JUDGMENT : (P.G. Ajithkumar, J.) These appeals under Section 5(i) of the Kerala High Court Act, 1958 were filed by the Kerala Public Service Commission (PSC) and the State of Kerala challenging the judgment dated 12.02.2024 in W.P.(C) No. 9309 of 2023. Common respondents No.1 to 7 filed the writ petition. Their challenge was against Exts.P1 and P4 insofar as the same fixed qualification for appointment to the post of Last Grade Servants in various Universities in Kerala that the candidates should not have acquired any graduation. Similar criteria contained in the Special Rules for the Kerala Last Grade Service were made applicable to the said appointment as well. The learned Single Judge allowed the writ petition and directed to make selection on the basis of the qualifications fixed in the respective statutory provisions applicable to respective universities. 2. The case of respondents No.1 to 7 was the following: Exts.P2 to P2(g) Statutes/Regulations/Ordinances (Special Rules) do not prescribe a qualification that candidates for appointment to the post of Last Grade Servants in any of the Universities in Kerala should not have acquired graduation. By enacting the Kerala Public Service Commission (Additional Functions as Respects the Services under the Universities) Act, 2015 (for short “KSPC Additional Functions Act”), the Kerala Public Service Commission was empowered to prepare select lists for the appointment of non-teaching employees in the universities enlisted therein. Although Section 3(2) of the KPSC Additional Functions Act enunciates that the Universities shall consult the PSC on all matters relating to methods of recruitment of the non-teaching staff, on the principles to be followed in making the recruitment and suitability of candidates to such appointments, no provision has been enacted enabling the Government or the PSC to fix the qualification of the candidates. The Government, however, issued Ext.P4 order dated 06.11.2020 fixing the qualification, inter alia, that the candidates should not have obtained graduation. Respondents No.1 to 7 are graduates. When such a qualification was prescribed in Ext.P4 in derogation of the statutory provisions, the rights of the said respondents to participate in the selection process was lost. Ext.P4 is unsustainable and arbitrary. Similarly, the provision in Ext.P4 making applicable the criteria for selection of Last Grade Servants in Ext.P5 Special Rules for the Kerala Last Grade Servants also is arbitrary and whimsical. Ext.P4 is unsustainable and arbitrary. Similarly, the provision in Ext.P4 making applicable the criteria for selection of Last Grade Servants in Ext.P5 Special Rules for the Kerala Last Grade Servants also is arbitrary and whimsical. On the basis of such assertions, respondents No.1 to 7 sought the following reliefs: “i) To issue writ of certiorari quashing Ext P1 to the extent which it states in paragraph 7 of the same that, "2. Should not have acquired any graduation Note: Criteria in LGS Rules are also applicable (Last Grade Service Rule in Government Departments -G.O (P) No. 82/66/PD dated 08.03.1966 G.O (Ms) 21/2011/P&ARD dated 01.07.2011)" and all further process based on the same as unjust illegal and arbitrary; ii) To issue writ of certiorari quashing Ext.P4 to the extent which it fixes qualification for Last Grade Servants as unjust illegal and arbitrary; iii) To declare that Ext.P4 is ultra vires to and violative of Ext.P3; iv) Declare that Ext.P5 and Ext.P6 are not applicable as far as Last Grade service of Universities in Kerala are concerned; v) To declare that the petitioners are eligible to apply and participate in the selection process pursuant to Ext.P1 as they are qualified as on last date of application, i.e. 01.02.2023; vi) To issue writ of mandamus directing the respondents to permit the petitioners to apply and participate in the selection process initiated as per Ext.P1 as they are qualified as on the last date of application, i.e. 01.02.2023.” 3. The State of Kerala, PSC and the Universities have filed counter-affidavits/statements. Their common contention in regard to prescribing of qualifications in Ext.P1 is in terms of Ext.P4 G.O. and therefore there is no irregularity or illegality in it. Laudable object of bringing about uniformity in the selection process and providing opportunities for the less fortunate owing to their inability to acquire higher qualification were highlighted by the State as well as the PSC. It was urged that on account of the disparity concerning the qualification in the provisions in various University Statutes, Ordinances and Regulations, the Government has, in exercise of its powers under Article 162 of the Constitution of India, issued Ext.P4 order, which is well within its powers. It was urged that on account of the disparity concerning the qualification in the provisions in various University Statutes, Ordinances and Regulations, the Government has, in exercise of its powers under Article 162 of the Constitution of India, issued Ext.P4 order, which is well within its powers. The authority of the State and the PSC to prescribe such a qualification certainly flows from the provisions of the KPSC Additional Functions Act and respondents No.1 to 7 approached this Court without any tenable ground. Accordingly, they sought to dismiss the writ petition. 4. The learned Single Judge took the view that without amendment in the respective Special Rules, the Government cannot issue the executive order like Ext.P4 which militate against the existing provisions in the respective Special Rules. Howsoever laudable is the object, Ext.P4 G.O. was issued in derogation of the provisions of law and hence it is unsustainable and accordingly the writ petition was allowed. 