c) No.24834/06 13