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2005 DIGILAW 383 (KER)

A. P. GOPINATHAN v. STATE

2005-06-17

S.SIRI JAGAN

body2005
Judgment :- These three original petitions raise the same issue and hence are disposed of by a common judgment. The averments and submissions of the petitioners in the original petitions are as under. Since the facts are identical, I will refer to the same and the Exhibits as available in O.P.No.13017/2001. 2. The petitioners in O.P.No.13017/2001 are 10 in number and Selection Grade Assistants in service of the University of Calicut. They originally joined service as Typists and subsequently got category change as Assistants on various dates as detailed in paragraph 1 of the original petition. The petitioners in O.P.No.38610/2002, 4 in number, are also Selection Grade Assistants. The petitioners in O.P.No.36498/2000, 4 in number and those in W.P(C) No.32415/2003, 10 in number, are Selection Grade Assistants, Senior Grade Assistants, Assistants Grade II and Assistants Grade I. All petitioners in the original petitions are undergraduates. 3. The posts of Selection Grade Assistant is the feeder category for promotion to the post of Section Officer. Formerly, no particular educational qualification was prescribed for the post of Section Officer. Promotions were based on seniority of persons in the feeder category. 4. Subsequent to the petitioners' entry into service, the minimum qualification for the post of Assistant was prescribed as University Degree. As a result as time progressed in the category of Assistant Grade II, Assistant Grade I and Selection Grade Assistant, Degree holders became a majority. They, through their associations clamoured for a change in the recruitment rules and wanted University Degree to be made an essential qualification for the post of Section Officer also. Therefore, the standing committees on Staff and Finance recommended to prescribe University Degree as an essential qualification for Section Officer also. However, the committees recommended that those Selection Grade Assistants in service who do not possess a University Degree may be exempted from the prescription of qualification. The Syndicate of the University, therefore, in its meeting held on 28-7-2000, approved the recommendations of the Committee, as evidenced by Exts. P1 and P2 in O.P.No.13017/2001 and decided to amend the recruitment rules accordingly. 5. However, succumbing to the pressures of the leaders of a particular employees' organisation, the Syndicate altered its decision by limiting the exemption given to Assistants in service without Degree only up to 31-12-2002. It was decided to make necessary amendments to the University Ordinance accordingly. P1 and P2 in O.P.No.13017/2001 and decided to amend the recruitment rules accordingly. 5. However, succumbing to the pressures of the leaders of a particular employees' organisation, the Syndicate altered its decision by limiting the exemption given to Assistants in service without Degree only up to 31-12-2002. It was decided to make necessary amendments to the University Ordinance accordingly. This is evidenced by Ext.P4 extract of the minutes of the meeting of the Syndicate dated 16-12-2000. Later, by Ext.P5, the Syndicate in its meeting held on 30-12-2000, decided to replace the sentence "those assistants in service without degree will be exempted till 31-12-2002" with the words "this will come into effect from 1-1-2003." Therefore, the petitioners in O.P.No.13017/2001 filed Ext.P6 representation requesting the University either to exempt them from acquiring the qualification of Degree or to allow them to revert back to the category of Typists protecting their seniority in that category and other service benefits. Pursuant to Ext.P7 judgment of this Court, the said representation was disposed of rejecting both their claims, by Ext.P8. 6. However, ultimately, the amendment to the Rule was carried out only while replacing the entire Schedule of non-teaching posts contained in Ordinance 3(3), Chapter XV of Calicut University First Ordinance, 1978, which was approved by the Senate on 31-3-2001 and the Chancellor gave his assent to the amendment on 14-9-2004. However, in this amendment, instead of making the amendment effective from 1-1-2003, a note was added to the rule granting the exemption to Selection Grade Assistants without Degree till 31-12-2002. 7. The petitioners contend that the amendment has the effect of totally throttling all chances of the petitioners for any further promotion. Therefore, they challenge the amendment as arbitrary and irrational. They further contend that even if the amendment is valid, going by Sections 36 and 37 of the Calicut University Act, 1975 it has come into force only on 14-9-2004 when the Chancellor gave assent to the amendment of the Ordinance. 8. The University has filed counter affidavits/statements. The University justifies the amendment on the ground that the qualification for the post of Assistant Grade II is University Degree and the office work relating to courses and examinations conducted by the University up to Post Graduate and Doctoral level are being done by Assistants. 