5. Heard the learned Standing Counsel for the PSC, the learned Senior Government Pleader, the learned counsel for respondents no.1 to 7 and the learned Standing Counsel for the respective Universities. 6. The questions arise for consideration are,- (i) Is Ext.P4 order prescribing qualifications different from that contained in the Special Rules in the purported exercise of powers under Article 162 of the Constitution of India valid? (ii) Whether the exigency of making urgent recruitment of Last Grade Servants in the Universities justified the Government in issuing Ext.P4 and also making applicable Note (1) to Rule 8 of in Special Rules for the Kerala Last Grade Services which prescribe that candidate should not have acquired graduation? 7. The qualifications required for the candidates for appointment to the post of Last Grade Servants in the Universities in Kerala differ substantially. The qualifications prescribed in the respective Statute/Ordinance/Regulation as tabulated in Paragraph No.7 of the writ petition are the following: Exhibit Qualification prescribed for appointment as Last Grade Servant Name of post Ext.P2 No person shall be eligible for appointment to the post unless he possesses the qualifications mentioned below: A. Qualifications for direct recruitment: Pass in Standard V and good physique Desirable: Ability in cycle riding. This will not be insisted upon in respect of women candidates. B. Qualifications for internal selection Pass in Standard IV Desirable: Ability in cycle riding. This will not be insisted upon in respect of women candidates. This will not be insisted upon in respect of women candidates. B. Qualifications for internal selection Pass in Standard IV Desirable: Ability in cycle riding. This will not be insisted upon in respect of women candidates. Class IV posts Ext.P2(a) Must be able to read and write Malayalam, Tamil and Kannada. Note: For appointment to the post of Peons by direct recruitment, ability to ride a bicycle will be desirable qualification. Last Grade Staff Ext.P2(b) 1. Ability to read and write. 2. Ability to ride bicycle. Integrated cadre of Last Grade Employees: Peons/ Watchmen Ext.P2(c) Ability to read and write Integrated cadre of last grade employees: Peon/Watchman/ Lascar/Cook/Gardener /Sweeper/Cleaner, etc. Ext.P2(d) Must be able to read and write Malayalam, Tamil or Kannada. Last Grade staff belonging to SC/ST community provisionally promoted as Attender shall be given four chances for passing the Attender's Test. Last Grade Staff Ext.P2(e) 1. Ability to read and write. 2. Ability to ride bicycle. Peon Ext.P2(f) Pass in Standard VIII and having good physique. Ability in cycle riding desirable for male candidates. Class IV (Grade II) Employee Ext.P2(g) Must be able to read and write Malayalam, Tamil or Kannada. Last Grade Staff belonging to SC/ST community provisionally promoted as Attender shall be given four chances for passing the Attender's Test. Last Grade Staff 8. The Government taking into account the apparent dissimilarity in the qualifications as prescribed in the Special Rules and keeping in mind the onerous and time consuming process of bringing about amendments to the provisions in the respective Special Rules, issued Ext.P4 order dated 06.11.2020. The learned Standing Counsel for the PSC as well as the learned Senior Government Pleader pointing out the urgency in making recruitment, the empowerment under Section 3 of the KPSC Additional Functions Act and the powers the Government wield under Article 162 of the Constitution of India defended Ext.P4 order. It is also urged that when the Special Rules for the Kerala Last Grade Service under which the PSC has been making recruitment to the post of Last Grade Servants in various other Departments, prescribing similar qualification in Ext.P4 is quite justified. 9. As pointed out by the learned Single Judge, the objective behind issuing Ext.P4 order is understandable. The bona fides in issuing the said order need not be doubted also. 9. As pointed out by the learned Single Judge, the objective behind issuing Ext.P4 order is understandable. The bona fides in issuing the said order need not be doubted also. The question is, can the Government issue such an order since it goes against the provisions prescribing qualifications in the Special Rules? 10. Section 3 of the KPSC Additional Functions Act reads as follows: “3. Functions of the Public Service Commission.— (1) Notwithstanding anything contained in the University Acts specified in clause (a) of section 2 and the statutes, ordinances, regulations and rules made thereunder, it shall be the duty of the Public Service Commission to prepare select list, for appointment by direct recruitment, of employees to the non-teaching post of a University. (2) A University shall consult the Public Service Commission,— (a) on all matters relating to the method of recruitment of the non-teaching staff of the University; and (b) on the principles to be followed in making appointments by direct recruitment to the non-teaching posts in the University and the suitability of candidates for such appointments. (3) Where the Public’ Service Commission is consulted on a matter under sub-section (2), the Commission shall advise the University on that matter. (4) In the case of any difference of opinion between the Public Service Commission and the University on a matter under sub-section (2), ‘the University shall refer the matter to the Government and the decision of the Government thereon shall be final: Provided that the Government shall, before taking a decision against the advise of the Public Service Commission, refer the matter to the Public Service Commission.” 