Kerala High Court
Vasanthy A.B vs Kerala Veterinary And Animal Sciences ... on 28 September, 2017
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 28TH DAY OF SEPTEMBER 2017/6TH ASWINA, 1939
WP(C).No. 33397 of 2016 (Y)
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PETITIONERS:
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1. VASANTHY A.B
W/O. BHASKARAN, AGED 55,
PERMANENT LABOURER
PRESENTLY WORKING IN COLLEGE OF VETERINARY AND ANINMAL
SCIENCE, MANNUTHY P.O., THRISSUR.
2. SWAYAMPRABHA K.R.
W/O. DHARMAJAN, AGED 49,
PERMANENT LABOURER
PRESENTLY WORKING IN COLLEGE OF VETERINARY AND ANINMAL
SCIENCE, MANNUTHY P.O., THRISSUR.
3. MARYKUTTY C.D.
D/O. DEVADAS, AGED 53,
PERMANENT LABOURER
PRESENTLY WORKING IN UNIVERSITY LIVE STOCK FARM, FRDS
MANNUTHY P.O., THRISSUR.
4. VIJAYAN P.G.
S/O. P.N. GOPALAN, AGED 52,
PERMANENT LABOURER
PRESENTLY WORKING IN UNIVERSITY LIVE STOCK FARM,FRDS
MANNUTHY P.O., THRISSUR.
5. ALPHONSA A.D.
W/O. THOMAS, AGED 51,
PERMANENT LABOURER
PRESENTLY WORKING IN UNIVERSITY LIVE STOCK FARM,FRDS
MANNUTHY P.O., THRISSUR.
BY ADVS.SRI.G.KRISHNAKUMAR
SMT.M.L.REMYA
RESPONDENTS):
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1. KERALA VETERINARY AND ANIMAL SCIENCES UNIVERSITY
POOKKODU, LAKKADI P.O., WAYANAD,
REPRESENTED BY ITS REGISTRAR.
2. LABOUR OFFICER,
KERALA VETERINARY AND ANIMAL SCIECNCES UNIVERSITY,
POOKKODU, LAKKADI P.O., WAYANAD.
3. STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.
R1 & 2 BY ADV. SRI.MILLU DANDAPANI,SC,K.V & A.S. UTY
R1,R 2 BY ADV. SMT.AYSHA YOUSEFF, SC, KERALA VETERINARY
AND ANIMAL SCIENCES
R3 BY GOVERNMENT PLEADER SRI.K.P.HARISH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
18-08-2017, ALONG WITH WPC. 33919/2016, THE COURT ON 28/09/2017
DELIVERED THE FOLLOWING:
WP(C).No. 33397 of 2016 (Y)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXT. P1: A TRUE COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF
THE 4TH PETITIONER.
RESPONDENTS' EXHIBITS
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NIL
/TRUE COPY/-
PA TO JUDGE
ANU SIVARAMAN, J.
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W.P.(C).Nos.33397 & 33919 of 2016
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Dated this the 28th day of September, 2017
JUDGMENT
1.Heard the learned counsel for the petitioners, the learned standing counsel for 1st respondent University and the Government Pleader.
2.The contentions of the petitioners are as follows:-
The petitioners are working as permanent labourers in the 1st respondent University. They were initially appointed in the Kerala Agricultural University and were transferred to the 1st respondent University after its formation. They have only primary education and are able to read and write Malayalam and possess good physique. They contend that the only promotional avenue for the permanent labourers is as Class IV employees. It is contended that historically, Class IV posts have been manned by promotion/internal recruitment from permanent labourers who are having ability to read and write Malayalam and have good physique and the said Rule is still in force in the Kerala University. In the Kerala Agricultural W.P.(C).Nos.33397& 33919/16 2 University qualification for Class IV posts was ability to read and write Malayalam, Tamil or Kannada till 2009. The very same qualification is in force in the M.G. University, Calicut University and Kannur University. It is urged that entire permanent labourers having ability to read and write and having proper physique constitute a class by themselves for the purpose of promotion to the post Class IV. Hence, further classification in terms of Clause 22(11) of Schedule 1 of R 188 of the Veterinary and Animal Science University First Statute from among the permanent labourers based on pass in 8th standard is mini classification having micro distinction and is violative of Article 14 & 16 of the Constitution. It is also contended that promotional avenue is part of right to advancement enshrined under Article 21 of the Constitution.
The Government cannot discriminate the under privileged permanent labourers in the first respondent who are having ability to read and write Malayalam and having good physique and the ability to discharge the functions and duties attached to Class IV posts. They therefore seek a declaration that the W.P.(C).Nos.33397& 33919/16 3 provisions of the First Statues prescribing pass in 8th standard as qualification for promotion as Class IV employees is violative of Article 14,16 and 21 of the Constitution of India. They seek a further declaration that they are entitled to be promoted as Class IV employees.
3.The learned counsel for the petitioners places reliance on the various decisions of the Apex Court. In N.Abdul Basheer and others v. K.K.Karunakaran and others [1989 Supp (2) SCC 344] the Apex Court held that the prescription of a ratio dividing the quota of promotion between graduates and non- graduates, who constitute part of the same cadre is violative of Article 14 and 16 of the Constitution of India. It has been further held as follows:-
"Ordinarily, it is for the government to decide upon the considerations which, in its judgment, should underlie a policy to be formulated by it. But if the considerations are such as prove to be of no relevance to the object of the measure framed by the government it is always open to the court to strike down the differentiation as being violative of Articles 14 and 16 of the Constitution."
