IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 24TH JANUARY 2008 / 4TH MAGHA 1929 WP(C).No. 1431 of 2006(U) ------------------------------------ PETITIONER: ------------------- ACHUTHANANDAN KUNIYIL, PUBLIC RELATIONS OFFICER, UNIVERSITY OF KANNUR, KANNUR. BY ADV. SMT.P.V.ASHA SMT.A.RAJESWARI RESPONDENTS: ------------------------ 1. KANNUR UNIVERSITY REPRESENTED BY ITS REGISTRAR, KANNUR. 2. THE VICE CHANCELLOR, KANNUR UNIVERSITY, KANNUR. ADDL. R3 IMPLEADED. 3. NIZAR K.P., AGED 31 YEARS, S/O. LATE MOIDEEN C., 'SHANAS', ERIPURAM, PAYANGADI, KANNUR DISTRICT. ADDL. R3 IMPLEADED AS PER ORDER IN IA. 5494/06 DT. 7.6.06. BY ADV. SRI.MOHAMMED MUSTAQUE, SC, KANNUR UTY. SRI. K.JAJU BABU, SC, KANNUR UNIVERSITY SRI.S.SHANAVAS KHAN M.SASEENDRAN,SC,KANNUR UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.1431/2006 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ORDER NO. AD.A4/8743/98 DT. 31.10.98 OF THE IST RESPONDENT. EXT.P2:- COPY OF THE LETTER NO.14988/B2/99/H. EDN. DT. 17.11.2000 OF GOVT. EXT.P3:- COPY OF THE CIRCULAR NI.AD.A1/92/03 DT. 18.8.94. EXT.P4:- COPY OF THE MEMO NO.AD.A1/92/03 DT. 9.5.05. EXT.P5:- COPY OF THE ORDER NO.AD. A1/92/03 DT. 13.5.06. EXT.P6:- COPY OF THE ORDER NO.AD.A1/92/03 dt. 29.7.05. EXT.P7:- COPY OF THE REPRESENTATION OF PETITIONER DT. 28.11.05 OF PETITIONER.' EXT.P8:- COPY OF THE REPRESENTATION DT. 16.12.05 OF PETITIONER. EXT.P9:- COPY OF THE REPRESENTATION DT. .6.1.06 OF PETITIONER. EXT.P9A:- COPY OF THE REPRESENTATION DT. 7.1.06 OF PETITIONER. EXT.P10:- COPY OF THE NOTIFICATION DT. 16.12.05. ISSUED BY RESPONDENTS. EXT.P1:- COPIES OF ORDER NO.AD.A1/3490 DT. 13.1.2000 OF IST RESPONDENT. EXT.P12:- COPY OF THE AD.A.F.O/96 DT. 13.1.2000 OF IST RESPONDENT. /TRUE COPY/ P.A. TO JUDGE tss S.SIRI JAGAN, J = = = ======== = = = = = W.P.(C).No. 1431 OF 2006 = = = = = = = = = = = = = Dated this the 24th day of January, 2008. = = = = = = = = == = = = = = = = = = = J U D G M E N T The petitioner in this writ petition was originally working as a Selection Grade Assistant in the University of Calicut. While so, as per Section 79 of the Kannur University Act, applications were invited by the University from employees of other Universities for transfer to Kannur University. Petitioner applied pursuant to that and was absorbed as Selection Grade Assistant in the Kannur University by Ext.P1 order dated 31.10.98. Subsequently, he was promoted as Section Officer in Kannur University in 2001. In the meanwhile, the University sought concurrence of the Government of Kerala for creation of new posts in the University. Government by Ext.P2 order dated 17.10.2000 conveyed concurrence for creation of 15 posts. One of the posts was that of Public Relation Officer. Ext.P2 contained a specific condition that these posts should be filled up by re-deployment of excess staff of Calicut University and no additional grant would be made available from Government funds. In accordance with the said W.P.(C).No. 1431 OF 2006 2 concurrence, the University sought to fill up the post of Public Relation Officer. Willingness from officers of the University, possessing Post Graduate Degree and PG Diploma in journalism and Mass Communication or its equivalent qualification along with record of journalistic activities of not less than 5 years for consideration for appointment to the post was called for by the University by Ext.P3. The petitioner expressed his willingness for being considered for the said post. An interview was conducted as evidenced by Ext.P4 and petitioner was selected and appointed as such, by Ext.P6 order, which contained a specific condition that he will be accommodated against the post of Public Relation Officer till the post of Public Relation Officer is filled up on regular basis by the University. While the petitioner was continuing as Public Relation Officer, he filed several representations seeking regularisation in the post of Public Relation Officer. He also filed Ext.P9 representation for deletion of the clause in Ext.P6, which stipulated that he was accommodated against the post till the post is filled up on regular basis by the University. Those representations have not been disposed of. While so, by Ext.P10 notification the University invited applications for appointment to W.P.