8. The University has filed counter affidavits/statements. The University justifies the amendment on the ground that the qualification for the post of Assistant Grade II is University Degree and the office work relating to courses and examinations conducted by the University up to Post Graduate and Doctoral level are being done by Assistants. Since Section Officers are to supervise such Assistants, it became necessary to make University Degree an essential qualification for promotion to the post of Section Officer. They would also argue that the amendment came into force on 1-1-2003, the date fixed for such commencement in Ext.R1(a) order of the University. 9. I have heard counsel for the petitioners, the University and that of the additional 4th respondent in O.P.No.36498/2000. 10. The petitioners would contend that although the University has the power to prescribe higher qualification for a post, such prescription should have relevance in view of the nature of functions and duties attached to the post and nexus with the object to be achieved. It is submitted that the University merely succumbed to the pressures from employees' associations as is evidenced by Ext.P4. They also contend that the conditions of employment and the incidence of service of both graduates and non-graduates in the feeder post are the same. Graduates and non-graduates have all along been treated as equal ever since the framing of the University Ordinance and their nature of duties are also the same. Therefore, there is no rationale in prescribing a higher qualification for promotion, they submit. They also contend that by the amendment, all promotion chances of non-graduates have been effectively nullified which offends Articles 14 and 16 of the Constitution. 11. Another contention of the petitioners is that granting exemption to those Assistants in service without Degree only up to 31-12-2002 on 1-1-2001 is totally irrational and would not stand the test of Article 14 of the Constitution. When such an exemption is given, it should be in such a way so as to achieve the intention behind it. If the intention is to give an opportunity to Assistants in service to obtain the Degree, then the exemption should have been for a period requisite for obtaining such a Degree. When duration of a Degree course is three years, the period of exemption should be at least for such period. If the intention is to give an opportunity to Assistants in service to obtain the Degree, then the exemption should have been for a period requisite for obtaining such a Degree. When duration of a Degree course is three years, the period of exemption should be at least for such period. The petitioners further submit that in any event, the fixation of the date 31-12-2002 is absolutely irrational and without any purpose or meaning. 12. In support of the above contentions, the petitioners rely on two decisions of the Supreme Court on the point which are, (1) T.R. Kothandaraman & others v. Tamilnadu Water Supply and Drainage Board & others, (1994) 6 SCC 282 and (2) Food Corporation of India v. Om Prakash Sharma & others, AIR 1998 SC 2682. 13. Counsel for the petitioners elucidated the alternate contention by submitting that the amendment was incorporated in the Calicut University First Ordinance only along with the amendment whereby the entire schedule of non-teaching posts contained in Ordinance 3(3) Chapter XV of the Calicut University First Ordinance, 1978 was replaced, which amendment got the assent of the Chancellor only on 14-9-2004 and therefore the amended qualification came into effect only from that date. They would also contend that assent of the Chancellor was mandatory since the amendments involved expenditure, relying on Section 37(4) of the Calicut University Act, 1975. 14. Counsel for the University strenuously argued that since a University Degree is the minimum qualification for the post of Assistant Grade II, who only get promoted ultimately to the post of Section Officer, prescription of University Degree for Section Officer is not a prescription of a higher qualification. The petitioners will also be considered for promotion as and when they obtain Degree. Therefore, it is not correct to say that the petitioners' chances for promotion are completely barred. He further contends that since Section Officers are to supervise Assistants, who do the office work related to courses and examinations up to Post-graduate level, and Doctoral level, prescription of Degree as a qualification for the post is perfectly valid and proper keeping in view the nature of the duties and functions expected of a Section Officer. 15. He further contends that since Section Officers are to supervise Assistants, who do the office work related to courses and examinations up to Post-graduate level, and Doctoral level, prescription of Degree as a qualification for the post is perfectly valid and proper keeping in view the nature of the duties and functions expected of a Section Officer. 