A.K. Basheer, J.
1. Since these two writ appeals arise from the same judgment passed by a learned Single Judge, they are being disposed of by this common judgment.
The short question that arises for consideration is whether the promotion given to the appellant in W.A. No. 989/2008 to the post of Junior Foreman (Composing) in the University Press under the Kerala University overlooking the claim of respondent No. 1/writ petitioner is legal, valid and sustainable?
2. The learned single Judge held that since respondent No. 1/petitioner possessed the requisite qualification for promotion as on December 1,2002, the date on which the vacancy arose, the appellant who admittedly possessed only an alternate qualification, was not liable to be promoted.
The above order is impugned by respondent No. 3 as well as the University in these two appeals.
The tussle for promotion arose in the following facts and circumstances.
3. Respondent No. 1 in the appeal (hereinafter referred to as the petitioner) entered service in the Kerala University Press as Compositor Grade II on June 19, 1997. She was promoted as Compositor Grade I with effect from September 13, 2002. The qualifications of the petitioner are: S.S.L.C, KGTE (Lower) in Composing, Proof Reader's Work and Book Binding MGTE (Higher) in Composing and DTP (Word Star, Ventura and page maker). Petitioner also contended that she had passed KGTE Printing in the year 2000 arid that it had been recorded in her service book.
4. According to the petitioner she was eligible to be promoted to the post of Junior Foreman (Composing) against the vacancy that arose on December 1, 2002 by virtue of the qualifications possessed by her. Petitioner submitted representations before the authorities requesting to promote her. But her claim was rejected and appellant/respondent No. 3 was promoted. The said order (Ext.P 11) was challenged by the petitioner in the writ petition.
5. It was contended by the appellant and the University that Ext.P 11 order was perfectly legal and valid. Appellant being senior to the petitioner and also since she possessed the National Apprenticeship Certificate in Printing which was recognised as equivalent to the KGTE certificate (Higher) in Printing by the Government of Kerala as well as the Syndicate of the University, she was given promotion in conformity with the provisions contained in the First Statutes, Ordinates etc.
6. It is not in dispute that appellant had joined the service as Compositor Grade II in the University Press in 1988. She was promoted as Compositor Grade I in 1977. The petitioner entered service only in 1997 as mentioned earlier and she was promoted as Compositor Grade II only in 2002.
7. It is beyond controversy that the appellant did not possess the prescribed qualification to hold the post of Junior Foreman going by entry 127 of the Schedule in the Kerala University First Ordinances 1978. The relevant entry is extracted hereunder:
-----------------------------------------------------------------------------------Sl Desi- Scale of Age Qualifications MethodofNo. gnation pay General/Technical recruitment-----------------------------------------------------------------------------------1 2 3 4 5 6 7-----------------------------------------------------------------------------------127 Junior 290-560 Not more Pass KGTE or MGTE BypromotionForeman than 30 years in SSLC lower in composing, from their(No age limit Exam printing and binding seniormostfor promotees) and higher grade in qualifiedpersonthe subject concerned in the section18 months experience concerned orin a printing by directestablishment recruitment-----------------------------------------------------------------------------------
8. The fact that petitioner possesses the requisite qualification as prescribed in the Schedule has not been denied or refuted, either by the University or by the appellant. As mentioned earlier, it is the admitted position that appellant does not possess the qualification prescribed in the schedule. But according to the appellant, she had obtained National Apprenticeship Certificate in the trade of Compositor (Hand) as evidenced by Ext. R3(a) in the year 1981. The Government of Kerala in Ext.R3(b) order dated April 9,1990 had accepted the National Apprenticeship Certificate in Compositor Hand and certain other trade groups as an alternate qualification to KGTE Certificate (Higher) in Printing. It is further contended that the Syndicate of the University at its meeting held on March 7, 2003 resolved to implement the above order of the Government in the University. In other words, the Syndicate resolved to accept the alternate qualification of National Apprenticeship Certificate issued by the National Council for Printing in vocational trades as an alternate qualification to KGTE (Higher) in Printing. It was pursuant to the above decision taken by the Syndicate that Ext.P 11 order was issued promoting the appellant as Junior Foreman (Compositor).
