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2009 DIGILAW 939 (KER)

Preetha. S. Nair, Kizhakkekanayil v. Sree Sankaracharya University

2009-10-05

K.BALAKRISHNAN NAIR, P.BHAVADASAN

body2009
Judgment :- Balakrishnan Nair, J. The writ petitioner is the appellant. The point that arises for decision in this appeal is whether the post of Public Relations Officer (PRO) in the 1st respondent University, which was created with the sanction of the Government, could be filled up on a regular basis without prescribing the qualifications and method of appointment, by amending the relevant Statutes of the University or a decision of the Syndicate will be sufficient in its place. 2. The brief facts of the case are the following: The 1st respondent University issued Ext.P2 notification dated 25.2.2006, inviting applications for the post of PRO and Senior Publication Officer. In this case, we are concerned only with the appointment to the post of PRO. The last date fixed for receipt of applications was 10.3.2006. The qualifications prescribed were: a) First or Second Class Masters Degree in Journalism from a Recognised University. b) Three years experience in the field of Journalism/ Public Relations in any reputed mass media institutions. c) Experience as PRO in any University (desirable) d) Knowledge in Computer Packages like Multimedia. e) Proficiency in English and Malayalam languages. According to the petitioner qualification (c), that is, experience as PRO in any University, which is prescribed as a desirable qualification, has been tailor-made to select the 4th respondent, who was working, at the relevant time, as Public Relations Officer under the 1st respondent University on contract basis. The appellant/petitioner would further submit that even before the post was created by the University with the previous sanction of the Government, Ext.P2 notification was issued. She would point out that by Ext.P3 order dated 24.2.2006, the Government gave sanction for creation of one post of Public Relations Officer in the scale of pay of Rs.7800-12975/- in the University. On the next day itself, that is, on 25.2.2006, Ext.P2 notification was issued, inviting applications for the said post. In other words, there was no decision of the Syndicate to create a post, after the issuance of Ext.P3 approval by the Government and before inviting applications. She would further point out that the qualifications and method of appointment have to be prescribed by the Statute, which has to be framed by the Syndicate with the approval of the Chancellor. In other words, there was no decision of the Syndicate to create a post, after the issuance of Ext.P3 approval by the Government and before inviting applications. She would further point out that the qualifications and method of appointment have to be prescribed by the Statute, which has to be framed by the Syndicate with the approval of the Chancellor. In this case, it is the admitted position that so far the Statutes have not been amended, prescribing the qualifications and method of appointment to the aforementioned post. In view of the above position, the proposal for selection to the post of PRO was illegal. Therefore, the Writ Petition was filed, praying to quash Ext.P2 notification and for a declaration that the post of PRO could not be filled up without framing/amending the Statutes prescribing the qualifications and method of appointment to that post. 3. The University filed a counter affidavit, disputing the claims of the appellant/writ petitioner and asserting that all statutory requirements were complied with before issuing Ext.P2 notification. According to the University, the Syndicate has prescribed the qualifications and method of appointment. For making selection, it is not at all necessary for framing the Statute or amending the Statute. Immediately, after receipt of sanction of the Government, steps were rightly taken to fill up the post by issuing Ext.P2 notification. The petitioner/appellant filed a reply affidavit, disputing the claims of the University and also produced Ext.P4 note to the Syndicate, submitted by the Registrar, which would show that the proposal placed before the 46th meeting of the Syndicate held on 30.1.2003, was to create, inter alia, a post of PRO by amending the Statute, subject to Government approval. The 4th respondent also filed a counter affidavit in the Writ Petition, supporting the actions of the University and also denying the allegations against him. The learned Single Judge, after hearing both sides, took the view that for making recruitment to the post of PRO, framing of the Statute or amendment of the Statute was not necessary. It was also found that the writ petitioner, who has not applied for the post, has no locus standi to maintain the Writ Petition. In that view of the matter, the Writ Petition was dismissed. Challenging the judgment of the learned Single Judge, this Writ Appeal is preferred. 4. It was also found that the writ petitioner, who has not applied for the post, has no locus standi to maintain the Writ Petition. In that view of the matter, the Writ Petition was dismissed. Challenging the judgment of the learned Single Judge, this Writ Appeal is preferred. 4. The appellant reiterated the contentions raised before the learned Single Judge and added that the finding of the learned Judge that without framing the Statute, selection to the post can be made, is unsustainable in law. Regarding her locus standi, it was submitted that if proper prescription of the qualifications is made by the Syndicate with the approval of the Chancellor, the desirable qualification of working in a University may not be there. Only because of that qualification, she could not apply for the post. She has the necessary standing and therefore, the appellant prayed for allowing the appeal. 