IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32222 of 2005(J)
1. PADMAJAN M.R.,
... Petitioner
Vs
1. UNIVERSITY OF CALICUT,
... Respondent
For Petitioner :SRI.E.NARAYANAN
For Respondent :SRI.S.GOPAKUMARAN NAIR, SC, CALICUT UTY
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :18/11/2009
O R D E R
S.SIRI JAGAN, J.
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W.P(C).No.32222 of 2005
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Dated this the 18th day of November, 2009
J U D G M E N T
The petitioner was appointed as a Store Keeper (Assistant
Warehouse Man) in the Calicut University Press with effect from
28.6.1984. Apart from the qualifications required for the post of Store
Keeper (Assistant Warehouse Man), the petitioner also had very many
other technical and non-technical qualifications including the
qualification prescribed for appointment to the post of Assistant Grade
II in the University. The petitioner applied for a category change as
Assistant Grade II since he had the requisite qualification of
graduation. The syndicate originally resolved to allow the request of
the petitioner for category change. Later that resolution was
cancelled. The petitioner approached this Court by filing
O.P.No.10720/1998. By Ext.P6 judgment, a learned Single Judge of
this Court dismissed that original petition. The petitioner filed a writ
appeal as W.A.No.2327/2000, which also was dismissed by the
Division Bench. Later on, on the ground that the University had
changed its policy in regard to category change from technical to non
technical posts, pointing out certain instances of granting category
change, the petitioner again applied for category change, which was
rejected by Ext.P12 communication dated 11.7.2003. In this writ
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petition the petitioner is challenging Ext.P12 order dated 11.7.2003.
This writ petition was filed only on 16.11.2005. The reason pointed out
by the petitioner for challenging Ext.P12 that late is that subsequently
Exts.P15 and P16 orders have been passed, which would go to show
that the University has changed its policy regarding category change.
2. The petitioner’s contention is that subsequent to Exts.P6
and P7 judgments of this Court, Ext.P16(d) dated 27.10.2001 was
issued by the University, wherein certain compositors in the press have
been given category change as Clerical Assistants. The petitioner,
therefore, seeks the following reliefs:
“i) Declare that the University is duty bound to allow change of
category to the petitioner from technical to non-technical post ie.
Store Keeper (AWM) to Assistant Grade-II;
ii) Call for the records leading to Exhibit P12 and issue writ of
certiorari or any other appropriate writ, order or direction setting
aside the same;
iii) issue a writ of mandamus or any other appropriate writ, order or
direction to the respondents directing them to allow change of
category to the petitioner from technical to non-technical ie. Store
Keeper (AWM) to Assistant Grade-II, as has been done in Ext.P15
and Ext.P16 series with retrospective effect and all other
consequential benefits.”
3. The learned standing counsel for the University has filed a
counter affidavit controverting the contentions of the petitioner. The
University would contend that in view of Exts.P6 and P7 judgments,
wherein the petitioner’s claim for category challenge has been
repelled, the petitioner cannot again file another writ petition on the
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same cause of action. The counsel for the University relies on the
decision of the Supreme Court in STATE OF TAMIL NADU AND OTHERS v.
AMALA ANNAI HIGHER SECONDARY SCHOOL [2009 (9) SCC 386], wherein
the Supreme Court has held that after an earlier round of litigation,
writ petition filed by the same party for the same relief cannot be
entertained by the High Court simply because some subsequent
representations have been rejected. The learned Standing Counsel
further submits Ext.P16(d) was issued to avoid retrenchment of certain
employees, who were in excess in the University press.
4. I have considered the rival contentions in detail.
5. The University is a statutory creature. Therefore, the
University is bound by the legislation by which the University was
created and the Statutes and Regulations made thereunder. It is not
disputed before me that there is no provision in the Acts, Statutes or
Regulations, which permits the University to effect category change
from a technical post to non technical post and vice versa except in the
case of typists who could seek category change as Assistants Grade II
as per the amendment to the University Ordinances by Amendment
Ordinance dated 6.10.2004 published in the official gazette. Executive
orders can be issued by the University only in respect of matters not
covered by the Statutes and Ordinances. Here the method of
appointment is fixed by Statutes and the field is therefore occupied by
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a legislation. This is all the more so since to Assistant Grade II only
Typists can seek category change. That being so, the University has
no power whatsoever to effect category change from one post to
another whatever be the administrative exigency. The petitioner is
actually seeking a direction to the University to do something for
which they have no power to. Even assuming that by Ext.P16(d) some
persons have been given category change, that does not ipso facto
give any right to the petitioner to seek category change in so fas as
the University has no power to issue even Exts.P16(d). The Supreme
Court of India has in more than one decision frowned upon negative
discrimination. Simply because some other employee has obtained
some illegal benefit, the petitioner cannot seek the same illegal benefit
on the ground of discrimination. Further, the petitioner’s earlier
request for category change has been negatived by this Court by
Exts.P6 and P7 judgments. Therefore, on any count, the petitioner is
not entitled to the relief prayed for. Accordingly, this writ petition is
dismissed.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
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