IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28871 of 2007(K)
1. MUHAMMED P.K.,
... Petitioner
Vs
1. THE PRINCIPAL SECRETARY,
... Respondent
2. DIRECTOR,
3. THE REGISTRAR,
4. THE MANAGER,
5. THE PRINCIPAL,
For Petitioner :SRI.C.V.MANUVILSAN
For Respondent :SRI.M.SASEENDRAN,SC,KANNUR UNIVERSITY
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :28/10/2009
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.28871/2007-K
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Dated this the 28th day of October, 2009
J U D G M E N T
The petitioner herein is working as Librarian in Nusrathul Islam
Arabic College, a private aided college affiliated to Kannur University. The
main grievance raised in the writ petition is regarding the grant of approval
of appointment. The petitioner herein has produced Ext.P3 whereby one
post of Librarian Grade-IV was sanctioned to all 11 private Arabic Colleges
including the college in which he is now employed. Ext.P4 is the order of
appointment. The second respondent rejected the proposal as per Ext.P5
and the reasons stated therein is that Bachelor Degree in Library and
Information Science has been prescribed as minimum qualification for
filling up the post of college Librarian.
2. The petitioner contends that he is having the qualification
prescribed as per the relevant Statute, namely, Ext.P6 the Kannur University
First Statutes, 1998, wherein the qualification for Librarian Grade-IV is
S.S.L.C and Certificate in Library Science.
3. The petitioner has produced Exts.P7 to P9 to show that in
respect of Calicut University as well as in Government Service, the very
same qualification alone is prescribed and exists even now.
W.P.(C). No.28871/2007
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4. The issue turns up on interpretation of Ext.P1. Ext.P1
prescribes the staff pattern of non-teaching staff in Private Arts and Science
Colleges and Arabic Colleges by way of revision of the existing pattern. In
paragraph (3) it is recorded as follows:-
“3. All Universities will propose necessary
amendments to their Statutes regarding the service
conditions of Non teaching staff in Private Colleges, in
tune with the revised work norms and staff pattern.”
5. It is true that the Government has proposed a different
qualification from the existing one governed by Ext.P6 Statutes. But the
admitted position is that no amendment has been effected to the Statutes so
far. It is explained by the learned Standing Counsel for the University also
that so far no amendments have been effected to the First Statutes. In the
counter affidavit filed on behalf of the second respondent, the only
averment is that all the Universities in Kerala have been instructed to
propose necessary amendments in the Statute in accordance with the
government order.
6. Therefore, going by the First Statutes, namely, Ext.P6, the
petitioner’s qualification is sufficient.
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7. It is well settled that an executive order will not override the
Act, Rules or Regulations in force. Herein, the First Statute has been
framed in terms of Section 100(1) of the Kannur University Act, 1995 by
the Government. Therefore, the said statutory prescriptions, in terms of the
relevant First Statutes, cannot be overriden by an executive order issued by
the Government.
8. Since the above legal position is well settled, the stand taken by
the Government that the qualification prescribed as per Ext.P1 will govern
the appointment of persons like the petitioner cannot be accepted.
9. In that view of the matter, the objection that the petitioner is not
qualified cannot be sustained. Therefore, Ext.P5 order is quashed. There
will be a direction to the second respondent to approve the appointment of
the petitioner and disburse the consequential monetary benefits like salary
and allowances including arrears. Appropriate orders in this regard will be
passed within two months from the date of receipt of a copy of this
judgment.
The writ petition is disposed of as above. No costs.
(T.R. Ramachandran Nair, Judge.)
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