IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).No. 29676 of 2009(D) -------------------------- PETITIONER(S): --------------- K.J.KURIVILA, ADMINISTRATIVE ASSISTANT KERALA AGRICULTURAL UNIVERSITY POULTY AND DUCK FARM MANNUTHY. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SRI.RAMESH. C.R. RESPONDENT(S): --------------- 1. KERALA AGRICULTURAL UNIVERSITY REPRESENTED BY ITS REGISTRAR, VELLANIKKARA THRISSUR, PIN-680656. 2. THE VICE CHANCELLOR, KERALA AGRICULTURAL UNIVERSITY, VELLANIKKARA, THRISSUR, PIN-680656. 3. P.K. MOHANAN, ADMINISTRATIVE ASSISTANT, FARMING SYSTEMS RESEARCH STATION, SADANANDAPURAM, UNDER ORDERS OF PROMOTION AS LABOUR OFFICER, KERALA AGRL. UNIVERSITY, VELLANIKKARA. ADDL. R3 IS IMPLEADED AS PER ORDER DT. 3-3-2010 IN I.A. NO. 1220/2010. ADV. SRI.K.P.MUJEEB, SC, KERALA AGRI UNIVER FOR R1 SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R3 SRI.B.UNNIKRISHNA KAIMAL FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-3-2010 ALONG WITH CCC NO. 159 OF 2010 THE COURT ON 17/05/2010, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 29676/2009. --------------------------------------------------------------------- EXT.P1 TRUE COPY OF CIRCULAR DT. 7-8-2008. EXT.P2 APPLICATION DT. 29-8-2008. EXT.P3 LETTER DT. 29-8-2008. EXT.P4 REPRESENTATION DT. 9-9-2009. EXT.P5 RELEVANT EXTRACT OF MINUTES OF THE MEETING. EXT.P6 TRUE COPY OF B.A. DEGREE IN ECONOMICS. EXT.P7 M.A. DEGREE IN ECONOMICS. EXT.P8 LETTER DT. 4-6-1997. EXT.P9 LETTER DT. 7-5-1997. EXT.P10 TRUE COPY OF NOTE TO THE EXECUTIVE COMMITTEE. EXT.P11 ORDER DT. 23-1-2010. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R1(f) ORDER DT. 28.1.2010. EXT.R1(g) EXTRACTOF KERALA SERVICE MANUAL. EXT.R3(a) ORDER DT. 24-6-1976. EXT.R3(b) NOTIFICATION ISSUED BY P.S.C. EXT.R3(c) LETTER DT. 27-9-1997 EXT.R3(d) MINUTES DT. 22-5-1990. EXT.R3(e) NOTE DT. 9-11-1993. EXT.R3(f) NOTE DT. 30-10-2004. EXT.R3(g) RELEVANT PORTION OF MINUTES. EXT.R3(h) ORDER DT. 28-1-2010. EXT.R1(h) NOTIFICATION OF P.S.C. EXT.R3(i) CERTIFICATE DT. 11-4-2003. EXT.R3(j) MARK LIST DT. 12-12-2009. EXT.R3(k) MARK LIST DT. 14-10-1980. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 29676 of 2009 and Cont. Case (C) No. 159 of 2010 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th day of May, 2010 J U D G M E N T Contempt Case (Civil) No. 159 of 2010 is filed alleging non- compliance with the interim order dated 12-1-2010 in W.P. (C) No. 29676 of 2009 and since the issues to be decided in both are the same, both were heard together and are being disposed of by this common judgment. 2. The petitioner in the writ petition was working as an Administrative Assistant in the Poultry and Duck Farm of the 1st respondent-Kerala Agricultural University at the time of filing this writ petition, which post is in the cadre of Section Officer. During the pendency of this writ petition he was promoted as Assistant Comptroller (DD&A) at the Headquarters of the University at Vellanikkara. He has the educational qualification of M.A. degree in Economics. By Ext. P1 circular dated 7-8-2008, the registrar of the 1st respondent University directed employees of the University, who are willing to be considered for appointment to the post of Labour Officer of the University, to submit their bio-data in the prescribed proforma appended to the circular on or before 31-8-2008. The circular stated that the post of Labour Officer in the University had to be filled with effect from 1-10-2008, as the person holding the post of Labour Officer was due to retire from service on superannuation with effect from 30-9-2008. The circular reproduced the method of recruitment to the post as per the statutes applicable as follows: (1) by promotion from any other post in the Kerala Agricultural University service (Note – Other things being equal promotion shall be in the order of W.P.C. 29676/09 & COC No. 159/10 -: 2 :- seniority) (2)by direct recruitment if candidates are not available under item (1) above The qualifications prescribed for the post of Labour Officer were reproduced as follows: (1)Graduate of a recognised University (2)A Degree or Diploma in Social Science recognised by the Government of Kerala. (Note: Other things being equal, preference shall be given to candidates who have experience in handling labour laws and labour problems. 