11. Section 3 does not empower the Government or the PSC to prescribe qualifications of the candidates for appointment to various non-teaching posts by direct recruitment. There is no such claim in Ext.P4 order also. Of course, as regards the empowerment of the PSC to make recruitment in terms of the provisions of KPSC Additional Functions Act is undisputed. Also, the authority of the employer to fix qualification subject to law is indisputable. But the provisions in the said Act does not empower the Government or the PSC to prescribe qualifications of the candidate for the recruitment of Last Grade Servants. Also, the authority of the employer to fix qualification subject to law is indisputable. But the provisions in the said Act does not empower the Government or the PSC to prescribe qualifications of the candidate for the recruitment of Last Grade Servants. On the other hand, the respective Special Rules contain provisions prescribing qualification for Last Grade Servants, which are apparently different from what has been prescribed as per Ext.P4 and also in Ext.P1. It is pertinent to note that the direction in Ext.P4 to the Universities is to bring about necessary changes in the Special Rules. No more discussion is required to say that the candidate for recruitment to the post of Last Grade Servant should have graduation is against the statutory provision in the Special Rules. 12. The Apex Court in K.Kuppusamy v. State of Tamil Nadu [ (1998) 8 SCC 469 ] held as follows: 3. The short point on which these appeals must succeed is that the Tribunal fell into an error in taking the view that since the Government had indicated its intention to amend the relevant rules, its action in proceeding on the assumption of such amendment could not be said to be irrational or arbitrary and, therefore, the consequential orders passed have to be upheld. We are afraid this line of approach cannot be countenanced. The relevant rules, it is admitted, were framed under the proviso to Article 309 of the Constitution. They are statutory rules. Statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the rules does not mean that the rule stood obliterated. Till the rule is amended, the rule applies. Even today the amendment has not been effected. As and when it is effected ordinarily it would be prospective in nature unless expressly or by necessary implication found to be retrospective. The Tribunal was, therefore, wrong in ignoring the rule.” (under supplied) 13. This Court considered legality of executive orders issued in exercise of the powers under Article 162 of the Constitution of India, which is against the provisions of the constitution or any other law in Fenny K.P.(Dr.) v. State of Kerala [ 2014 (3) KLJ 448 ]. It was held that ordinarily, the executive power connotes the residue of Government functions that remain after legislative and judicial functions are taken away. It was held that ordinarily, the executive power connotes the residue of Government functions that remain after legislative and judicial functions are taken away. But in the guise of executive functions neither the Union nor the State executive can go against the provisions of the Constitution or any law. 14. In the light of the law laid down in the aforesaid decisions, the view taken by the learned Single Judge that Ext.P4 is wrong insofar as it excludes graduates from the zone of consideration, cannot be said to be incorrect. The challenge in the writ petition is against fixing of the qualification that the candidates should not have graduated. The said stipulation in Ext.P4 and as its corollary, similar stipulation in Ext.P1 are illegal and liable to be set aside. Suffice it to say that Note (1) to Rule 8 of the Special Rules for the last Grade Services cannot also be made applicable to the recruitment as per Ext.P1. 15. As stated, the qualifications prescribed in various Special Rules vary. Therefore, while making common recruitment, which the PSC is empowered under Section 3 of the KPSC Additional Functions Act, there shall be a uniformity in the qualification. Such common educational qualification shall not be higher than the qualification among any of those prescribed in the Special Rules. It can certainly be resorted to a purposive interpretation of the provisions in order to unify the qualifications while going for a combined recruitment to all the Universities . It is especially so, when the recruitment shall be done expeditiously and unification of qualifications in various special statutes by bringing about amendments to all the statutes within a short time is quite impossible. In the said circumstances, we are of the view that deletion of the qualification prescribed in Exts.P1 and P4 that the candidates should not have acquired graduation alone is enough. The relief claimed in the writ petition is also the same. Accordingly, these writ appeals are disposed of modifying the judgment of the learned Single Judge. Instead of conducting fresh recruitment reckoning the qualifications prescribed in various special statutes, the PSC can proceed with the recruitment after deleting from Ext.P1 the prescription regarding qualification that the candidates should not have acquired graduation and also the note that the criteria in the Last Grade Service Rules are also applicable. Instead of conducting fresh recruitment reckoning the qualifications prescribed in various special statutes, the PSC can proceed with the recruitment after deleting from Ext.P1 the prescription regarding qualification that the candidates should not have acquired graduation and also the note that the criteria in the Last Grade Service Rules are also applicable. Needless to say, fresh tests after a re-notification with the amendment concerning qualification as above are required.