15. Regarding the contention of the petitioners on the question of date of commencement of the amendment, counsel for the University submits that Section 37(1) of the Calicut University Act provides that all ordinances made under the Act shall have effect from such date as the Syndicate may direct. The Syndicate, by Ext.R1(a) order dated 17-5-2001 effected the amendment to the Ordinance regarding qualification of Section Officer and fixed the date of coming into effect as 1-1-2003 and, therefore, the amended qualification came into effect on 1-1-2003. He further submits that the Senate, at its meeting held on 30-3-2001 and 31-3-2001, approved the amendment vide item no. II(10) of Ext.R1(b), which is the extract from the minutes of the meeting of the Senate. According to him, Section 37(4) is applicable only to amendments involving expenditure and since this particular amendment did not involve any expenditure, Section 37(4) is not applicable. 16. Counsel for the additional 4th respondent in O.P.No.36498/2000 supported the arguments of the University and further invited my attention to the decision in State of Jammu and Kashmir v. Shivram Sharma & others, (1999) 3 SCC 653 in support. 17. I have considered the arguments of counsel on both sides. First, I shall deal with the challenge against the amendment on the ground of arbitrariness and discrimination. In this connection, at the outset, I have to hold that by fixing the qualification for promotion to the post of Section Officer as University Degree, the University has, in fact, prescribed a higher qualification. The cadre of Assistants consists of both Graduates and Non-graduates. Formerly, there was no qualification prescribed for promotion of Senior Grade Assistants as Section Officer. Prior to the amendment, the entry 7 of Schedule to the Calicut University First Ordinance, 1978 reads thus: This would indicate that prior to the amendment, all Senior Grade Assistants were entitled to promotion based on seniority, irrespective of their qualification. Formerly, there was no qualification prescribed for promotion of Senior Grade Assistants as Section Officer. Prior to the amendment, the entry 7 of Schedule to the Calicut University First Ordinance, 1978 reads thus: This would indicate that prior to the amendment, all Senior Grade Assistants were entitled to promotion based on seniority, irrespective of their qualification. Therefore, when University Degree is introduced as a qualification for the promotion post in so far as the non-graduate Selection Grade Assistants in service like the petitioners are concerned, the prescription is certainly a higher qualification. The argument that since graduation is the minimum qualification for appointment as Assistant Grade II and, therefore, when graduation is prescribed as qualification for Section Officer, there is no prescription of higher qualification will not hold good because if that be so, it was not necessary to fix any qualification at all for Section Officer because only Assistant Grade II will ultimately get promoted as Section Officer and no direct recruitment is prescribed as method of recruitment to the post. 18. The questions as to under what circumstances prescription of a higher qualification for a promotion post is permissible and under what circumstances it would offend Articles 14 and 16 of the Constitution of India have been dealt with by the Hon'ble Supreme Court of India in the two decisions cited by the counsel for the petitioners mentioned supra. The first is T.R.Kothandaraman's case supra. After scanning all earlier judgments on the issue, in paragraph 16, the Court summarised the legal propositions on the question of fixation of higher qualification for promotion in public service as follows: "16. From what has been stated above, the following legal propositions emerge regarding educational qualification being a basis of classification relating to promotion in public service: (1) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances of each case. (2) Higher educational qualification can be the basis not only for barring promotion but also for restricting the scope of promotion. (3) Restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable. (2) Higher educational qualification can be the basis not only for barring promotion but also for restricting the scope of promotion. (3) Restriction placed cannot however go to the extent of seriously jeopardising the chances of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable. Reasons for this are being indicated later." The further question as to how the reasonableness of the restriction has to be judged was stated in paragraph 23 thus: "23. The next question to be examined is about the extent of the preference given to the degree-holders. At this stage, we may first give our reasons as to why this aspect is amenable to examination. The rule-making authority having made a diploma-holder eligible for promotion, it follows that a diploma holder does nor suffer from such an infirmity as to make him totally unfit for holding the higher post. If that is so, question is whether the ratio could be made so inequitable as to mock at