3. The petitioner submitted Ext. P2 bio-data dated 29-8-2008, in the prescribed proforma, since according to him he had the qualifications so prescribed, which was forwarded by his superior officer to the Registrar of the University under cover of Ext. P3 letter dated 29-8-2008. Since till September 2009 no steps were taken pursuant thereto, the petitioner, through the Professor and Head of the Poultry and Duck Farm, filed Ext. P4 representation dated 9-9- 2009 to the Registrar of the University. While so, he came to understand that the Executive Committee of the University, by Ext. P5 minutes of its meeting dated 23-9-2009, had resolved to conduct the selection to the post of Labour Officer only after the statutes are amended and appointed a committee consisting of the Chairman of the Establishment Committee and Dr. K. Aravindakshan, to study the matter. Originally, the petitioner filed the writ petition challenging Ext. P5 minutes of the Executive Committee of the University, seeking a mandamus to the University to appoint the petitioner as Labour Officer pursuant to Ext. P1 circular with retrospective effect from the date of occurrence of vacancy, viz. 1-10-2008. W.P.C. 29676/09 & COC No. 159/10 -: 3 :- 4. The writ petition came up for admission from 21-10-2009 onwards and was being adjourned from time to time to enable the standing counsel for the University to get instructions on the same. When the writ petition came up for admission on 12-1-2010, the Standing Counsel for the University submitted that the University has taken a decision to fill up the post of Labour Officer in accordance with the existing rules and to take steps for the same. In view of the submission of the counsel, this court directed the respondents 1 and 2, who were the only respondents in the party array then, to see that the post of Labour Officer is filled up in accordance with the rules existing as on that day within a period of six weeks from that date. 5. Thereafter, by Ext. P11 order dated 23-1-2010, the Registrar of the University appointed the 3rd respondent as Labour Officer. Complaining that the appointment of the 3rd respondent is in violation of the undertaking before this court on 12-1-2010, in so far as the petitioner being the senior most qualified person as per the rules existing, was overlooked for appointing the 3rd respondent, the petitioner filed the above contempt case. Later on, he got the writ petition amended incorporating challenge against Ext. P11 order also and impleaded the 3rd respondent as additional respondent. Since both in the writ petition and the contempt case, the issue to be decided ultimately was the same, both were heard together. 6. The petitioner’s contention is that the petitioner’s post- graduate degree being in Economics, which is a degree in Social Science and is the qualification prescribed as per the existing rules, he is entitled to be appointed as Labour officer, in preference to the 3rd respondent, since the petitioner is senior to the 3rd respondent in University service. In support of his contention he has produced Exts. P6 and P7, which are his degree and post-graduate degree certificates W.P.C. 29676/09 & COC No. 159/10 -: 4 :- in Economics, which also shows that the subject of Economics comes within the Faculty of Social Sciences as per the University Laws. He has also produced Ext. P8 communication issued by the Government of Kerala forwarding Ext. P9 letter from the University of Kerala to the Government clarifying that the Faculty of Social Science of the University consists of the subjects, Economics, Sociology, Psychology, History, Politics, Social Works and Islamic Studies and that the subject Law comes under the Faculty of Law and not under the Faculty of Social Science. 7. Counter affidavits have been filed by the respondents 1 and 2 as well as the 3rd respondent. The stand taken by the University, essentially is that the Government of Kerala has not recognised a degree in Economics as a degree in Social Science. Their contention is that although Economics and Psychology came under the broad category of Social Sciences, those subjects have little relevance and application in the functional field of the post of Labour officer. They would contend that in the year 1996, a candidate having degree in Economics was appointed as Labour Officer in the University, which although was challenged by another candidate by filing O.P. No. 9718/1996 before this Court, was not finally decided on merits, as the same was dismissed as infructuous. It is further submitted that the Justice Bhaskaran Nambiar Commission appointed for enquiring, inter alia, into the irregularities in appointments in the University, came to the conclusion that the said appointment was illegal, since the person appointed did not have the essential qualification of a degree or diploma in Social Science. The Government of Kerala has accepted the recommendation of the Commission and therefore the degree in Economics has not been recognised by the Government of Kerala as a degree in Social Science. It is also submitted that the University is in W.P.C. 29676/09 & COC No. 159/10 -: 5 :- the process of amending the statute suitably, commensurate with the duties and functions of the post of Labour Officer. They now take the stand that since degree in Economics is not a prescribed qualification, the petitioner is not qualified to be appointed as such and therefore the 3rd respondent who holds M.A. degree in Sociology, which is a degree in Social Sciences, was appointed to the post, as the next senior-most person possessing the requisite qualifications. According to the respondents 1 and 2, the action of the University is perfectly in accordance with the recruitment rules and is not liable to be interfered with by this court, on the grounds raised by the petitioner, in the writ petition. 