5. During the pendency of the appeal, the University changed its stand. It has filed an affidavit in this appeal, substantially supporting the stand of the appellant. In that affidavit, it is stated that selection could have been validly made, only after framing the Statute, prescribing the qualifications and method of appointment, with the approval of the Chancellor. 6. We heard the learned counsel Sri.P.C.Sasidharan for the appellant, Sri.Vijayamohan, learned Standing Counsel for the University and the learned Government Pleader, Sri.T.B.Hood, for the Chancellor. The learned counsel reiterated their respective contentions. On behalf of the Chancellor, the learned Government Pleader submitted that, without framing the Statutes governing qualifications and method of appointment to the post of PRO, regular selection could not have been made. The learned counsel for the appellant, in support of his submissions, relied on the decision of this Court in Santhamma.P.S. v. Krishnakumari.M.P. and others [I.L.R.2008(3) Kerala 747]. It was a case, wherein, the Syndicate of the University sought to vary the qualifications prescribed for a post under the Statute, by taking a decision on the administrative side. The learned counsel for the University brought to our notice an unreported decision of this Court in W.A.No.2229/2006 dated 17.8.2009, wherein, according to the learned counsel, identical point was considered. It was a case, wherein, the Syndicate of the University sought to vary the qualifications prescribed for a post under the Statute, by taking a decision on the administrative side. The learned counsel for the University brought to our notice an unreported decision of this Court in W.A.No.2229/2006 dated 17.8.2009, wherein, according to the learned counsel, identical point was considered. The learned counsel for the 4th respondent, on the other hand, relied on the Division Bench decision of this Court in Suresh v. M.G. University [2009 (1) KLT 950], wherein, there was an observation that a statutory authority which is authorised to frame subordinate legislation may issue executive orders on subjects, concerning which they are authorised to frame Rules or Regulations. The learned counsel also distinguished the decision in Santhamma.P.S. (supra) stating that the said decision only says that by an executive decision, statutory rule could not be amended. In the case on hand, there is no existing statutory rule governing the qualifications and method of appointment to the post of PRO. 7. Before referring to the rival contentions, we will presently refer to the relevant statutory provisions: Section 7 of the Sree Sankaracharya University of Sanskrit Act, 1994 (hereinafter referred to as 'the Act') refers to the powers and functions of the University. Section 7(xxi) of the Act says that the University shall have power "to create administrative and other posts with the prior approval of Government and to appoint persons to such posts". Section 14 of the Act deals with the powers and functions of the Syndicate. Section 14(2) (h) of the Act says that subject to the provisions of this Act and the Statues, the Syndicate shall have the following powers, inter alia, "to create teaching and non-teaching posts in the University with the prior approval of the Government." Section 31 of the Act provides that Vice-Chancellor shall be the appointing authority of the teachers, officers and other employees of the University and the appointment shall be made on the advice of appropriate Selection Committee constituted in the manner prescribed by the Statutes. Sub-section (4) of Section 31 reads as follows: "The procedure for the recruitment, the qualification and conditions of service of the teaching and non-teaching employees of the University shall, unless otherwise provided for in this Act be such as may be prescribed by the Statutes". Section 39 deals with Statutes. Sub-section (4) of Section 31 reads as follows: "The procedure for the recruitment, the qualification and conditions of service of the teaching and non-teaching employees of the University shall, unless otherwise provided for in this Act be such as may be prescribed by the Statutes". Section 39 deals with Statutes. The said section says, subject to the provisions of this Act, the Statutes may provide for all or any of the matters mentioned therein. The matters enumerated therein includes "the procedure for recruitment of the teaching and non-teaching staff of the University." Section 40 provides how the Statutes are to be framed. Sub-section (5) says that "The Statutes shall come into force on the date on which the same as assented by the Chancellor is published in the Gazette". Sub-section (7) says "No Statutes or amendment to a Statute involving expenditure shall be made by the Syndicate without the prior concurrence of the Government". Statute 6 of Chapter IV of Volume-2 of Sree Sankaracharya University of Sanskrit tatutes, 1997 says "Constitution of the Sree Sankaracharya University of Sanskrit Service consist of four class of posts". Statute 7 says "Qualification, method of recruitment and scales of pay of the various posts of non-teaching staff in the University shall be such as in the Schedule." 