IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 32222 of 2005(J) -------------------------- PETITIONER(S): --------------- PADMAJAN M.R., STORE KEEPER (AWM), UNIVERSITY OF CALICUT, RESIDING AT MARUTHI, KOLAKATHICHALIL, MALAPPURAM DISTRICT. BY ADV. SRI.E.NARAYANAN RESPONDENT(S): --------------- UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR,CALICUT UNIVERSITY PO THENHIPALAM, MALAPPURAM DISTRICT. SRI.E.S.ASHRAF, SC, CALICUT UNIVERSITY FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.32222 of 2005 ================== Dated this the 18 th day of November, 2009 J U D G M E N T The petitioner was appointed as a Store Keeper (Assistant Warehouse Man) in the Calicut University Press with effect from 28.6.1984. Apart from the qualifications required for the post of Store Keeper (Assistant Warehouse Man), the petitioner also had very many other technical and non-technical qualifications including the qualification prescribed for appointment to the post of Assistant Grade II in the University. The petitioner applied for a category change as Assistant Grade II since he had the requisite qualification of graduation. The syndicate originally resolved to allow the request of the petitioner for category change. Later that resolution was cancelled. The petitioner approached this Court by filing O.P.No.10720/1998. By Ext.P6 judgment, a learned Single Judge of this Court dismissed that original petition. The petitioner filed a writ appeal as W.A.No.2327/2000, which also was dismissed by the Division Bench. Later on, on the ground that the University had changed its policy in regard to category change from technical to non technical posts, pointing out certain instances of granting category change, the petitioner again applied for category change, which was rejected by Ext.P12 communication dated 11.7.2003. In this writ 2 petition the petitioner is challenging Ext.P12 order dated 11.7.2003. This writ petition was filed only on 16.11.2005. The reason pointed out by the petitioner for challenging Ext.P12 that late is that subsequently Exts.P15 and P16 orders have been passed, which would go to show that the University has changed its policy regarding category change. 2. The petitioner's contention is that subsequent to Exts.P6 and P7 judgments of this Court, Ext.P16(d) dated 27.10.2001 was issued by the University, wherein certain compositors in the press have been given category change as Clerical Assistants. The petitioner, therefore, seeks the following reliefs: “i) Declare that the University is duty bound to allow change of category to the petitioner from technical to non-technical post ie. Store Keeper (AWM) to Assistant Grade-II; ii) Call for the records leading to Exhibit P12 and issue writ of certiorari or any other appropriate writ, order or direction setting aside the same; iii) issue a writ of mandamus or any other appropriate writ, order or direction to the respondents directing them to allow change of category to the petitioner from technical to non-technical ie. Store Keeper (AWM) to Assistant Grade-II, as has been done in Ext.P15 and Ext.P16 series with retrospective effect and all other consequential benefits.” 3. The learned standing counsel for the University has filed a counter affidavit controverting the contentions of the petitioner. The University would contend that in view of Exts.P6 and P7 judgments, wherein the petitioner's claim for category challenge has been repelled, the petitioner cannot again file another writ petition on the 3 same cause of action. The counsel for the University relies on the decision of the Supreme Court in STATE OF TAMIL NADU AND OTHERS v. AMALA ANNAI HIGHER SECONDARY SCHOOL [2009 (9) SCC 386], wherein the Supreme Court has held that after an earlier round of litigation, writ petition filed by the same party for the same relief cannot be entertained by the High Court simply because some subsequent representations have been rejected. The learned Standing Counsel further submits Ext.P16(d) was issued to avoid retrenchment of certain employees, who were in excess in the University press. 4. I have considered the rival contentions in detail. 5. The University is a statutory creature. Therefore, the University is bound by the legislation by which the University was created and the Statutes and Regulations made thereunder. It is not disputed before me that there is no provision in the Acts, Statutes or Regulations, which permits the University to effect category change from a technical post to non technical post and vice versa except in the case of typists who could seek category change as Assistants Grade II as per the amendment to the University Ordinances by Amendment Ordinance dated 6.10.2004 published in the official gazette. Executive orders can be issued by the University only in respect of matters not covered by the Statutes and Ordinances. Here the method of appointment is fixed by Statutes and the field is therefore occupied by 4 a legislation. This is all the more so since to Assistant Grade II only Typists can seek category change. That being so, the University has no power whatsoever to effect category change from one post to another whatever be the administrative exigency. The petitioner is actually seeking a direction to the University to do something for which they have no power to. Even assuming that by Ext.P16(d) some persons have been given category change, that does not ipso facto give any right to the petitioner to seek category change in so fas as the University has no power to issue even Exts.P16(d). The Supreme Court of India has in more than one decision frowned upon negative discrimination. Simply because some other employee has obtained some illegal benefit, the petitioner cannot seek the same illegal benefit on the ground of discrimination. Further, the petitioner's earlier request for category change has been negatived by this Court by Exts.P6 and P7 judgments. Therefore, on any count, the petitioner is not entitled to the relief prayed for. Accordingly, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 5