Abdul Jaleel K. v. Director of the Collegiate Education, Office of the Director of Collegiate Education, Thiruvananthapuram; The Manager, Farook College (Autonomous); The Principal, Farook College (Autonomous)

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 4 TH DAY OF MARCH 2022 / 13TH PHALGUNA, 1943 WP(C) NO. 7665 OF 2021 ``` ``` PETITIONER/S: ``` ``` ABDUL JALEEL K., AGED 34 YEARS, S/O. MOIDUTTY, MECHANIC, DEPARTMENT OF PHYSICS, FEROOK COLLEGE, RESIDING AT SWATHI HOUSE, FAROOK COLLEGE POST, PIN – 673632. ``` ``` BY ADVS. P.K.IBRAHIM SMT.K.P.AMBIKA KUM.SREEJI K.B. ``` ## `RESPONDENT/S:` ``` 1 THE DIRECTOR OF THE COLLEGIATE EDUCATION OFFICE OF THE DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM – 695033. 2 THE MANAGER FAROOK COLLEGE(AUTONOMOUS), FAROOK COLLEGE P.O, CALICUT, PIN – 673632 3 THE PRINCIPAL FAROOK COLLEGE(AUTONOMOUS), FAROOK COLLEGE P.O, CALICUT, PIN - 673632. ``` ``` BY ADVS. P.CHANDRASEKHAR K.K.MOHAMED RAVUF SATHEESH V.T. RANI MADHU MANJARI G.B. ``` WP(C) NO. 7665 OF 2021 2 ``` SRI.P.S.APPU,GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) NO. 7665 OF 2021 3 **“CR”** ## **J UD G M E N T** By Ext.P7 order as confirmed by Ext.P10 order, the promotion of the petitioner, who was working as a mechanic in the Farook College, was rejected by the 1st respondent on the ground that as per Chapter 3 Statute 41 of the Calicut University First Statute 1979, the post of Mechanic is not a feeder category post for promotion to the post of LD clerk. The above orders are under challenge in this writ petition. 2. Brief facts as borne out from the records and pleadings are as under: The petitioner has completed his Plus Two and has passed the ITI (Electronic Mechanic) and was appointed as a Last Grade Servant in the Farook College on 30.5.2014. He was promoted as a Mechanic with effect from 1.6.2015. 3. While so, Exhibit P4 circular was issued by the 1st respondent on 24.11.2018 reiterating that persons with SSLC qualification and working in the post of Mechanic, Herbarium keeper, Lab/Library Assistant, Office Attendant, Gardener, Specimen collector, LD Computer Assistant are WP(C) NO. 7665 OF 2021 4 entitled to promotion as Clerk on completion of one year in the aforesaid post. 4. It is contended by the petitioner that Ext.P4 circular was issued by the 1st respondent taking note of Statute 41 in Chapter 3 of the Calicut University (Conditions of Service of the Teachers and Members of Non-Teaching Staff) First Statutes, 1979 which reads as follows: ## **CHAPTER 3** ## **Conditions of service of Members of Non-Teaching** ## **staff** **41. Qualification for appointment** .-The minimum qualifications for the various categories of non-teaching staff in Private Colleges (including Oriental Title Colleges) shall be as follows.- |1|Senior Superintendent|S.S.L.C or equivalent Examination with a pass in<br>the manual of office procedure and Account Test<br>(Lower) conducted by the Public Service<br>Commission| |---|---|---| |2|Junior Superintendent|-do-| |3|Head Accountant|-do-| |4|Upper Division Clerk/Upper<br>Division Accountant|-do-| |5|Lower Division Clerks/Lower<br>Division Store-keepers/ Lower<br>Division Accountants|(a)S.S.L.C. or equivalent Examination with a pass<br>in the Manual of Office Procedure for earning the<br>third increment. The nonclerical staff i.e, the Lower<br>Division Typists in Private Colleges who are<br>matriculates and who are either in regular<br>permanent service or have put in three years of<br>service<br>as<br>on<br>31-3-1971<br>are<br>eligible<br>for<br>appointment as Lower Division Clerks on the basis<br>of their seniority subject to the condition that their<br>continuance will be subject to the passing of| WP(C) NO. 7665 OF 2021 5 competitive test conducted by the Public Service Commission. The Technical Staff like Library/Laboratory Assistants Gasman Specimen Collectors etc. having a lower scale of pay than the L.D.clerks and who have five years of service with SSLC and have passed the clerical test conducted by the