9. It has been noticed already that in the schedule annexed to the Kerala University First Ordinances 1978, the technical qualification prescribed for the post of Junior Foreman is KGTE-or MGTE (Lower) in Composing Printing and Binding and Higher Grade in the subject concerned. It may also be noticed that the vacancy is to the post of Junior Foreman in Composing. Therefore the technical qualification requisite for promotion has to be necessarily KGTE or MGTE, both lower and higher, in Composing.
10. Admittedly the appellant does not have the said qualification as prescribed at serial No. 127 in the schedule annexed to the First Ordinances 1978 extracted in the earlier part of the judgment. Therefore the only question is whether the alternate qualification possessed by him can be treated as equivalent to the qualification prescribed under the First Ordinance and that too after the said qualification was adopted or recognised by the Syndicate of the University after the vacancy had arisen. The larger question that may arise for consideration will be whether the decision of the Syndicate will have any validity or relevance in the absence of a suitable amendment to the schedule in the Ordinance. Still further, the next question will be whether the University was justified in promoting the appellant on the fact of Ordinance 3 in Chapter 17 of the First Ordinances 1978.
Ordinance 3 referred to above, deals with scales of pay, age limit, minimum qualifications and method of recruitment to the non teaching posts in the University. Sub-clause (3) of Ordinance 3 postulates that no person shall be appointed to a post unless he possesses the educational and other qualifications prescribed therefor.
11. It is beyond controversy that the University does not have a case that the schedule annexed to the First Ordinances 1978 had been amended incorporating the National Apprenticeship Certificate in Printing with any of the trade groups mentioned in Ext.R1(a) Government order as a qualification equivalent to KGTE Certificate (Higher) in Composing, Printing and Binding etc. The only defence taken up by the University in this regard is that the Syndicate had resolved to implement the decision of the Government in Ext.R1 (a) order and therefore no amendment to the schedule in the First Ordinances was either warranted or necessitated.
12. But the above contention is effectively countered by the petitioner pointing out that pursuant to Ext.P 13 order issued by the Government on January 6, 1994 in G.O.(Ms)2/94/P & ARD, treating certain National Trade Certificates awarded by the National Council for Training in Vocational Trades, Govt. of India, as alternate qualifications corresponding to KGTE (Lower) Certificates, the University had suitably amended serial Nos. 129, 131 and 133 in the Schedule in the First Ordinances, 1978. Petitioner asserted that the above amendments were introduced by the University with effect from April 18, 1995.
13. Petitioner pointed out that serial No. 127 in the Schedule which prescribed the qualification for the post of Junior Foreman was never amended by the University. It is in this context that the petitioner had alleged malafides and favouritism by the University. She contended that Ext.R1 (a) order was issued by the Government in the year 1990. For more than 13 years, the University had never bothered to implement the above order in the University. The decision to adopt the said qualification was taken by the Syndicate only on March 12, 2003 and that too after the vacancy in the post of Junior Foreman had arisen. Two days thereafter, Ex.P11 order was issued promoting the appellant. The appellant could not aspired for promotion till the Syndicate had taken the decision to implement Ext.R1 (a) order of the Government. On the contrary, petitioner had all the requisite qualifications and experience to be promoted to the post as on the date when the vacancy arose. Thus it is contended by the petitioner that the University had shown blatant favouritism, leave alone the flagrant violation of not only the rules and regulations, but also the principles of equity and natural justice.
14. We have carefully perused the relevant provisions contained in the Kerala University Act, Kerala University First Statutes and Kerala University First Ordinances 1978 etc. to consider the question whether the resolution of the Syndicate to implement Ext.R1 (a) order of the Government will clothe the University with the power to circumvent or ignore the Clauses contained in Sub-clause (3) of Ordinance 3 in Chapter 17 of the First Ordinances 1978 and also the qualifications prescribed in the schedule annexed thereto. In view of the undisputed fact that the University had brought out amendments to the schedule as far as serial Nos. 129, 131 and 133 are concerned, pursuant to a similar order issued by the Government in the matter of equivalency of qualification for the posts covered under those entries, it may not now be open to the University to contend for the position that such a consequential amendment was not necessary as far as serial No. 127 Ah the schedule is concerned.