the guarantee of equality? The right which has been conferred by one hand cannot be taken away by another, nor can the right be converted to a husk. It must continue to be a meaningful right. Too much emphasis on higher education may even cause dent to cause of social justice, as it would be the poorer section of the society which would be deprived of its legitimate expectations. The preference given to the degree holders would, at the same time, give filling to the desire to receive higher education, as such persons would always be favourably placed as compared to the lesser educated ones. A harmony would thus be struck, by maintaining reasonableness in the ratio between the call of social justice and the need for higher education, without in any way jeopardising the principal object of classification. But then, no particular ratio can be spelt out which would satisfy these requirements; the reasonableness of the ratio shall depend on facts of each case." In this connection, it may also be noted that in that decision, the Court was dealing with reasonableness of fixing the ratio of 3:2 between degree holders and diploma holders for promotion from the post of Assistant Engineer to that of Executive Engineer. In the course of discussion, the Supreme Court has dealt with the question as to whether the higher educational qualification has any relevance in the context in the following words in paragraph 22: "22. The aforesaid shows that higher educational qualification has relevance insofar as the holding of higher promotional post is concerned, in view of the nature of the functions and duties attached to that post. The classification has, therefore, nexus with the object to be achieved. This apart, history also supports the differentiation sought to be made by the rule in question. We, therefore, uphold the classification as valid." 19. In the Food Corporation of India's case (supra), the question dealt with by the Supreme Court was the validity of the amendments to a rule, fixing three years of service for graduates and five years of service for matriculates as eligibility criteria for promotion. The promotions considered in that case was from the post of Assistant GradeII/Telex Operator to the post of Assistant Grade I and from the post of Assistant Grade III/Typist/Telephone Operator to the post of Assistant Grade II. While dealing with the issue, in paragraph 16 of the decision, the Supreme Court held as follows: "16. There is no attempt made in the affidavit to show that the nature of the work in the post of AG-I or AG-II was such that it requires higher efficiency which could be expected only from graduates and not from non-graduates. In other words, there is nothing in the said affidavit to establish a nexus between the amendments and the alleged object of higher efficiency in the promotional posts of AG-I or AG-II. In the counter affidavit filed by a non-graduate respondent in the writ petition as early as in October, 1996 it was categorically stated that the duties to be carried out by the persons holding the posts of AG-I and AG-II could be performed with equal efficiency by graduates as well as non-graduates. It was stated that the nature of the work in the two posts did not warrant a classification as graduates or non-graduates. It was pointed out that all the posts of AG-I and AG-II are clerical, non-selectional and non-managerial. Along with the counter affidavit, the job descriptions of the three posts was also filed as annexure. It was stated that the nature of the work in the two posts did not warrant a classification as graduates or non-graduates. It was pointed out that all the posts of AG-I and AG-II are clerical, non-selectional and non-managerial. Along with the counter affidavit, the job descriptions of the three posts was also filed as annexure. A perusal thereof shows that the nature of the work is not such as to make differentiation between graduates and non-graduates. It is seen from the job description that a person holding the post of AG-III could be assigned with the same work as required to be performed by AG-I and AG-II but under close and immediate supervision of the supervisor. The Typists and Telephone operators are also expected to perform other duties listed for AG-III as required by their supervisors. It is thus clear from the job descriptions that the duties performed by the typists and telephone operators as well as AG-III are similar in nature excepting that the typists and telephone operators are also attending to technical work on account of their technical qualifications. None of the above matters has been touched upon by the Corporation in the additional affidavit filed as late as in May, 1998. This aspect has been rightly commented upon by learned counsel of the non-graduates." 20. Based on the ratio of these decisions, for the case at hand, the issues to be considered are: (a) Whether the prescription of University Degree as a qualification for promotion as Section Officer is a restriction seriously jeopardising the chances of promotion of Selection Grade Assistant? (b) Whether the nature and duties of the post of Section Officer is such that it requires higher efficiency justifying prescription of a higher qualification? (c) Whether the cut off date of 31-12-2002 fixed for exemption for Assistants without degree from the qualification prescribed is irrational? 