8. Going by the above statutory provisions, a post like that of the PRO can be created only with the previous sanction of the Government. In this case, the Syndicate decided to create a post and moved for sanction. Immediately, after obtaining sanction as per Ext.P3, the University took steps to fill up the post by issuing Ext.P2 notification. The Syndicate met on 4.3.2006, after the issuance of the notification, and ratified the action of issuing the notification. That is, based on the sanction received, the Syndicate of the University decided to proceed with the selection process for filling up the post of PRO. According to the appellant, before the issuance of Ext.P2, there should have been a decision by the Syndicate. But, we notice that there is a decision of the Syndicate on 4.3.2006. So, even assuming, there is some technical irregularity in the issuance of the notification before the formal meeting of the Syndicate after the receipt of sanction as per Ext.P3, the same will not vitiate the selection. But, we notice that there is a decision of the Syndicate on 4.3.2006. So, even assuming, there is some technical irregularity in the issuance of the notification before the formal meeting of the Syndicate after the receipt of sanction as per Ext.P3, the same will not vitiate the selection. But, regarding the second point that there should be a prescription of qualification and method of appointment for the post by amending the Statute preceding the selection, we find considerable force in the same. The University is a statutory body. Of course, with the approval of the Government it is competent to create various posts necessary for the proper functioning of the University. The employment under the University is public employment and therefore, everyone qualified is entitled to get a fair opportunity to contest for the post. When the provisions of the Act and Statutes, which we have quoted above, mandates that prescription of qualifications and method of appointment to a post is necessary for filling up the same, we think the stand of the University that by taking an executive decision it can proceed with the selection, cannot be accepted. So, the selection proceedings initiated by issuing Ext.P2 notification are vitiated, as the same was not preceded by the framing of Statutes prescribing the qualifications and method of appointment to the post of PRO with the approval of the Chancellor. 9. The next point to be considered is whether this Court should interfere with the selection and appointment of the 4th respondent, as the challenge was made by the appellant, who did not apply for the post. In this context, we notice the specific contention raised by the 4th respondent that the appellant has no locus standi to maintain the Writ Petition. According to the appellant, the qualification of experience of working in a University, notified as a desirable qualification, was one tailor-made to suit the 4th respondent. If the qualifications were prescribed with the approval of the Chancellor, the chances of the said qualification being removed from the proposed Statute cannot be ruled out. If that be so, the appellant could have applied for the post. If the qualifications were prescribed with the approval of the Chancellor, the chances of the said qualification being removed from the proposed Statute cannot be ruled out. If that be so, the appellant could have applied for the post. In this context, we refer the decision of the Division Bench of this Court in W.A.No.1130/2009 dated 27.8.2009, wherein, this Court declined to interfere with the selection, even though it was found that the candidate selected was over-aged, for the reason that even if the appointment was set aside, the appellant would not be benefited, as his position in the rank list was lower down. Of course, if he was next candidate in the list to be appointed, this Court would have interfered with the appointment. But, we think that the said decision cannot be mechanically applied to the facts of this case. If prescription of qualifications and method of appointment is made by framing statutes and the selection is followed, the chances of the appellant being qualified as per the statutory prescription cannot be ruled out. This is not a case where even if the selection is unsettled, the appellant is not going to be benefited. She may gain a benefit, which will depend upon the qualifications to be included in the Statutes to be framed. Further, the appellant is not a person attacking the selection made pursuant to the notification, but an unemployed person who demands that the notification inviting applications for appointment in public service should be made according to law. So, we are not inclined to hold that the appellant has no locus standi to challenge the steps taken for selection without framing Statutes. Recently, this Division Bench in W.A.2188/2008 has held that selection to the post of PRO in the Kannur University could not have been made without prescribing the qualifications and method of appointment to the post by prescribing necessary Ordinance. We have no doubt in our mind that the steps taken by the University to make appointment to the post of PRO without prescribing the qualifications and method of appointment by framing Statutes were illegal and unsupportable in law. It is so declared. 10. In the result, the judgment under appeal is reversed and Ext.P2 is set aside. The selection and appointment of the 4th respondent being dependent proceedings, they shall also collapse. It is so declared. 10. In the result, the judgment under appeal is reversed and Ext.P2 is set aside. The selection and appointment of the 4th respondent being dependent proceedings, they shall also collapse. The University will be free to make fresh selection, in accordance with law, after framing the necessary Statutes. Till regular selection is made, the 4th respondent can be retained in service, if the University requires the services of a PRO. The Writ Appeal is allowed as above.