Kerala Public Service Commission may be promoted on the basis of seniority in the lower cadre. Qualified hands, if available, shall be given preference before recruiting person from outside. Provided that the non-clerical staff i.e, Library/Laboratory Assistants and Peons including Technical Staff like Gasman. Specimen Collectors etc., who are matriculates and who are either in regular permanent service or have put in 3 years of service as on 31-3-1971 are eligible for appointment in the order of their seniority as L.D.Clerks. Their continuance as L.D. Clerks shall, however, be subject to their passing in one of the four consecutive annual competitive tests conducted by the Kerala Public Service Commission for the low paid employees for appointment as clerks etc. after the commencement of these Statutes. Such of those who remain unqualified in the test even after the four consecutive chances shall be reverted to their original posts. In the case any person whose promotion has already been approved by the Director of Collegiate Education before the commencement of these Statutes, such promotion shall be deemed to have been validly made. (b) Such promotees from the category of Library/Laboratory Assts. Are eligible for further promotion as U.D.Clerks, in case of delay in conducting the competitive tests. 5. Relying on Serial No.5, it is stated that non-clerical staff, i.e., Library/Laboratory Assistants and Peons including Technical Staff like Gasman, Specimen Collectors etc. who had matriculated and who are either in regular permanent service or have put in 3 years of service as on 31.03.1971 are eligible for appointment in the order of their seniority as LD Clerks. WP(C) NO. 7665 OF 2021 6 6. In terms of the provisions of the Statute, promotions have been granted to Mechanics as Clerks in the services of aided colleges affiliated to Calicut University and such appointments have been approved by the 1st respondent. Reliance is placed on Ext.P2 order dated 14.03.2018 issued in the case of one Arjun Verma and Ext.P3 order dated 20.07.2016 issued in the case of Sri.Joseph. It is contended that both of them were working as Mechanics and they were promoted as LD Clerks, which promotion was approved by the 1st respondent. 7. The 2nd respondent considering the claim of the petitioner issued Ext.P5 order promoting the petitioner as Clerk with effect from 01.06.2019 on condition that the petitioner shall pass clerical test/eligibility test (Manual of Procedure Test) within two years from 01.06.2019. The said order was forwarded for approval to the 1st respondent. However, by Ext.P7 order the 1st respondent refused to grant approval on the ground that a person working as a Mechanic is not entitled to be granted by-transfer promotion in the light of the relevant provisions in the First Statute. Though the petitioner submitted Ext.P8 representation seeking reconsideration, the same was again rejected by Ext.P10 order. 8. The petitioner contends that in Ext.P14 information issued WP(C) NO. 7665 OF 2021 7 under the Right to Information Act, the 1st respondent has conceded that persons in the post of Mechanics are entitled to promotion as Clerk. It is also contended that promotions have been granted to individuals based on the above premise and the petitioner alone cannot be discriminated against. It is in the afore circumstances, that the petitioner is before this Court seeking the following reliefs: i) Call for the records leading to Ext.P7 and P10 and quash them by issuing a writ of certiorari or any other appropriate writ order or direction. ii) Declare that the post persons in the post of Mechanic are entitled to promotion as Clerk subject to satisfying the conditions stipulated in the Ext.P1 statutes and issue consequential direction to the 1st respondent to approve Ext.P5 appointment order. 