W.P.(C).Nos.33397& 33919/16 4
4.In Roop Chand Adlakha and others v. Delhi Development Authority and others [1989 Supp (1) SCC] the Apex Court held that where differences in educational qualification are relied upon to give preferential treatment to one class of candidates as against the other the question whether the classification is reasonable or not must necessarily depend upon the facts of each case and the circumstances obtaining at the relevant time. It is further stated that the process of classification would be valid if it recognizes a pre-existing inequality and acts to do away with the effects of such an equality. But classification, if any, should be relevant to the goal sought to be achieved by the law which seeks to classify.
5.In T.R.Kothandaraman and others v. Tamil Nadu Water Supply & Drainage Board and others [(1994) 6 SCC 282] while upholding a ratio fixed between degree and diploma holders the Apex Court had held as follows:-
"Apart from the aforesaid propositions there are two other determinants viz. the call of social justice and importance of W.P.(C).Nos.33397& 33919/16 5 education. Court has to see, while examining the provision on the anvil of Articles 14 and 16 of the Constitution whether Article 21 is offended in any way.
At the same time it has to be remembered that diploma- holders are drawn mainly from poorer families and they are incapable of making the degree grade. The "chill penury"
should not, therefore, be allowed to "repress their noble rage." Social justice would not permit the Court to do so. It may be that social justice is not a fundamental right, social justice being a requirement of directive principles of our Constitution, the same has to be our desideratum in any case."
6.In Council of Scientific and Industrial Research and another v. K.G.S.Bhatt and another [1989 (4) SCC 635], the Apex Court deprecated a policy formulated by a public authority which did not provide any promotional avenues at all and resulted in stagnation of employees in a particular cadre. In Dr.O.Z Hussain v. Union of India and others [AIR 1990 SC 311] also the issue of stagnation was taken up by the Apex Court and it was held that provisions for promotion increase efficiency of public service and stagnation without promotion W.P.(C).Nos.33397& 33919/16 6 is anathema to a conducive working atmosphere. The decisions in State of Tripura and others v. K.K.Roy [2004 KHC 870] and Food Corporation of India and others v. Parashotam Das Bansal and others [2008 KHC 4183] are also relied on for purpose of contending that stagnation in a particular post has been frowned upon by the Apex Court. Relying on these decisions, it is argued that the literate petitioners are perfectly suited to carry out the functions of last grade employees which also involves only menial duties.
7. A counter affidavit has been filed on behalf of the respondents 1 and 2 contending that the fixation of qualification is a policy matter and it has been repeatedly held by the Apex Court that unless positive instances of discrimination are pleaded and proved, the constitutional courts are not to interfere in the matter of fixation of qualifications for a post. It is further contended that no request for any change in the policy had ever been made by the petitioners either before the University or the Government and that the writ petition is theretofore not W.P.(C).Nos.33397& 33919/16 7 maintainable. It is further stated that the petitioners had been transferred from the Kerala Agricultrual University where also they would not have been entitled to promotion as Class IV employees since the qualification fixed by the Statutes was pass in 5th standard which the petitioners did not possess. It is also contended that the respondents had not effected any change in the qualification and had only prescribed a qualification for appointment to Class IV posts in its establishment after the University was newly constituted. It is also contended that the Calicut and Kerala University First Statues were framed several decades ago and the provisions contained therein can, by no stretch of imagination, bind the fixation of qualification by the Government to a newly formed University in the year 2014.
8.Having considered the contentions advanced on either side, I am of the opinion that the issue now raised by the petitioners is one falling within the ambit of a policy decision in the matter of prescription of qualifications to a particular post or class of W.P.(C).Nos.33397& 33919/16 8 posts. The Kerala Veterinary and Animal Sciences University was formed for the first time by the Kerala Veterinary and Animal Sciences University Act, 2010. Going by the provisions of the Statute, the Government was empowered to frame the First Statues in matters which are necessary for the formation and functioning of the University. Such First Statues were framed in 2014. There is no challenge in these writ petitions as against the competency or the jurisdiction of the Government for framing the First Statutes. The petitioners are necessarily challenging the fixation of the qualification of pass in 8th standard as the minimum qualification for appointment to Class IV posts under the University. It is to be noticed that the petitioners are persons who had entered service as casual labourers in the Kerala Agricultural University. They contend that they are literate but have only formal education up to the elementary level. They would have had no claim for appointment to Class IV posts in the Agricultural University also since they did not possess the qualifications prescribed in that University for appointment to Class IV posts. W.P.(C).Nos.33397& 33919/16 9
9.It is trite law that the prescription of a qualification for appointment to a post is within the ambit of the powers of the employer or the authority empowered to frame regulations regarding qualifications for the post. Unless instances of discrimination are clearly made out, constitutional courts would not be justified in going into the reasons which informed an authority to have fixed a particular qualification for appointment as against a post. The realities of the situation and the practical necessities of qualifications necessary to carry out duties attached to a post are matters to be taken into account by the rule framers while prescribing qualifications. It is not for this Court to decide whether the prescribed qualifications are actually necessary for carrying out of the duties attached to various posts under Class IV services of the University. It is also well settled that educational qualifications can form the basis of classification, if they have a reasonable nexus to the object sought to be achieved by the Regulation. In the instant cases, according to me, what is in W.P.(C).Nos.33397& 33919/16 10 dispute is not a classification at all and the question is only with regard to fixation of a qualification for Class IV posts. I find nothing arbitrary or discriminatory in the fixation of qualification of 8th Standard for manning Class IV posts in the 1st respondent University. The challenge raised in these writ petition fails and the writ petitions are accordingly dismissed.
Sd/-
Anu Sivaraman, Judge sj