8. While taking identical contentions, the 3rd respondent elaborates on the same with some more materials, which strangely the other respondents have not produced, although actually most of those materials are materials available in the files of the University. According to him, the question as to whether a degree is in Social Science or not, cannot be decided on the basis of grouping of the subjects under a Faculty, but has to be decided based on the contents of the course and subject of study. He submits that although the subjects of Economics, Sociology, Psychology, History, Politics, Social Works and Islamic Studies are grouped in the Faculty of Social Science, the subject contents of study in Economics does not involve subjects which come under Social Science. He would submit that if degrees in all the subjects coming within the faculty of Social Science are to be accepted as degrees in Social Science, then degrees in History, Politics, Social Works and Islamic Studies would also have to be accepted as such, which would be irrational and against the requirements of the post of Labour Officer. He contends that the duties and functions attached to the post of Labour Officer in the W.P.C. 29676/09 & COC No. 159/10 -: 6 :- Kerala Agricultural University are enumerated in Exhibit R3(a) University Order dated 24-6-1976. A degree in Sociology is in keeping with the duties and functions attached to the post, whereas the degree in Economics has no relevance to the duties and functions attached to the post of Labour Officer in the University. Formerly, the qualifications and method of appointment to the post were regulated by executive orders and statutes prescribing the qualifications and method of appointment were framed as per GO (MS) No. 34/82 dated 15-1-1982. The qualifications included therein were the same as per the special rules for appointment to the post of Assistant Labour officer, Grade II, in the Kerala Labour Subordinate Service. But later the Government amended the special rules for Assistant Labour officer, Grade II, in the Kerala Labour Subordinate Service as follows: 1. B.A., B.Sc., or B.Com. degree awarded by a recognised University; 2. A degree or Diploma in Social Service or Post-graduate diploma in Sociology recognised by the Government or Degree of bachelor of Industrial Law awarded by the Cochin University of Science and Technology or other equivalent qualifications. In support of that contention he has produced notification issued by the Public Service Commission inviting applications for the said post as Ext. R3(b). (Note – in the counter affidavit degree or diploma in Social Science is mentioned as the qualification prescribed by Ext. R3 (b), but in Ext. R3(b), the words used is degree or diploma in Social Work). He points out that when one Mr. M.N Sasidharan, possessing the qualification of M.A. (Economics) was appointed as Labour Officer in 1996, another candidate challenged the same by filing O.P. No. 9781/1996 and the Justice Bhaskaran Nambiar Commission entered a W.P.C. 29676/09 & COC No. 159/10 -: 7 :- finding that Post-graduate degree in Economics cannot be treated as a degree in Social Science within the meaning of the statutes and that the University should concede before the High Court that the appointment is irregular. By Ext. R3(c) letter, the Government accepted the recommendation also. He points out that in the meantime, the University had, as early as in 1988, initiated steps for amending the qualifications for the post. By Ext R3(d), the Statute Sub Committee of the University recommended to amend the qualification as Masters degree in Sociology as the essential qualification and LL.B degree, Diploma in Social Welfare and experience in handling Labour laws and Labour problems as desirable qualifications. By Ext. R3(e), the Executive Committee accepted the recommendation, with the change of Degree in Law as the essential qualification. By Ext. R3(f), the Executive Committee again authorised the Statute Sub Committee to prepare a proposal for amendment of the qualifications for the post of Labour Officer. But the same was not proceeded with. The 3rd respondent seeks to rely on certain observations of two Division Benches of this Court in Mukesh V. State of Kerala 2006 (4) KLT 1023 and The Kerala Agricultural University and another V. P. Bhaskaran and another (W.A. No. 313/2004) to buttress his arguments. On these contentions the 3rd respondent would argue to sustain his appointment as Labour Officer. 