Ashok Kumar P.S. v. M.G. University and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 28TH DAY OF FEBRUARY 2017/9TH PHALGUNA, 1938** **WP(C).No. 18632 of 2014 (D)** **----------------------------** ## **PETITIONER(S):** ## **-------------** **ASHOK KUMAR P.S., S/O.K.M. SIVARAMAN NAIR (LATE), SIVADAYA, NORTH GATE, ETTUMANOOR, KOTTAYAM.** **BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.P.U.VINOD KUMAR SRI.KANDAMPULLY RAHUL SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR** ## **RESPONDENT(S):** **--------------** ## **1. M.G.UNIVERSITY, KOTTAYAM REP. BY ITS REGISTRAR-680 012** **2. THE VICE CHANCELLOR, MAHATMA GANDHI UNIVERSITY, KOTTAYAM-680 012** ## **3. STATE OF KERALA,** - **REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** ## **4. ALEX EMMANUEL,** - **AGED 47 YEARS, ASSISTANT, P.D 3 B.COM. SECTION, MAHATMA GANDHI UNIVERSITY, KOTTAYAM-680 012** **5. DILEEP K.R., AGED 44 YEARS, ASSISTANT, CASH COUNTER-4, MAHATMA GANDHI UNIVERSITY, KOTTAYAM-680 012** **WP(C).No. 18632 of 2014 (D)** **----------------------------** **6. RAJU V. JOHN,** **AGED 46 YEARS, ASSISTANT, CASH COUNTER - 6, MAHATMA GANDHI UNIVERSITY, KOTTAYAM-680 012** **R1&R2 BY ADV. SRI.ASOK M. CHERIAN, SC SRI.VARUGHESE M.EASO, SC** **R3 BY GOVERNMENT PLEADER SMT. RAJI T.BHASKAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKG** ## **WP(C).No. 18632 of 2014 (D)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT-P1-**|**TRUE COPY OF THE FINAL SENIORITY LIST OF CLASS**| ||**IV EMPLOYEES AS ON 11/07/1997 APPROVED BY THE**| ||**2ND RESPONDENT**| |**EXHIBIT-P2-**|**TRUE COPY OF THE UNIVERSITY ORDER DATED**| ||**10/06/2009, GRANTING 1:1 RATIO GRADE WITH EFFECT**| ||**FROM 01/03/1997 TO THE CLERICAL ASSISTANTS GRADE**| ||**I INCLUDING THE PETITIONER.**| |**EXHIBIT-P3-**|**TRUE COPY OF THE G.O(MS)31/06/GAD DATED**| ||**25/01/2006 ISSUED BY THE GOVERNMENT OF KERALA.**| |**EXHIBIT-P4-**|**TRUE COPY OF THE MINUTES OF THE MEETING OF THE**| ||**SYNDICATE HELD ON 02/04/2007 RESOLVING TO**| ||**IMPLEMENT EXHIBIT-P3 GOVERNMENT ORDER IN THE**| ||**UNIVERSITY, FURTHER RESOLVING TO DISCONTINUE THE**| ||**EXISTING TWO SCHEME OF PROMOTION OF LOW PAID**| ||**EMPLOYEES AS ASSISTANTS WITH EFFECT FROM**| ||**16/04/2007 ALONG WITH THE CONSEQUENT UNIVERSITY**| ||**ORDER DATED 21/04/2007.**| |**EXHIBIT-P5-**|**TRUE COPY OF THE REPRESENTATION DATED 13/02/2013**| ||**SUBMITTED BY THE PETITIONER AND OTHERS BEFORE**| ||**THE 2ND RESPONDENT.**| |**EXHIBIT-P6-**|**TRUE COPY OF THE MEMO OF REJECTION DATED**| ||**05/04/2013 ISSUED BY THE 1ST RESPONDENT**| ||**UNIVERSITY.**| |**EXHIBIT-P7-**|**TRUE COPY OF THE G.O(P). 3/08/H.EDN. DATED**| ||**05/01/2008**| |**EXHIBIT-P8(A)-**|**TRUE COPY OF THE UNIVERSITY ORDER DATED**| ||**28/11/2008.**| |**EXHIBIT-P8(B)-**|**TRUE COPY OF THE UNIVERSITY ORDER DATED**| ||**18/01/2010.**| |**EXHIBIT-P8(C)-**|**TRUE COPY OF THE UNIVERSITY ORDER DATED**| ||**09/01/2008.**| |**EXHIBIT-P8(D)-**|**TRUE COPY OF THE ORDER DATED 18/01/2008**| ||**EVIDENCING THAT SMT. KAMALAKSHI V., WHO IS**| ||**PLACED AS RANK NO. 40 IN EXHIBIT-P1 SENIORITY**| ||**LIST WHO RETIRED ON SUPERANNUATION ON 31/05/2006**| ||**WAS PROMOTED AS ASSISTANT GRADE-II AS PER ORDER**| ||**DATED 13/09/2005.**| ## **SKG** **WP(C).No. 18632 of 2014 (D)** ## **----------------------------** |**EXHIBIT-P8(E)-**|**TRUE COPY OF THE ORDER DATED 08/01/2008,**| |---|---| ||**GRANTING PROMOTION TO SRI. JOHN K.J. AS**| ||**ASSISTANT, GIVING THE BENEFIT OF THE RULE**| ||**EXISTING PRIOR TO 16/04/2007.**| |**EXHIBIT-P9-**|**TRUE COPY OF THE REPRESENTATION DATED 18/02/2014**| ||**SUBMITTED BY THE PETITIONER BEFORE THE 2ND**| ||**RESPONDENT.**| |**EXHIBIT-P10-**|**TRUE COPY OF THE UNIVERSITY ORDER DATED**| ||**05/06/2014.**| |**EXHIBIT-P11(A)-**|**TRUE COPY OF THE ORDER OF THE UNIVERSITY OF**| ||**CALICUT DATED 16/01/2013 GRANTING PROMOTION TO**| ||**CLERICAL ASSISTANTS ASSISTANTS**| |**EXHIBIT-P11(B)-**|**TRUE COPY OF THE ORDER OF THE UNIVERSITY OF**| ||**KERALA DATED 08/10/2013 GRANTING PROMOTION TO**| ||**THE POST OF CLERICAL ASSISTANTS AS ASSISTANTS**| |**EXHIBIT-P11(C)-**|**TRUE COPY OF THE ORDER OF THE COCHIN UNIVERSITY**| ||**OF SCIENCE AND TECHNOLOGY DATED 09/12/2008**| ||**GRANTING PROMOTION TO CLERICAL ASSISTANTS AS**| ||**ASSISTANTS.**| |**EXHIBIT-P12-**|**TRUE COPY OF THE JUDGMENT DATED 13/03/2012 IN**| ||**W.P(C) 34118 OF 2011.**| |**EXHIBIT-P13-**|**TRUE COPY OF THE CONSEQUENTIAL ORDER DATED**| ||**24/07/2012 ISSUED BY THE UNIVERSITY OF CALICUT,**| ||**IN PURSUANCE OF EXHIBIT-P11.