Guruvayur Devaswom & Others v. Sreekumar G. & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **& THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** **TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936** **WA.No. 191 of 2014 () IN WP(C).1698/2013** **------------------------------------------** ## **AGAINST THE ORDER/JUDGMENT IN WP(C) 1698/2013 of HIGH COURT OF KERALA DATED 04-12-2013** ## **APPELLANT(S)/RESPONDENTS 1 TO 3:** **--------------------------------------------------------** ## **1. GURUVAYUR DEVASWOM** **REPRESENTED BY ITS ADMINISTRATOR, DEVASWOM OFFICE GURUVAYUR, THRISSUR DISTRICT-680 101** ## **2. THE ADMINISTRATOR** - **GURUVAYUR DEVASWOM BOARD, GURUVAYUR THRISSUR DISTRICT-680 101.** ## **3. THE PRINCIPAL** **SREE KRISHNA COLLEGE, ARIYANNUR P.O., GURUVAYUR THRISSUR DISTRICT-680 102.** **BY ADV. SRI.P.GOPAL** ## **RESPONDENT(S)/PETITIONER & RESPONDENTS 4 AND 5:** **-------------------------------------------------------------------------------------** ## **1. SREEKUMAR G.** **S/O. GOPALAKRISHNA PILLAI, ELAVINMOOTTIL VEEDU THRIKKOVILVATTOM, MUKATHALA P.O. KOLLAM DISTRICT 691 572** **2. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION PALACE ROAD, THRISSUR-680 001.** ## **3. STATE OF KERALA** **REPRESENTED BY ITS SECRETARY DEPARTMENT OF HIGHER EDUCATION GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **R1 BY ADV. SRI.V.G.ARUN R1 BY ADV. SRI.T.R.HARIKUMAR BY SR GOVERNMENT PLEADER SRI.VIJU THOMAS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ. ================================ Writ Appeal No. 191 of 2014 ====================** ## **Dated this the 12[th] day of August, 2014** ## **J U D G M E N T** ## Antony Dominic, J. Respondents 1 to 3 in WP(C) No.1698/13 are the appellants. Writ petition was filed by the 1[st] respondent seeking an order directing the appellants to grant him the benefit of Ext.P7, the letter issued by the 3[rd] respondent granting him relaxation in age for appointment to the post of Lab Assistant in a college affiliated to the Calicut University. By the judgment under appeal, learned single Judge upheld the claim of the 1[st] respondent and directed that he be given the benefit of Ext.P7. It is calling in question the said judgment, this appeal is filed. 2. We heard the learned counsel for the appellants, learned counsel for the 1[st] respondent and also the learned Government Pleader appearing for respondents 2 and 3. 3. The relevant facts of the case are that Sree Krishna College is one established by the appellants and is affiliated to the University of Calicut. The 1[st] respondent was working in that College as Lab Assistant on a temporary basis, which is stated to be along **W.A No.191/14** ## **: 2 :** with 13 others. He had unsuccessfully raised a claim for regularization of his service and rejection of that claim was also upheld by this Court. It appears that he continued to make representations, which were eventually replied by the University by Ext.P1 informing him that, as and when Management issues any notification inviting applications, he can also apply for the post. 4. Subsequently, appellants issued Ext.P2 notification dated 10/2/12 inviting applications for the post of Lab Assistant. Along with others, the 1[st] respondent also made his application and on the ground that he was over aged, his application was rejected by Ext.P6. It is also stated that application made by another candidate was also rejected. At that stage, under cover of Ext.R1(a) letter, the 1[st] respondent submitted Ext.P7 . Ext.P7 is a letter issued by the Under Secretary to the Government granting him relaxation in upper age limit to attend the interview for the selection of Lab Assistant at Sree Krishna College, Guruvayoor as a special case. According to the appellants, immediately on receipt of the same, that representation was rejected. ## **W.A No.191/14** **: 3 :** 5. However, on the premise that his representation was remaining unattended, the writ petition was filed by the 1[st] respondent seeking a direction to the appellants to interview and appoint him to the post of Lab Assistant. Appellants resisted the prayers in the writ petition by contending that the 1[st] respondent was over aged and that Ext.P7 letter issued by the Government was beyond its powers. However, rejecting the contentions raised, the writ petition was disposed of by the learned single Judge directing the appellants to give the benefit of Ext.P7 letter to the 1[st] respondent. It is in these circumstances, the appeal is filed. 6. Sree Krishna College is established by the appellants and is affiliated to the University of Calicut. The University of Calicut is governed by the Calicut University Act, 1975 (hereinafter referred to as 'Act' for short). Section 63 of the Act provides for appointment of non-teaching staff of private colleges. As per this Section, the provisions of Chapter VIII of the Act, shall apply to the non-teaching staff of the private colleges and subject to the above, their method of appointment, pay and other conditions of service shall be such as **W.A No.191/14** ## **: 4 :** may be prescribed by the Statutes. Section 82 of the Act provides that notwithstanding anything contained in the Act, the first Statutes and the first Ordinances of the University shall be made by the Government. 