21. Admittedly, at least some of the non-graduate Selection Grade Assistants come from the categories of Typists, Last Grade Servants, Clerical Assistants etc. They became Assistants by category change from equivalent categories. If they had continued in their original posts, they would have got promotions in the line of promotion applicable to those posts as evidenced by the following sentences in the counter affidavit of the University in O.P.No.13017/2002, at page (middle paragraph). "There is sufficient avenues of promotions in the cadre of Typist also. If they had continued in their original posts, they would have got promotions in the line of promotion applicable to those posts as evidenced by the following sentences in the counter affidavit of the University in O.P.No.13017/2002, at page (middle paragraph). "There is sufficient avenues of promotions in the cadre of Typist also. L.D.Typists are eligible for promotion as U.D.Typists, Sr.Gr.Typist, Sel.Gr.Typist, Office Superintendent, Section Officer and Pool Officer." From this, it is clear that in that line of promotion want of Degree would not have been a handicap for further promotion. They became Selection Grade Assistants without a Degree along with other Assistants possessing a Degree. That being so, when a Degree is prescribed as an essential qualification for promotion to the post of Section Officer, all avenues for promotion further comes to a dead end as far as the Selection Grade Assistants without Degree are concerned although they are in the feeder post. This would equally be applicable to persons who joined service as Assistants before introduction of University Degree as the minimum qualification for recruitment to the post of Assistant. This would necessarily be a restriction jeopardising the chances for promotion of those persons coming within the prohibition mentioned in sub-paragraph (3) of paragraph 16 of the judgment in Kothandaraman's case quoted supra. 22. Of course, the additional 4th respondent in O.P.No.36498/2000 would support the University decision by relying on the decision in (1999) 3 SCC 643 supra. No doubt, the said decision would support their case to some extent. But, I am of opinion that in view of the decisions cited supra of which the Food Corporation of India's case is by a Bench of 3 Judges and because of the fact that this decision was rendered on the basis of the principles enunciated in the earlier case of T.R.Kothandaraman, this decision would be applicable only to the facts of the case especially since in this, there is no discussion as to whether the higher educational qualification has relevance and nexus to the nature of functions and duties of the promotional post and the object to be achieved, which was one of the principles laid down to decide whether the restriction imposed is reasonable. As held in Food Corporation of India's case and T.R.Kothandaraman's case supra, the validity of the classification has to be judged on the facts and circumstances of each case. As held in Food Corporation of India's case and T.R.Kothandaraman's case supra, the validity of the classification has to be judged on the facts and circumstances of each case. In the facts of the present case, the materials placed before me do not justify the classification and show no nexus between the amendment and the object to be achieved since the University has sadly failed to prove that the higher educational qualification has relevance to the nature and duties attached to the higher post. 23. I may also examine the extent of the restriction to see whether it is reasonable. All these persons are almost at the fag end of their career. Obtaining Degree at this point of time would be a very difficult proposition for them, if not impossible because of their age and background. If a reasonable ratio had been fixed for promotion from among the graduates and non-graduates, it would have been reasonable as held in T.R.Kothandaraman's case or it would have been appropriate if a higher number of years of experience had been prescribed as a qualification for promotion to non-graduates. Here, no such criteria has been fixed. Instead, a totally unrealistic period of exemption has been given to non-graduates till 31-12-2002. Therefore, practically as far as Selection Grade Assistants without Degree are concerned, this is the end of the road for them as far as their careers are concerned. Counsel for the University would argue that this is no restriction at all because these non-graduates would become eligible as and when they obtain Degree, and that for many of these persons by the time their turn comes for promotion they would have had enough time to obtain a Degree. Such a contention would be unrealistic for the persons who have already crossed the age for undergoing further education with any amount of ease particularly from the background they are coming from. Obviously, they come from the lower strata of the society as is clear from the fact that they could not afford a University education. 