**| |**EXHIBIT-P14-**|**TRUE COPY OF THE QUERY PUT BEFORE THE KERALA**| ||**UNIVERSITY ON BEHALF OF THE PETITIONER DATED NIL**| ||**UNDER THE R.T.I.ACT AND ITS REPLY DATED 2/5/2015**| |**EXHIBIT-P15-**|**TRUE COPY OF THE APPEAL FILED BEFORE THE**| ||**REGISTRAR OF KERALA UNIVERSITY ON BEHALF OF THE**| ||**PETITIONER DATED 16/6/2015 UNDER THE R.T.I. ACT**| ||**AND ITS REPLY DATED 24/6/2015**| |**EXHIBIT-P16-**|**TRUE COPY OF THE NOTIFICATION DATED 22/3/2016**| ||**ISSUED BY THE PSC**| |**EXHIBIT-P17-**|**TRUE COPY OF THE NEWS PAPER REPORT PUBLISHED IN**| ||**MALAYALA MANORAMA DAILY DATED 7/6/2016.**| |**RESPONDENT(S)'**|**EXHIBITS**| |**-----------------------**<br>**NIL**|| ||**/TRUE COPY/**| **P.S.TO JUDGE** **SKG** **CR** ## Devan Ramachandran, J. ----------------------------------------------- ## W.P.(C)No.18632 of 2014 D ----------------------------------------------- Dated this the 28[th] day of February, 2017 ## **JUDGMENT** The Mahatma Gandhi University admittedly operates under the Kerala University First Ordinance, 1978 with respect to the qualifications and methods of appointment of various employees under its service. The relevant portion of such Ordinance, in so far as it relates to Assistant Grade-II, has been produced by the petitioner as Exhibit P14. His claim is that he be appointed by transfer or promotion to such post on the strength of the provisions of the said Ordinance. His claim has, however, been rejected by the University as per Exhibit P6 order and the petitioner has filed this writ petition impugning the said order. WPC 18632/14 2 2. I have heard Smt.Waheeda Babu, the learned counsel for the petitioner, Sri.Asok M.Cherian, the learned Standing Counsel for respondents 1 and 2 and the learned Government Pleader for the third respondent. 3. It is virtually common ground on all sides that the method of appointment and qualifications for employment under the M.G.University is governed by the Kerala University First Ordinances, 1978 as it stood in that year. This is to say that subsequent amendments brought to the said Ordinance is not made applicable to the M.G. University, even though it may be applicable to the Kerala University. Exhibit P14, which is the relevant extract of the said Ordinance relating to the post of Assistant Grade-II, prescribes a University degree to be the minimum qualification for such post, but provides an exception in the case of persons who have put in seven years experience as Clerical Assistants in the University. This exception is offered by way of relaxation from the requirement of possessing a University degree at the WPC 18632/14 3 discretion of the University. The petitioner maintains, on the strength of Exhibit P8 series orders, relating to persons who are claimed to be similarly placed as him, that the University has consistently been relaxing the qualification in the case of Clerical Assistants, who have put in seven years, from the rigor of having a University degree till the year 2008. He asserts that on such basis he ought to have been considered for being promoted as Assistant Grade-II because he became qualified by acquiring seven years experience as a Clerical Assistant in the year 2008. The learned counsel for the petitioner, therefore, fervently contends that the action of the University in rejecting the claim of the petitioner, based on certain Government Orders, is completely irregular and without sanction of law. 4. I have seen the order impugned in this writ petition, namely, Exhibit P6. This order says that the University has decided not to grant any relaxation for persons like the petitioner, from having to possess a WPC 18632/14 4 graduate degree, on account of two Government Orders referred to as Items 2 and 4 therein and a University order referred as Item No.3 therein. The petitioner has produced on record the Government Order referred to as Item 2 and the University Order referred to as Item 3 in Exhibit P6 and has appended them to this writ petition as Exhibits P3 and P4 respectively. 5. As is obvious from Exhibits P3 and P4, the Government had taken a decision in principle not to allow any relaxation in educational qualifications for the purpose of promotion in Government service. The University had, as per Exhibit P4, adopted this and had resolved to discontinue the existing scheme for promotion of low paid employees as Assistants with effect from 16.04.2007. The petitioner asserts that since the employment under the M.G. University is covered by the Kerala University First Ordinance, 1978, the government Orders referred to above or any other Government Order cannot affect its operation or cause automatic WPC 18632/14 5 amendment to it unless the Ordinances are specifically amended to make it applicable to the case of M.G. University. Admittedly, this has not been done. On such basis, the essential contention of the petitioner is that Exhibit P6 order, which is based on other certain Government Orders, would not find sustenance on a strict scrutiny of law and that his claim will have to be considered strictly in conformity of the confines of Exhibit P14 Ordinances. 