(C).No. 1431 OF 2006 3 the post of Public Relation Officer in which the qualifications prescribed were Post Graduation with minimum 2nd class, 50% marks in Mass Communications/Journalism/English and about 2 years experience in the area of public relations in reputed institutions. Petitioner is challenging Ext.P10 to the extent it relates to the post of Public Relation Officer and seeks the following reliefs: a. Call for the records leading to Ext.P10 and to issue a writ of certiorari or other appropriate writ, order, or direction and quash the same to the extent it relates to the post of Public Relation Officer under the 1st respondent, declaring that the action of respondents in issuing Ext.P10 notification and all further proceeding pursuant to that to the extent it relates to the post of Public Relation Officer are illegal; b. issue a writ of mandamus or other appropriate writ, order or direction commanding the 1st respondent not to proceed with Ext.P10 to the extent it relates to that post; c. declare that the appointment of petitioner as Public Relation Officer as per Exts.P4 and P5 are liable to be treated as regular and that he is entitled to be regularised in the post and issue a writ of mandamus or other appropriate writ, order, or direction commanding the 1st respondent to allow the petitioner to continue in the post of Public Relations Officer under the 1st respondent and to regularise him in the post with all consequential benefits. 2. The contention of the petitioner is that in so far as the post of Public Relation Officer was created by Ext.P2, with the specific condition that it shall be filled up by re-deployment of W.P.(C).No. 1431 OF 2006 4 excess staff in Calicut University and no additional grant made available from the Government funds, the University could not have taken steps to fill up the post by direct recruitment from open market as has been done in Ext.P10. Petitioner would further submit that in so far as qualifications have already been prescribed in Ext.P3 circular for the post of Public Relation Officer as Post Graduate Degree and a PG Diploma in Journalism and Mass Communication, the University could not have change the qualifications without a proper amendment of the ordinances in that regard. 3. The University has filed a counter affidavit refuting the contentions of the petitioner. According to them under Section 25(ix) of the Kannur University Act, 1996, it is well within the powers of the syndicate to create administrative, ministerial and other necessary posts, which only has been done in this case by creating the post of Public Relation Officer. University would further contend that the power to create posts would include the power to lay down qualifications for the post also. They would submit that the syndicate, in its meeting held on 8.9.05, had prescribed the qualifications for the post of Public Relation W.P.(C).No. 1431 OF 2006 5 Officer, which only have been included in Ext.P10 notification inviting applications. The condition in Ext.P2 is only to the effect that the post should be filled up by re-deployment of excess staff in Calicut University. They would even go to the extent of submitting that for filling up the post of Public Relation Officer, no concurrence is necessary from the Government, as the syndicate has ample powers to create that post. 4. In answer to the above contentions, the learned counsel for the petitioner would point out that Section 25(ix) is qualified by the proviso that no post shall be created by syndicate without prior approval of the Government, if creation of such post involves expenditure in excess of the budgetary provisions. According to the petitioner the very fact that the University had sought concurrence of the Government for creation of the post itself shows that the creation of the post would involve expenditure in excess of the budgetary provisions. They would further submit that when the post of Public Relation Officer is filled up by direct recruitment a new person would come into the service of the University for paying whose salary there would not have been budgetary provisions and therefore W.P.(C).No. 1431 OF 2006 6 the appointment would involve expenditure. As far as the contention of the University that the syndicate of the University on its meeting held on 8.9.05 had prescribed qualification for the post of Public Relation Officer, the petitioner would contend that, such prescription can only be by amending the ordinances under Section 40 of the Kannur University Act which would further require assent of the Chancellor which has not yet taken place and therefore even if the syndicate prescribes any qualifications that would not take effect until the Chancellor gives assent to the ordinance prescribing qualifications therefor. 