15. Chapter IV of the Act deals with the authorities of the University like the Senate, Syndicate, Academic Council, Faculties, Board of Studies etc. Section 19 postulates that the Senate shall be the supreme authority of the University and shall have power to review the action of the Syndicate and the Academic Council. Sub-section (2)(c) of Section 19 provides that the Senate shall have the power to cancel or amend by a majority of the total membership of the Senate and by a majority of not less than two-thirds of the members present and voting, any Ordinance passed by the Syndicate or any Regulation passed by the Academic Council.
16. The Syndicate is the Chief Executive Body of the University and Section 23 of the Act deals with the powers of the Syndicate. It is true that the executive powers of the University including general superintendence and control over the institutions of the University, are vested in the Syndicate, subject of course, to the provisions of the Act and the Statutes. The Syndicate shall have the powers, as enumerated in Section 23, 'to make ordinances and to amend or repeal the same'. Similarly, the Syndicate is empowered to propose Statutes for the consideration of the Senate. Still further, the Syndicate is vested with the power to appoint teachers and other employees of the University and prescribe their duties.
17. Chapter V of the Act deals with Statutes, Ordinances, Regulations, Rules and Bye-laws. While Section 34 in Chapter V deals with statutes, Section 35 lays down the procedure for making statutes. The Statutes provide for the powers and duties of the officers of the University, the constitution, powers and duties of the officers of the University, the constitution, powers and duties of authorities of the University, the procedure for election of members of the Senate, the Syndicate, award of degrees, diplomas titles etc. and all other matters which may be prescribed either under the Act or the Statutes. Sub-section (2) of Section 35 stipulates that the Syndicate may propose to the Senate the draft of any Statute for consideration and such draft shall be considered by the Senate at its next meeting. Sub-section (3) provides that the Senate may approve the draft of a Statute proposed by the Syndicate and pass the Statute or may reject it or return it to the Syndicate for reconsideration. No Statute passed by the Senate shall be valid or come into force until assented to by the Chancellor.
18. Under Section 36 of the Act, the Syndicate is vested with the power to make Ordinances which provide for the levy of fees in colleges and other institutions, the workload and pattern of teaching staff of colleges and also the fixation of scales of pay of various posts in the University and the terms and conditions of service of officers of the University. Sub-section (1), (2) and (3) of Section 37 which may be relevant for the purpose of this case are extracted hereunder:
37. Procedure for making ordinances: (1) All Ordinances made under this Act shall have effect from such date as the Syndicate may direct, but every Ordinance so made and the repeal of any Ordinance shall be laid before the Senate during its next succeeding meeting.
(2) If any Ordinance or repeal of an Ordinance is not laid before the Senate as required by Sub-section (1), the Ordinance shall lapse or, as the case may be, the Ordinance repealed shall be revived, after the next succeeding meeting of the Senate.
(3) Subject to the provisions of Sub-section (1) and (2), the procedure to be followed in making amending or repealing Ordinances shall be prescribed by the Statutes.
19. A perusal of the above Clauses will show that a procedure has been prescr ibed for making Ordinances by the Syndicate and that such Ordinances shall be made in terms of the said procedure to be prescribed by the Statute. It is further provided that if any Ordinance or repeal of an Ordinance is not laid before the Senate as required, the Ordinance shall lapse.
20. Section 40 of the Act deals with the powers of the Syndicate to make Rules, Bye-laws and orders, Sub-section (2) mandates that such rules bye-laws and orders shall have effect from such date as the Syndicate may direct; but every such rule, bye-law or order shall be submitted to the Senate during its next succeeding meeting. Sub-section (3) postulates that the Senate shall have power to cancel or modify any such rule, bye-law or order. Section 41 makes it mandatory that all Statutes, Ordinances and Regulations made under the Act shall be published in the gazette,
(emphasis supplied).