24. Such a contention would be unrealistic for the persons who have already crossed the age for undergoing further education with any amount of ease particularly from the background they are coming from. Obviously, they come from the lower strata of the society as is clear from the fact that they could not afford a University education. 24. In this connection, it may be noted that while prescribing University Degree as a qualification for promotion to the post of Section Officer, the University did not find it necessary to prescribe such a qualification for still higher posts of Section Officer (Higher Grade), Assistant Registrar, Deputy Registrar and Joint Registrar, promotion to which posts are by promotion from the feeder category either on the basis of seniority or on the basis of seniority and merit. Even if for argument's sake, it can be said that since University Degree is prescribed as a qualification for Section Officer, it is not necessary to prescribe Degree separately for promotion to till higher posts, the same argument is applicable to the post of Section Officer also, the basic feeder post for which is Assistant Grade II, for which minimum educational qualification for direct recruitment is fixed as University Degree. If a Section Officer without a Degree who has been promoted as such before amendment can effectively function in the higher posts why can't Selection Grade Assistants, without Degree, function effectively as Section Officer, I wonder. 25. Therefore, I am of the view that this restriction placed on Selection Grade Assistants without Degree is an unrealistic and unreasonable one. 26. Now, let us see whether the higher qualification prescribed has nexus with the nature of functions and duties attached to the higher post. The University once allowed Typists to get category change as Assistants meaning thereby that the University considered these posts as interchangeable. All the three Grades of Assistants perform only clerical duties. The duties and functions of Section Officer involve supervision of these Assistants in addition to his own clerical work. For such supervision, a qualification of Degree cannot make much difference. All the three Grades of Assistants perform only clerical duties. The duties and functions of Section Officer involve supervision of these Assistants in addition to his own clerical work. For such supervision, a qualification of Degree cannot make much difference. As I have said earlier, if, for higher posts like Section Officer (Higher Grade), Assistant Registrar, Deputy Registrar and Joint Registrar, a University Degree is not an essential qualification, it is difficult to understand how a University Degree will improve the quality of work of Section Officers alone as claimed by the University in their counter affidavit. 27. On the other hand, the history of the provision as revealed from the decision of the Syndicate in Ext.P4 would go to show that the inspiration behind the amendment was not a consideration of higher efficiency in the higher post but only consistent demands from somebody. Ext.P4 starts with the following sentences:- "As per existing ordinance, no qualification is specified for the post of Section Officer in the University and hence promotion is granted only considering the seniority irrespective of qualification. There was constant demand to fix the minimum qualification for the post of Section Officer as University Degree as in the Government Secretariat. In the circumstances, the University had obtained the views of service organisations on the matter." (Emphasis supplied) Further, in the counter affidavit of the University, it is stated as follows: "Majority of the Assistants in the University are graduates since the minimum qualification for the post of Assistant Gr.II (direct recruitment) is graduation. There had been constant demand from the employees associations to fix graduation as minimum qualification for the post of Section Officer. The joint meeting of the Syndicate on Staff and Finance held on 26-7-2000 considering the demands of the employees associations recommended that the minimum general qualification required for promotion from the feeder category of Selection Grade Assistants to Section Officer be fixed as University Degree provided that Selection Grade Assistants who do not possess University Degree as on the date of Syndicate decisions be exempted from the minimum prescribed educational qualifications." (Emphasis supplied) These averments would conclusively show that the University was not moved by considerations of efficiency in the higher post while fixing a minimum qualification of University Degree for promotion to the post of Section Officer. The irrationality of the decision of the Syndicate to fix an irrelevant date of 31-12-2002 up to which date those Assistants in service without Degree were exempted from the qualification would further fortify this conclusion. Therefore, I am of opinion that for the above reasons history also does not support the differentiation sought to be made out by the University. Here, I may add that now that University Degree has already been made a basic qualification for direct recruitment to the post of Assistant Grade II, Selection Grade Assistants without Degree would shortly be an extinct species in the service of the University and when these persons retire from service, the University would be able to achieve the purported object they seek to achieve by the amendment, even if there is one as claimed. 