9. A counter affidavit has been filed by the 1st respondent. It is contended that though a few Mechanics have been appointed as LD clerks on the basis of the statutory provisions, the Registrars of various Universities have informed the 1st respondent that the post of Mechanic has not been included as one among the feeder category for the post of LD Clerks. It was in the said circumstances that the approval was rejected. It is further stated that clarifications were sought from the Government and Annexure R1(a) has been issued wherein it is stated that WP(C) NO. 7665 OF 2021 8 the post of Mechanic is not included among the feeder category for promotion to the post of LD Clerk and hence the post of Mechanic is not eligible for by-transfer appointment/promotion to the post of LD Clerk in the colleges. 10. A counter affidavit has been filed by respondents 2 and 3 supporting the contentions of the petitioner. It is stated that the petitioner is in the permanent employment of the Farook College and has been working as a Mechanic with effect from 01.06.2015 and therefore is fully qualified to be appointed as LD Clerk. It is contended that the University is not bound by the clarifications issued by the Government as the University is an autonomous body governed by the Calicut University Act and the Statutes framed thereunder. It is further contended that when the Statute provides for appointment to the post of LD Clerk from among technical staff and the enumeration is “technical staff like Library/ Laboratory Assistants/ Gas Man/ Specimen Collectors etc”, the enumerated category would include all technical staffs including a Mechanic. 11. A reply has been filed by the petitioner to the counter affidavit filed by the 1st respondent. It is stated that the Registrar of Calicut University by Ext.P15 communication has informed the Principal, WP(C) NO. 7665 OF 2021 9 St.Joseph’s College, that Mechanics in private aided colleges are entitled to promotion to the Lower Divisional Clerk/Lower Division Store Keeper/Lower Division Accountants. It is also stated that this Court in identical circumstances has rendered Ext.P16 judgment holding that Ext.R1(a) issued by the Government, cannot be sustained and orders were issued to grant promotion in terms of the Statutes. 12. I have heard the submissions of Smt.K.P.Ambika, the learned counsel appearing for the petitioner, Smt.Surya Binoy, the learned Government Pleader and Sri.P.C.Sasidharan, the learned Standing counsel appearing for the Calicut University. 13. The entire controversy revolves around Statute 41 in Chapter 3 of the Calicut University (Conditions of Service of the Teachers and Members of Non-Teaching staff) First Statutes, 1979. 14. The minimum qualification for the various categories of non-teaching staff in private colleges is provided in Statute 41 which has already been extracted. The qualification for appointment to Lower Division Clerk/Lower Division Storekeepers/ Lower Division Accountants has been prescribed therein. We are concerned with the proviso to Clause (a) of Statute 41 which reads as follows: WP(C) NO. 7665 OF 2021 10 Provided that the non-clerical staff i.e, Library/Laboratory Assistants and Peons including Technical Staff like Gasman. Specimen Collectors etc., who are matriculates and who are either in regular permanent service or have put in 3 years of service as on 31-3-1971 are eligible for appointment in the order of their seniority as L.D.Clerks. 15. The 1st respondent while denying approval to the promotion contends that the post of Mechanic is not included in the feeder category. However, the provision says that nonclerical staff ie., Library/Laboratory Assistants and Peons including Technical Staff like Gasman, Specimen Collectors etc., can be included. What is of importance is the use of ‘etc.’ after gasman and specimen collectors. In P.Ramanatha Aiyar’s Law Lexicon, Fourth edition, ‘etc.’ has been defined thus. Etc or & C is an abbreviation of Et Cetera, and therefore may mean and others, and so forth; and the rest; other things; other things of the same character, or only those things ejusdem generis , Custom, the intention of the parties, the context, and the manner