5. I have considered the rival contentions in detail. Even before going into the question as to whether under the provisions of the Act, prior concurrence of the Government is necessary to create post of Public Relation Officer, I must say that the very fact that University had sought concurrence of the Government for creation of the post would itself go to very great extent in proving that the University also considered that for creation of that post concurrence of the Government was necessary. Section 25(ix) reads thus: “25. Subject to the provisions of this Act and the statutes W.P.(C).No. 1431 OF 2006 7 the executive powers of the University including the general superintendence and control over the institutions of the University, shall be vested in the syndicate and subject likewise, the syndicate shall have the following powers, namely:- x x x x x x x x (ix) to create administrative, ministerial and other necessary posts: Provided that no post shall be created by the Syndicate without the prior approval of the Government, if creation of such post involves expenditure in excess of the budgetary provisions”; Section 40 further provides thus: 40. Procedure for making Ordinances: (1) The procedure to be followed in making, amending or repealing Ordinances shall be prescribed by the Statues. (2) Every Ordinance or amendment to an Ordinance including repeal of an Ordinance which involves expenditure shall be made only with the prior approval of the Government: Provided that no prior approval of the Government shall be necessary for incurring any such expenditure, if the expenditure involved is not more than then thousand rupees in the aggregate in a financial year. (3) No Ordinance or amendment to an Ordinance including repeal of an Ordinance which involves expenditure shall be valid or come into force unless assented to by the Chancellor. (4) All Ordinances so made and repeal of any Ordinance shall be laid before the Senate during its next succeeding meeting. (5) If any Ordinance or repeal of an Ordinance is not laid before the Senate as required in sub section (4), the Ordinance shall lapse or, as the case may be, the Ordinance repealed shall revive after the next succeeding meeting of the Senate. W.P.(C).No. 1431 OF 2006 8 As contended by the learned counsel for the petitioner, when a new person is appointed from open market as Public Relation Officer, naturally, the University would have to find funds for payment of his salary which would naturally, exceed the budgetary provisions already existing because the budget was not prepared taking into account the funds necessary for payment of salary to the person to be appointed to the post. Therefore the proviso to Section 25(ix) would come into operation in this case, in the matter of creation of the post of public Relation Officer and filling up of the same. In Ext.P2, the post has been sanctioned with a specific condition that post would be filled up by redeployment of excess staff of Calicut University based on option and no additional grant would be made available from the Government funds. The very fact that by Ext.P3 circular University invited willingness from existing officers of the University for being considered for giving additional charge as Public Relation Officer, would show that the University was also aware of these limitations in filling up the post. That is exactly why they have appointed the petitioner who was an existing officer of the University, originally by Ext.P5 W.P.(C).No. 1431 OF 2006 9 giving additional charge and later on by Ext.P6 by giving full charge of Public Relation Officer. Further, in view of Ext.P2 they could not have prescribed any qualification for that post which the existing officers dis not possess because they could have validly filled up the post only by re-deployment of excess staff in the Calicut University based on options. For that purpose, they have prescribed the qualifications in Ext.P3 circular. Therefore without a formal ordinance having been framed by resorting to procedure prescribed under Section 40 they could not have brought any fresh qualification as has been done and incorporated in Ext.P10. 5. For all these reasons I am satisfied that the University could not have made appointments to the post of Public Relation Officer by direct recruitment as sought to be done by Ext.P10. Naturally, therefore Ext.P10 is liable to be quashed. I do so. 6. Now that the petitioner has been occupying the post of Public Relation Officer for the last about three years, it is only appropriate that the University considers Exts.P7, P8, P9 and P9 (A) representations submitted by the petitioner. The university shall consider and pass appropriate orders on these W.P.(C).No. 1431 OF 2006 10 representations as expeditiously as possible at any rate within two months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. S.SIRI JAGAN, JUDGE bkn/-