21. It is not necessary to refer to the various Statutes in the Kerala University First Situates 1977 elaborately. But still it may be noticed that Statute 6 in Part II of Chapter IV deals with constitution of the Kerala University Service comprising Class I to Class IV posts. Statute 7 deals with scale of pay, qualification and method of recruitment. We do not purpose to deal with any other Statutes since it is not necessary for the purpose of this case.
22. As mentioned in the earlier part of the judgment, Chapter XVII of the Kerala University First Ordinances 1978 deals with scales of pay, qualification etc. of various posts in the University. Ordinance 3 in the above Chapter deals with scales of pay, age etc. for non teaching posts in the University. Sub-clause (3) of Ordinance 3 postulates that no person shall be appointed to a post unless he possesses the minimum educational and other qualific ations prescribed therefor. The schedule annexed to the First Ordinances refers to various posts in the University Press also. Serial No. 127 relating to Junior Foreman has been extracted in the earlier part of the judgment already. As mentioned earlier, the qualifications prescribed in the schedule for the post of Junior Foreman has not been amended by the University so far in the manner prescribed under the Act, Statutes or Ordinances.
23. It may be remembered that Section 41 of the Act makes it mandatory that all Statutes, Ordinances and Regulations made under the Act shall be published in the gazette. The University does not have a case that any such Ordinance or amendment of the Ordinance had been published in the gazette so far.
24. A perusal of the various provisions of the Act, Statutes and Ordinances referred to above, will undoubtedly show that a mere resolution passed by the Syndicate may not be of any avail to the University to contend for the position that the qualifications prescribed for the post under the Schedule in the Ordinance 1978 will stand altered by such resolution. Even assuming for the same of argument that the resolution that the resolution passed by the Syndicate can be treated as an Ordinance, there is nothing on record to show that the said resolution was proposed as an Ordinance and placed before the Senate in its next meeting for approval, leave alone its publication in the official gazette.
25. In this context it may also be remembered that the Syndicate had passed the resolution in question after the vacancy had arisen. The said resolution did not have any retrospectivity, and therefore it could not have any application in the case of the vacancy that had already arisen. In any view of the matter we have no hesitation to hold that the resolution passed by the Syndicate accepting the alternate qualification recognised by the Government cannot have any legal impact as far as the vacancy that arose to the post of Junior Foreman (Composing) on December 1, 2002 is concerned. That means the resolution of the Syndicate will not make the appellant eligible for promotion to the vacancy that had arisen on the date mentioned supra.
26. The next contention raised by the appellant and the University is based on Statute 2 in Chapter 4 Part I of the First Statutes. It is contended that Kerala State and Subordinate Service Rules 1958, Kerala Service Rules 1959 and the Government Servants (Conduct) Rules 1960 as amended from time to time, in so far as may be applicable and except to the extent expressly provided for in the Statutes, shall apply in the matter of all the service conditions of the University employees in the University service. It is contended that in view of the provisions contained in Rule 10 of Part II of KS & SSR the qualifications recognised by executive orders or standing orders of the Government shall be treated as equivalent to the qualification prescribed for a post. Relevant Clauses of Rule 10 are extracted hereunder:
10. Qualifications: (a)(i) The educational or other qualifications, if any, required for a post shall be as specified in the Special Rules applicable to the service in which that post is included or as specified in the executive orders of Government in cases where Special Rules have not been issued for the post/service.
(ii) Notwithstanding anything contained in these rules or in the Special Rules, the qualifications recognised by executive orders or standing orders of Government as equivalent to a qualification specified for a post, in the Special Rules or found acceptable by the Commission as per Rule 15(b)(1) of the said rules in cases where acceptance of equivalent qualifications is provided for in the rules and such of those qualifications which presuppose the acquisition of the lower qualification prescribed for the post, shall also be sufficient for the post.