28. Further, the answer to the question as to whether the cut off date of 31-12-2002 for exemption to Assistants without Degree is rational would also be a pointer in this regard. There is hardly two years between the decision to introduce the decision and the cut off date. It is there all to see that the period is not at all enough for the non-graduates to obtain Degree. I have asked counsel for the University as to what is the relevance or purpose of this date. Counsel tried to justify the same by arguing that the turn of the petitioners' promotion would come only much later and by that time, they would get the time to obtain Degree. I am not satisfied with that explanation because if that was the case, then it was not necessary to fix any cut off date at all. Probably, an argument could be raised that that is why in Ext.R1(a), instead of granting exemption, it was prescribed that the new prescription would come into effect from 1-1-2003. This argument would also become futile because the Senate which considered the amendment granted approval to the amendment as was originally proposed granting exemption to Assistants without Degree up to 31-12-2002 as is evident from ExtR1(b). In fact, Ext. R1(a) which contained the said commencement date was after the decision of the Senate and was not placed before the Senate at all going by the documents before me. This, I would discuss in detail while discussing the next question posed by the petitioners regarding the date of commencement of the amendment. 29. In fact, Ext. R1(a) which contained the said commencement date was after the decision of the Senate and was not placed before the Senate at all going by the documents before me. This, I would discuss in detail while discussing the next question posed by the petitioners regarding the date of commencement of the amendment. 29. In the result, I would hold that the amendment to the Regulations prescribing University Degree as a qualification for promotion of Selection Grade Assistant to the post of Section Officer with an exemption to the Selection Grade Assistant without Degree till 31-12-2002, offends the equality clause enshrined in Articles 14 and 16 of the Constitution of India and, therefore, unconstitutional. 30. Although, in view of my above decision, it is not strictly necessary to decide the next question regarding the date of coming into effect of the amendment, I will proceed to decide that question also since as I have earlier indicated, the discussion on that question will have some bearing on the first issue which I have already decided as well. The petitioners claim that the amendment comes into effect only on 14-9-2004 when the Chancellor gave assent to the same relying on Section 37(4) of the Calicut University Act, 1975 whereas the University claims that the same came into effect on 1-1-2003 which was the date of coming into effect fixed by the Syndicate in Ext. R1(a) in accordance with Section 37(1) of the Act. 31. Section 37 of the Act reads as follows: "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 subsection (1), the Ordinance shall lapse or, as the case may be, the Ordinance repealed shall revive, after the next succeeding meeting of the Senate. (3) Subject to the provisions of subsection (1) and (2), the procedure to be followed in making, amending or repealing Ordinances shall be prescribed by the Statutes. (3) Subject to the provisions of subsection (1) and (2), the procedure to be followed in making, amending or repealing Ordinances shall be prescribed by the Statutes. (4) No ordinance involving expenditure shall be valid or come into force until assented to by the Chancellor." Going by this Section in the case of amendments involving expenditure, date of granting assent by the Chancellor is the date of commencement whereas in other cases the date fixed by the Syndicate is the date of commencement. Of course, in Ext.R1(a), the Syndicate has fixed 1-1-2003 as the date of commencement of the amendment. The relevant portion of Ext.R1(a) reads thus: "Majority of the Assistants in the University are graduates since the minimum qualification for the post of Assistant Gr.II (direct recruitment) is graduation. There had been constant demand from the Employees Associations to fix graduation as minimum qualification for the post of Section Officer. The joint meeting of the Standing Committee of the Syndicate on Staff and Finance held on 26-7-2000 considering the demand of the employees associations recommend that the minimum general