(1.)INTERPRETATION of the provisions contained in Statute 68 in Chapter 45 of the Mahatma Gandhi University First Statutes 1991 is the issue, arising in this original petition. The M. G. University First Statutes 1991 was issued on 8-2-1991 by the Government of Kerala in exercise of its powers conferred by sub-section (1) of S. 100 of the Mahatma Gandhi University act 1985 (12 of 1985 ). S. 100 reads as follows: - "100. First Statutes and Ordinances: - (1)Notwithstanding anything contained in this Act, the first Statutes and the first Ordinances of the University shall be made by' Government in consultation with the University Grants Commission, within a period of one year from the date of commencement of the Mahatma Gandhi University (Amendment) Act, 1988. (2) Every first Statute and every first Ordinance made under this section shall be laid " as soon as it is made before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and before the expiry of the session in which it is so laid or the session immediately following, the Legislative assembly makes any modification in the first Statute or the first Ordinance, as the case may be or decides that the first Statute or as the case may be, the first Ordinance should not be made, the first Statute or the first Ordinance, as the case may be shall thereupon have effect only in such modified form or be of no effect, as the case may be; so however that no such modification or annulment shall be without prejudice to the validity of anything previously done under the first Statute or the first Ordinance. " Section 67 of the Act provides that method of appointment, pay and other conditions of service of the non-teaching staff of private colleges shall be such as may be prescribed by the Statutes. Chapter 45 of the Mahatma Gandhi University First Statutes 1991 contains the provisions regarding conditions of service of members of non-teaching staff in private colleges. Statute 43 under Chapter 45 lays down the qualification for appointment to the post of various categories of non-teaching staff in private colleges. In respect of appointment to the post of L. D. Typist, following are the qualifications prescribed: - "s. S. L. C. with Typewriting (lower) provided that the non-clerical staff (Attenders, Peons) etc. excluding the technical staff like laboratory Staff and Library Staff of the Private Arts, Science and Training colleges who are fully qualified and who are in regular permanent service or have put in three years of continuous service after the commencement of these statutes shall be promoted as Lower Division Typists against future vacancies arising in private Arts, Science and Training Colleges. "
(2.)THE petitioner was appointed as a Peon in the college of the 4th respondent in the year 1971 and he was later promoted as Laboratory attender. It is contended by the petitioner that he is fully qualified to be promoted to the post of L. D. Typist in accordance with.-the qualifications prescribed under Statute 43. Even though he was originally considered for promotion, the petitioner alleges that later the proposal was dropped in the light of the directions given by the 1st respondent under Ext. P2. By Ext. P 1 order dated 5-8-92, acquisition of Malayalam Typewriting Lower Grade certificate (KGTE) was made a compulsory qualification for appointment to the post of Typists and Confidential Assistants in Government service. It is not known whether the above Government order was followed by an amendment to the special Rules and if so, the date of coming into force of the amendment to the special Rules. In any view of the matter by Ext. P2 clarification, the government gave a direction that the amendment as contained inext. P1 would be applicable in the matter of appointment of non-teaching staff of all private colleges affiliated to the Kerala, Calicut and Mahatma Gandhi Universities. In the light of the above direction given by the 1st respondent, the petitioner became disentitled for promotion as Lower Division Typist since he had not acquired Malayalam Typewriting Lower Grade Certificate. THE 4th respondent, manager thereupon invited applications by an advertisement dated 15-3-1993 for selection of candidate to be appointed as L. D. Typist in their college. It was at this stage the petitioner approached this court challenging the direction given by the 1st respondent under Ext. P2. THE 5th respondent got himself impleaded, contending that pursuant to the invitation of applications, he had also submitted an application and according to his information he was ranked first after the interview.