9. I have considered the contentions of the parties in the light of the pleadings of the parties and arguments advanced before me by counsel on both sides. 10. At the outset I must state that ideally, the qualifications prescribed for a post should be commensurate with the duties and functions attached to the post. I have no doubt in my mind that the ideal qualification for the post of Labour officer would be a Degree in W.P.C. 29676/09 & COC No. 159/10 -: 8 :- Law. To a far lesser extent, degree in Sociology would be better qualification than degree in Economics. I am really surprised that even after more than two decades of perceiving the necessity to amend the qualifications in tune with the duties and functions of the post, and even after the Justice Bhaskaran Nambiar Commission recommended the same, which recommendation was accepted by the Government in 1997, neither the University nor the Government had, taken the proposal to its logical conclusion, which can be termed as nothing but inefficiency at its worst. At this pace, the University would not achieve the progress it seeks to achieve anywhere in the near future. 11. But, notwithstanding my said opinion, the question to be decided in this case is as to whether as per the existing statutes, without amendment of the same, the petitioner can be denied the relief he seeks, on the ground that the degree in Economics is not a degree in Social Science, which is the qualification prescribed by the Statute, when the Universities awarding degrees in this State classify a degree in Economics as a degree in Social Science as per the statutes/ordinances. I am also bound to decide the case before me on the basis of the decision on that issue and not on the basis of my opinion as to what would be the qualifications best suited for the post. The argument of the University in this regard appears to be too far fetched for acceptance. Their contention is that as per the statute, the degree the candidate possesses should be one recognised by the Government of Kerala as a degree in Social Science. The standing counsel raised another contention also during arguments that the Government of Kerala should have recognised the degree as one suitable for the post of Labour Officer. Both the contentions do not find favour with me. The counsel could not satisfy me that there is an W.P.C. 29676/09 & COC No. 159/10 -: 9 :- established procedure or precedent, by which the Government of Kerala recognise or have at any time recognised any degree as a degree in a particular subject. Of course the Government of Kerala do recognise a degree of a particular university or institution as equivalent to degrees of the Universities in Kerala, for the purpose of employment in its services, but not as a degree in a particular subject. I am of the opinion that such functions are actually left and best left to the experts in the field viz. the Universities. Admittedly what is prescribed by the statute as qualification for the post is a Degree or Diploma in Social Sciences recognised by the Government of Kerala. Therefore, if a particular degree in Social Science is recognised by the Government of Kerala and the same is a degree in Social Sciences, the same is sufficient qualification. It is not further necessary that the Government should have recognised the degree as a degree in Social Science. The Government does not exercise such functions and cannot be expected to exercise such functions also, since the question as to whether a particular degree is a degree in Social Science is to be decided on the basis of statutes of the University governing that issue and not on the basis of what are the general perceptions as to what all subjects should be classified as subjects in Social Science. As such I do not find any merit in the contention of the counsel for the University that the Government of Kerala has not recognised degree in Economics as a degree in Social Science and as a qualification for the post of Labour Officer in the 1st respondent University and therefore the petitioner possessing the degree in Economics cannot be considered as having the prescribed qualification for the post. 12. Although the argument of the 3rd respondent sounds attractive at first blush, I am not inclined to accept the same also. Neither of the two decisions cited by the counsel for the 3rd W.P.C. 29676/09 & COC No. 159/10 -: 10 :- respondent throws any light on the issue. Paragraphs 13 and 14 of the decision in Mukesh’s case (supra) read thus: “13. Can degree in Sociology (or M.A in Sociology) be equated with degree in Social Work or Social Science? This is the moot question. For this, the relevant academic law has to be considered. Going by the clause 2(2) Chapter V of the First Ordinance of the Kerala University, in the faculty of Social Sciences, there are several Departments like (1) History, (2) Political Science, (3) Economics, (4) Psychology, (5) Islamic