qualification required for promotion from the feeder category of Selection Grade Assistants to Section Officer be fixed as University Degree provided that Selection Grade Assistants who do not possess University degree as on the date of Syndicate decisions be exempted from the minimum prescribed educational qualification. The Syndicate at its meeting held on 16-12-2000 vide item No.2000.993 while considering the recommendations of the Standing Committee, has resolved that the minimum qualification for the post of Section Officer be fixed as University Degree. Those Assistants in service will be exempted from the qualification till 31-12-2002. Selection Grade Assistants without graduation will not be eligible for promotion as Section Officer w.e.f. 1-1-2003. It is not correct to say that the exemption is aimed at giving benefit to the petitioners who entered the service of Typists and then obtained category change." But, it should be noted that Chapter 37 of the Act prescribes the procedure for making Ordinances. Chapter 37 of the Act reads thus: "1. Authority to initiate Ordinance. (1) The Syndicate may make, amend or repeal Ordinances in the manner hereinafter provided. Chapter 37 of the Act reads thus: "1. Authority to initiate Ordinance. (1) The Syndicate may make, amend or repeal Ordinances in the manner hereinafter provided. (2) Every Ordinance or amendment to or repeal of an Ordinance made by the Syndicate shall be submitted as soon as may be to the Chancellor and to the Senate during its next meeting and shall be considered by the Senate. The Senate shall have power by a resolution passed at such meeting to cancel or modify any such Ordinance. 2. Suspension of Ordinance. The Chancellor may direct that the operation of any Ordinance shall be suspended until such time as the Senate has had an opportunity of considering the same." Going by Ordinance 1(2) of Chapter 37, the Senate has the power to cancel or modify any ordinance placed before it. Now, let us see how the matter was placed before the Senate. Minutes of the meeting of the Senate in which the amendment was placed has been produced by the University as Ext.R1(b). Ext.R1(b) is the minutes of the meeting held on 30-3-2001 and 31-3-2001. Ext.R1(a) is dated 17-5-2001. Therefore, what has been placed before the Senate and what has been approved thereby is not the amendment as contained in Ext.R1(a). In any event, it does not appear that Ext.R1(a) was placed at any time before the Senate, as required in Section 37(1) of the Calicut University Act and therefore it is of no effect at all. A perusal of Exts. P1, P2, P3 and P4 would go to show that till the date of Ext.P4 dated 1-1-2001, there was no effective amendment since Ext.P4 itself states that it was resolved to make necessary amendments to the ordinance according to the resolution dated 16-12-2000. From the documents placed before me, such amendment was made only by replacing the Schedule which came into effect only on 14-9-2004. Counsel for the petitioners placed before me a copy of the Notification dated 6-10-2004 notifying the replaced Schedule as contained in Appendix II of Ext.R1(b). A perusal of the same would show that some of the amendments therein involved expenditure granting special pay for certain posts. Counsel would argue that the amendment of even the clause regarding promotion to Section Officer involved expenditure since the scale of pay has been changed from what was obtaining in the ordinance before amendment. A perusal of the same would show that some of the amendments therein involved expenditure granting special pay for certain posts. Counsel would argue that the amendment of even the clause regarding promotion to Section Officer involved expenditure since the scale of pay has been changed from what was obtaining in the ordinance before amendment. Therefore, going by Section 37(4) the whole Schedule came into effect only on 16-9-2004 especially since there is no evidence that the Syndicate has directed coming into effect of the impugned amendment at any earlier date. That being so, an amendment which came into effect on 14-9-2004 cannot grant any exemption up to 31-12-2002. These circumstances coupled with the fact that in between, the University also issued Ext.R1(a) order would show that the entire process of amendment was tainted with non-application of mind. For this reason also, the amendment placing restriction on the chances of promotion of Selection Grade Assistants without Degree as Section Officer suffers from the vice spelt out in sub-paragraph (3) of Paragraph 16 of T.R.Kothandaraman's case quoted supra. 32. In the result, the impugned amendment is struck down as unconstitutional. Consequently, all promotions made based on the amendment will be reviewed by the University in accordance with the unamended ordinance relating to qualification and method of promotion of Section Officer. Monetary benefits arising therefrom will also be paid. This shall be done within a period of two months from the date of receipt of a copy of this judgment. The original petitions are allowed as above. No costs.