and place in which the abbreviation is used may govern its meaning; but where it can have one certain meaning, it will be given that meaning; although as sometimes used it is considered as meaningless and without effect, and is often disregarded as surplusage (Cyc) 16. The Latin expression “ejusdem generis” which means “of the same kind or nature” is a principle of construction, meaning thereby when general words in a statutory text are flanked by restricted words, the WP(C) NO. 7665 OF 2021 11 meaning of the general words are taken to be restricted by implication with the meaning of the restricted words. This is a principle that arises “from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context”. It may be regarded as an instance of ellipsis or reliance on implication. This principle is presumed to apply unless there is some contrary indication [See **Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal** , (2010) 3 SCC 786)]. 17. Words of a general nature following specific and particular words should be construed as limited to things that are of the same nature as those specified. But the rule is one that has to be “applied with caution and not pushed too far”. It is a rule which must be confined to narrow bounds so as not to unduly or unnecessarily limit general and comprehensive words. If a broad-based genus could consistently be discovered, there is no warrant to cut down general words to dwarf size. If giant it cannot be, dwarf it need not be, (See **U.P. SEB v. Hari Shankar Jain,** (1978) 4 SCC 16, 29) 18. In Bennion on Statutory interpretation 5th edition Part XXVIII Page 1234, it is stated that for the ejusdem generis principle to apply there WP(C) NO. 7665 OF 2021 12 must be a sufficient indication of a category that can properly be described as a class or genus even though not specified as such in the enactment. The nature of the genus is gathered by implication from the express words which suggest it. The most common case for the application of the ejusdem generis principle is where a phrase beginning with genus describing terms is concluded by wider residuary words. 19. The ejusdem generis rule strives to reconcile the incompatibility between specific and general words. This doctrine applies when (i) the statute contains an enumeration of specific words; (ii) the subjects of the enumeration constitute a class or category; (iii) that class or category is not exhausted by the enumeration; (iv) the general term follows the enumeration; and (v) there is no indication of a different legislative intent (See **Amar Chandra Chakraborty v. Collector of Excise** , (1972) 2 SCC 442). 20. I am of the view that usage of “etc” after enumerating technical staff like Gasman, Specimen collectors was with the intent to include all similar technical staff like mechanics as well. As discussed earlier “etc” would mean other things of the same character, or those things ejusdem generis. Furthermore, as is evident from the statutes, WP(C) NO. 7665 OF 2021 13 qualification wise there is no difference between Gas Man, Specimen Collectors and Mechanics. Serial No 7, 8, and 11 which detail the qualification for the posts are extracted below for convenience. |7|Mechanic|VIII Standard with I.T.I qualification. In the absence of ITI<br>Certificate holders, those with experience as a mechanic or<br>fitter in a well equipped workshop for a period of 3 years with<br>VIII Standard educational qualifications.| |---|---|---| |8|Gasman|VIIIth Standard with ITI (Electrical) qualification. In the<br>absence of ITI Certificate holders, those with experience as an<br>Electrician in a well equipped workshop for a period of 3 years<br>with VIII Standard educational qualification.| |11|Specimen Collector|Literacy in English and Regional Language with experience in<br>collection of specimen from local area.