7. In exercise of its powers under Section 82 of the Act, the Calicut University First Statutes, 1979 were framed by the Government of Kerala. Statute 45 provides that age for appointment for the purpose of appointment of members of non-teaching staff by direct recruitment, the minimum and maximum age followed for similar categories of posts in Government service shall be followed. Similar categories of posts in Government service are those specified in the Kerala Collegiate Education Subordinate Service Rules. Rule 5 provides that no person shall be eligible for appointment by direct recruitment to any of the posts mentioned in Column I of the Table to the rule if he has not completed or will not complete 19 years of age or if he has completed or will complete the age specified in Col.II thereof, on the first day of January of the year in which applications for appointment are invited. In Table II, the post of Laboratory **W.A No.191/14** ## **: 5 :** Assistant has been included at Category 14 and the maximum age specified therein is 36. 8. Evidently therefore, in terms of the University Act, Statutes and the rules mentioned above, the minimum and the maximum age specified for recruitment to the post of Lab Assistant in the colleges affiliated to the Calicut University is 19 and 36 respectively. In so far as the 1[st] respondent, the writ petitioner, is concerned, Ext.P4 shows that his date of birth is 20[th] of May, 1973. Therefore, as on 1[st] of January, 2012, the year in which applications were invited, he had already completed 38 years and thus was over aged to apply for the post of Lab Assistant in response to Ext.P2 notification. It was therefore that the college rejected his application by Ext.P6. Such rejection of the application cannot, in the light of the facts as noticed above, be stated to be vitiated for any reason. 9. Now the only question is whether the 1[st] respondent was entitled to get relaxation of the age specified for recruitment to the post of Lab Assistant. Ext.P7 communication issued by the Government shows that the Government granted exemption from the **W.A No.191/14** ## **: 6 :** maximum age prescribed in the rules treating the case of the 1[st] respondent as a special case. Though it is not specified in Ext.P7, the source of power under which the said communication has been issued is traced before us to Rule 39 of Part II KS & SSR. This rule provides that notwithstanding anything contained in the KS & SSR or in the Special Rules or in any other Rules or Government Orders, the Government shall have power to deal with the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may appear to the Government to be just and equitable. 10. Although it cannot be gainfully argued that in the light of Rule 39 of Part II KS & SSR, Government is denuded of the power to grant exemption in age specified in the recruitment rules, the question is whether the power under Rule 39 of the KS & SSR can be exercised in so far as the non-teaching staff of the Calicut University who are governed by the Calicut University Act and the Statutes are concerned. Though the learned counsel for the 1[st] respondent and the learned Government Pleader contended that the University **W.A No.191/14** **: 7 :** having chosen to follow the age prescribed in the rules for recruitment to similar posts in Government Service vide statute 45 of the First Statutes, Rule 29 is impliedly applicable to the recruitments in the University as well. Having considered this plea, we find it difficult to accept the said contention. As rightly pointed out by the learned counsel for the appellants, even the power of the Government to frame statutes is only on a virgin field and not in an occupied field. ( _see in this connection_ _**Nair Service Society v. State** (1992(2) KLT 134_ ). If that be so, the provisions of the KS & SSR could have had application to the non-teaching staff of the colleges affiliated to the Universities, only if, either in the University Act or in the Statutes, there is a provision making the same applicable to the non-teaching staff of the University or the colleges affiliated to the University. No such provision is seen either in the Act or in the University First Statutes. Therefore, the powers under the KS & SSR could not have been exercised for the appointment of non-teaching staff in the Calicut University. If that be the position, we will have to necessarily accept the contention of the learned counsel **W.A No.191/14** ## **: 8 :** for the appellants that the provisions of KS & SSR cannot be made applicable in matters which are governed by the provisions of the Act and the Statutes and that therefore Ext.P7 was issued by the Government without any power whatsoever. 11. Resultantly, the appellants were justified in rejecting Ext.R1(a) representation made by the 1[st] respondent enclosing Ext.P7 and the learned single Judge was also in error in holding that the appellants are bound to give the benefit of Ext.P7 to the 1[st] respondent. 12. For all the above reasons, we are unable to sustain the judgment of the learned single Judge. Accordingly, the judgment is set aside and the writ petition will stand dismissed. Appeal is allowed as above. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **DAMA SESHADRI NAIDU JUDGE** Rp //True Copy// PA to Judge