Studies, (6) Sociology, (7) Social Work and (8) Archeology. This Ordinance is accepted by the Mahatma Gandhi University as per Section 99(2) of the M.G. University Act, 1985. No separate Ordinance is framed by that University. Thus, within the faculty of Social Science, there are separate Departments, including the Departments of Sociology and of Social Work. Therefore, these are two different Departments of Studies. In the Government Order, referred to above, providing for the qualification for the post in question, the relevant stipulation is a Degree or Diploma in Social Services/Social Work. It does not stipulate a Degree or Diploma in Sociology, which is a different department of study as compared to Social Work. In such circumstances, observations of the learned Single Judge that “Social Service or Social Work, as understood in common parlance, cannot be equated with Sociology” is justified, because University of Kerala and M.G. University have constituted different departments of Sociology and Social Work in the Faculty of Social Sciences. Therefore, a person of reasonable intelligence, as observed by the learned single Judge, will not perceive that a Degree in Sociology will be treated as a Degree in Social Service or Social Work. 14. The candidates are awarded degree either in Sociology or in Social Work or in Social Services by the University concerned. Necessarily, a candidate with M.A.. Sociology can very well conceive that he is not a degree holder in Social Work or Social Services. Ordinarily, such candidates of reasonable thinking, going by the method of study and regulations of the University, as applicable to them, will not conceive that Exhibit P1 notification will cover them as well and will not, therefore, respondent to the notification. If, ingenuously, any one, disregarding this, applies for the post, a situation will arise, if the reasoning of the PSC is accepted, as if he is qualified. It will be defeating the rights of other persons similarly situated. Therefore, the learned single Judge was well justified to hold that Exhibit P1 notification did not take in degree holders in Sociology, but only covered the degree holders in Social Work or Social Service, as the case may be, as specifically stipulated in Ext. P1 notification and the Government Order, referred to above.” W.P.C. 29676/09 & COC No. 159/10 -: 11 :- In that decision the question was whether a degree in Sociology can be equated with a degree in Social Work or Social Science. There the decision was that because the University of Kerala and the M.G. University have constituted different departments of Sociology and Social Work in the Faculty of Social Sciences, the finding that “Social Service or Social Work as understood in common parlance cannot be equated with Sociology” is correct. The question herein is a more general question as to whether a degree in Economics, which is included in the Faculty of Social Sciences by the University is a degree in Social Sciences. If at all, the decision can be construed only in favour of the petitioner and not against him. In W.A. 313/2004, the question was as to whether a degree in Sociology is a degree in Social Science, which has been answered in the affirmative by the Division Bench, which also would not help us to resolve the issue involved in this case. In fact in both cases this Court derived support for the conclusions from the University Acts and Ordinances, which would prompt me to hold that ultimately the issue involved in this case, should also be resolved in accordance with the University Acts and statutes/ordinances. 13. As is clear from the decision in Mukesh’s case (supra) as also the University laws, the Universities within the State of Kerala have framed Statutes/Ordinances constituting various Faculties under them. They have by the Statutes/Ordinances so framed, chosen to classify the subjects of Economics, Sociology, Psychology, History, Politics, Social Works and Islamic Studies within the Faculty of Social Science. Degree certificates in all these subjects are issued with the superscript “Faculty of Social Sciences” as evidenced by Exhibits P6, P7, R3(i), R3(j) and R3(k). The very same authority who has framed W.P.C. 29676/09 & COC No. 159/10 -: 12 :- those Statutes/Ordinances have framed the statutes prescribing the qualifications for various posts including those of Labour Officer. Therefore, it must be presumed that the authority which framed the statutes regarding qualifications was aware of the other statutes as well. Therefore, the decision to include a degree/diploma in Social Science as a qualification for the post must have been made fully aware of the fact that the subjects in the faculty of Social Sciences include Economics, Sociology, Psychology, History, Politics, Social Works and Islamic Studies. The fact that the qualification of Economics, Politics, Psychology or even Islamic Studies,