6. I find abundant vigour in these submissions. But I am not sure this would still concede any benefit to the petitioner in the long run. I say this because, it is ineluctably true that the Kerala University First Ordinance cannot be altered by mere Government Orders. It will require definite amendments to such effect and it will then further require that such amendment be made applicable to the M.G. University specifically. This concededly not having been done, the University Ordinance cannot be treated as having been amended WPC 18632/14 6 merely on the basis of Government Orders and, therefore, notwithstanding any such orders to the contrary having been issued by the Government, the Ordinance will continue to hold the field and operate jurisdictionally on all matters to which it covers. 7. The above being stated, however, even though the petitioner's case had to have deserved consideration only in terms of Exhibit P14 Ordinance and strictly within its confines, even then, it is obvious therefrom that the case of relaxation of educational requirements of an employee is purely within the discretion of the University. It may be true that in the past the University has exercised its discretion in favour of the employees. However, that does not denote that every employee has an axiomatic right to seek such relaxation on the basis that employees before them had been granted such benefits. However, one submission of the learned counsel for the petitioner grips my attention at this time and that is that, according to the information of the petitioner, WPC 18632/14 7 certain others were given such benefits even after 16.04.2007, the date on which the University had allegedly taken a policy decision not to offer relaxation any further. If this is true, then obviously, the petitioner would deserve similar treatment. 8. The learned Standing Counsel for the University brings to my notice a judgment of this Court delivered in T.P.Ajikumar v. Mahatma Gandhi University in W.A.No. 381/201, to say that this Court had approved the policy decision of the Government not to grant any relaxation to persons like the petitioner after 16.04.2007. I do not propose to say anything affirmatively on this issue and I deem it appropriate that it be best left to a decision by the competent authorities. 9. In such circumstances, I quash Exhibit P6 order, since I am of the definite view that the claim of the petitioner could not have been rejected on the basis of the Government Orders referred to therein. Obviously, the claim of the petitioner for bing appointed as Assistant WPC 18632/14 8 Grade-II will have to be considered by the University in terms of Exhibit P14 First Ordinances applicable to it. I am not saying that the University cannot adopt policies in a particular manner, including a policy not to grant relaxation in future. I cannot say that also because I am aware that a Division Bench of this Court has granted an imprimatur to such a policy of the University. However, that is no reason why the University can reject the application of the petitioner without assigning proper reasons. 10. I direct the second respondent to place the claim of the petitioner for promotion as Assistant Grade-II before the Syndicate of the University, who shall then consider the same strictly within the confines of Exhibit P14 First Ordinance applicable to the M.G. University and decide whether any relaxation in educational qualifications can be granted to the petitioner. While doing so, the Syndicate will have to advert to the specific instances that have been pointed out by the petitioner, WPC 18632/14 9 namely Exhibit P8 series, where other persons have been given such benefits even after 16.04.2007, on which date allegedly the University had taken a decision not to grant such relaxation. A decision shall be taken by the Syndicate without any further delay but not later than six months from the date of receipt of a copy of this judgment. The writ petition is ordered as above. In the facts and circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs. Devan Ramachandran, Judge tkv