(emphasis supplied)
27. Undoubtedly those qualifications which are recognised by executive orders or standing orders of Government as equivalent to a qualification specified for a post, shall also be sufficient for the post coming under the purview of public appointment. But it may be noticed that the above rule postulates that the Special Rules applicable for the category of post must provide for acceptance of the equivalent qualification in the Special Rules itself.
28. But as has been noticed already, qualification for the post of Junior Foreman (Composing) had been prescribed in the Schedule under the First Ordinances 1978. There is no provision for acceptance of any alternate qualification in the Schedule. Undoubtedly, the Syndicate could have brought in an amendment to the Ordinances in a manner prescribed under the Act and the Statutes. The Syndicate could not have legislated through an executive order without making an Ordinance or by amending an existing Ordinance. Ext.R1 (b) order issued by the Registrar of the University cannot in any way be treated as an amendment to the Kerala University First Ordinance 1978.
29. In this context we may once again refer to the admitted position that the University had, on a previous occasion, brought in appropriate amendments to the qualifications for the posts in relation to serial Nos. 129, 131 and 133 of the Schedule after accepting some other equivalent qualifications for the above posts. In view of the specific stipulation contained in Ordinance 3 in Chapter XVII of the First Ordinances 1978, we have no hesitation to hold that the University cannot seek shelter under Rule 10 of Part II KS & SSR. A conjoint reading of Statute 2 of Chapter IV of First Statute 1977 and Rule 10 of Part III of KS & SSR will unambiguously show that the contentions raised by the appellant and the University are wholly misconceived and untenable.
30. Learned Counsel for the parties have invited our attention to some decisions in support of the rival contentions. S.N. College v. Ravindran (2001) 3 KLT 938, Viswam v. KPSC and Ors. 2001 (2) KLJ 539, and Dr. A. Razaludeen v. University of Kerala O.P. No. 38193 of 2001. We have carefully perused the above judgments.
31. The issue that came up before the Division Bench in Ravindran's case (supra) was relating to appointment of Principal in an aided college. To be specific, the question was whether the management was bound to follow the qualification prescribed by the U.GC. Schemed 1998 unless and until suitable amendments were made in the University Statute. In fact in the above judgment, the Division Bench held that necessary amendments have to be made in the University Statutes and Special Rules wherever necessary to give effect to the stipulations in the UGC Scheme.
32. In Viswam's case (supra), the question was whether the Government and the Public Service Commission had got power under Rule 13 Part II KS & SSR to prescribe equivalent qualifications. The Division Bench answered the above question in the affirmative.
In Dr. Razaludeen's case (supra) a learned single Judge of this Court held that a resolution passed by the Syndicate may be enforceable if it is not ultra vires the statutory provisions.
33. Sri. P.C. Sasidharan, learned Counsel who ably assisted the Court as Amicus Curiae, has invited our attention to two decisions of the Apex Court.
34. In Bharat Co-op. Bank (Mumbai) Ltd. v. Co-op. Bank Employees' Union : (2007)IILLJ825SC while referring to Ext.R1 (b) resolution passed by the Syndicate of the University, Sri. Sasidharan has drawn our attention to the following observations made by their Lordships in the above judgment:
Legislation by incorporation is a common legislative device where the legislature, for the sake of convenience of drafting incorporates provisions from an existing statute by reference to that statute instead of verbatim reproducing the provisions, which it desires to adopt in another statute. Once incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to refer to the statute from which the incorporation is made....
35. In the University of Cochin v. Dr. N. Raman Nair and Ors. : [1975]2SCR526 it was laid down by the three Judges Bench of the Apex Court that the Syndicate of a University cannot pass a resolution contravening the statutory provisions. It was further held that if any resolution is passed in violation of the rules relating to reservation and rotation, such a resolution would be invalid.
Having regard to the entire facts and circumstances of the case and also for the foregoing reasons stated by us, we do not find any reason to interfere with the judgment passed by the learned single Judge. We have no hesitation to hold that the University was not justified in refusing promotion to respondent No. 1/petitioner.
36. There is no merit in any of the contentions raised by the respective appellants in the two appeals. The appeals fail. They are accordingly dismissed.