| If Gas Man and Specimen Collector can be included, there is no justification on the part of the respondents in taking a stand that the enumerated category would include all technical staff but will not include a Mechanic. As held by the Apex Court in Hari Shankar Jain (supra) if a broad-based genus could consistently be discovered, there is no warrant to cut down general words to dwarf size. If giant it cannot be, dwarf it need not be. 21. In this context, it would be relevant to take note of the fact that the 1st respondent by Ext.P4 had understood that though the post WP(C) NO. 7665 OF 2021 14 Mechanic is not expressly stated in the Statute, they fall in the same category as Gasman, Specimen Collectors etc. Exhibit P15 communication issued by the Registrar of the Calicut University also says in unequivocal terms that the post of Mechanic in Private Aided Colleges are entitled to promotion to the Lower Divisional Clerk/ Lower Division Store keeper/ Lower Division Accountants. It is for the said reason that Sri. Arjun Verma E.K, who was working as a Mechanic was promoted as per Exhibit P2 and Sri K.J Joseph, who was working as a Mechanic Gr.III was promoted as per Exhibit P3. In that view of the matter, the contention of the respondents that the University has never treated Mechanic as a feeder category post cannot be sustained. In view of the above discussion, I am of the view that Ext.R1(a) issued by the Government has been issued without taking note of the relevant provisions of the Statute. I am of the considered opinion that the order refusing the grant of approval of the petitioner to the post of Clerk cannot be sustained for the reasons stated in Ext.P7 and P10 orders. Resultantly, Exhibit P7 and P10 will stand set aside. There will be a direction to the 1st respondent to reconsider Exhibit P6 proposal for approval of the appointment of the petitioner to the post of Clerk in the light of the observations above. The entire exercise shall be concluded WP(C) NO. 7665 OF 2021 15 within a period of two months from the date of receipt of a copy of this judgment. This writ petition is allowed as above. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** NS WP(C) NO. 7665 OF 2021 16 ## **`APPENDIX OF WP(C) 7665/2021`** ``` PETITIONER(S) EXHIBITS : ``` |`EXHIBIT P1`|`TRUE COPY OF THE RELEVANT PAGES OF THE CHAPTER 3`| |---|---| ||`OF THE CALICUT UNIVERSITY FIRST STATUTE, 1979.`| |`EXHIBIT P2`|`TRUE COPY OF THE ORDER NO.E3/3418/18/COLL.EDN OF`| ||`THE 1ST RESPONDENT DATED 14.03.2018.`| |`EXHIBIT P3`|`TRUE COPY OF THE ORDER NO.ESTT.E3/16533/2012/COLL.`| ||`EDN DATED 20.07.2016 OF THE 1ST RESPONDENT.`| |`EXHIBIT P4`|`TRUE COPY OF THE CIRCULAR NO. E1/43599/2017/COLL.`| ||`EDN DATED 24.11.2018.`| |`EXHIBIT P5`|`TRUE COPY OF THE ORDER NO.G6-1/100-CLERK/2019`| ||`01.06.2019 BY THE 2ND RESPONDENT.`| |`EXHIBIT P6`|`TRUE COPY OF THE LETTER NO.G6/96-105/N.T.S/2019`| ||`DATED 01.08.2019 TO THE 1ST RESPONDENT BY THE 3RD`| ||`RESPONDENT.`| |`EXHIBIT P7`|`TRUE COPY OF THE ORDER NO.F5/32508/2019/DCE DATED`| ||`17.10.2019 OF THE 1ST RESPONDENT.`| |`EXHIBIT P8`|`TRUE COPY OF THE REPRESENTATION DATED 28.10.2019`| ||`TO THE 1ST RESPONDENT BY THE PETITIONER.`| |`EXHIBIT P9`|`TRUE COPY OF THE LETTER NO.G6.100/NTS-SP/2019`| ||`DATED 11.11.2019 TO THE 1ST RESPONDENT BY THE 3RD`| ||`RESPONDENT.`| |`EXHIBIT P10`|`TRUE COPY OF THE ORDER NO.F5/45399/2019/DCE DATED`| ||`25.01.2021 OF THE 1ST RESPONDENT.`| |`EXHIBIT P11`|`TRUE COPY OF COMMUNICATION (ORDER NO.G6/`| ||`2/S.A/2020-21/100 DATED 11.2.2021 OF THE`| WP(C) NO. 7665 OF 2021 17 ``` 3RD RESPONDENT. ``` - `EXHIBIT P12 TRUE COPY OF THE ORDER NO.G6-2/SA/2020-21/100 DATED 15.02.2021 OF THE 3RD RESPONDENT.` - `EXHIBIT P13 TRUE COPY OF THE APPLICATION DATED 15.05.2019 FILED UNDER RTI ACT BY THE PETITIONER.` - `EXHIBIT P14 TRUE COPY OF THE REPLY NO. E1/15004/2019/DCE DATED 27.05.2019 TO EXT.P13 APPLICATION.` - `Exhibit P15 TRUE COPY OF THE COMMUNICATION NO-10669/GA-II-F-SO/2013/CU DATED 21.8.2020 BY THE CALICUT UNIVERSITY.` - `Exhibit P16 TRUE COPY OF THE JUDGMENT DATED 3.12.2021 IN WPC NO-18647/2021` ## **`RESPONDENT(S) EXHIBITS :`** ``` EXHIBIT R1(a) TRUE COPY OF THE GOVERNMENT LETTER DATED 03.11.2020. ```