Reliance is placed on Statute 68 under Ch. 45 of the mahatma Gandhi University First Statues 1991 by the learned Government Pleader appearing on behalf of the 1st respondent and also by the counsel representing respondents 4 and 5 to support the view taken in Ext. PZ. Statute 68 reads as follows: - "68. Filling up of vacancies.- Subject to the rules in force in similar Government institutions regarding qualifications and method of appointment, the vacancies in the higher grade shall be filled up by promotion from the next lower categories, if qualified persons are available according to seniority in the case of non-selection posts, and according to merit and seniority in the case of select ion posts, and if there are no candidates available for promotion to the higher grades, the posts shall be filled up by, direct recruitment by inviting applications and selection by the management in the manner laid down in this Chapter. " According to the respondents 1, 4 and 5, Statute 68 Ch. 45 creates an inbuilt provision in the First Statutes 1991 by which any amendment to the rules relating to qualification and method of appointment to similar posts in Government service would be made applicable to the non-teaching staff of affiliated private colleges. Therefore when Ext. P1 was issued amending the qualifications relating to the particular post in Government service, the amended qualification should be automatically made applicable to the above post in affiliated private colleges. The learned Govt. Pleader further submitted that si nee salary is paid by the Government, it should have control over the method of appointment and qualification in respect of the posts in the private colleges also. Therefore according to her, there is nothing improper in giving an interpretation to the provision under Statute 68 that the qualifications and method of appointment as and when changed by the Government in its service should be made applicable to the non-teaching staff of the affiliated private college.
The above would show that both sides rely on different provisions contained in the Mahatma Gandhi University First Statutes 1991 in support of their respective contentions. But, do the first statutes survive in the light of the decision of a Division Bench of this court in Nair Service society v. State and others, 1992 (2) KLT 134 =1992 (1) KLJ 765? On considering the scope of the provisions contained under sub-section (1) of S. 100, the division Bench has held that the Government cannot exercise its power to issue the first statutes and the first ordinances beyond the period of one year. After coming into force of the Act, it may take some time for the Constitution of the bodies like Senate, Syndicate etc. and it is only to avoid a stalemate during the interregnum that an enabling provision is made in S. 100 (1) by which authority is given to the Government to make first statutes in respect of matters which are to be provided for in the statutes. The period of one year provided under sub-section (1) was held as mandatory and that the power of the Government to issue first statutes conferred on them under S. 100 (1) of the Act ceased to have operation on the expiry of the period of one year from (he date of the commencement of Mahatma gandhi University Amendment Act, 1988. The Amendment Act came into force on 17-2-1988. The Division Bench therefore held that the first statutes regarding transfer of teachers in private colleges issued on 25-8-90 was without jurisdiction and therefore inoperative. Even though the learned counsel appearing on behalf of Hie petitioner herein relied on the above mentioned decision in order to contend that the Government has no power to amend the first statute by giving a direction in the nature of Ext. P2, no contention is raised either in the pleadings in this original petition or at the time of hearing that the Mahatma Gandhi University First Statutes 1991 are not at all applicable in the matter of appointment to the post of L. D. Typists in private colleges. On the other hand, arguments were addressed by both sides on the basis of the provisions contained in the above mentioned statutes.
(3.)IF it is to be taken that the provisions contained under the Mahatma Gandhi University First Statutes, 1991 are to be ignored in the light of the decision in Nair Service Society's case, the provisions contained under the Kerala University (Conditions of Service of Teachers and members of non-teaching Staff) First Statutes, 1979 shall govern appointment to the post of L. D. Typists by virtue of the provisions contained under S. 99 of the Mahatma Gandhi University Act. Sub-section (2) of S. 99 provides that all statutes and Ordinances made under the Kerala University Act, 1974 and in force on the date of the commencement of this Act shall, in so far as they are not inconsistent with the provisions of this Act continue to be in force in respect of the areas referred to in sub-section (1) until they are replaced by the statutes and Ordinances to be made under this Act. Chapter III of the Kerala University (Conditions of Service of Teachers-and Members of non-teaching Staff) First statutes, 1979 contains provisions regarding the conditions of service of members of non-teaching staff. Statutes 41 under Chapter III prescribes qualifications for appointment to different categories of non-teaching staff in private colleges including Lower Division Typists. The qualification prescribed is the same as he one prescribed under Statute 43 in Chapter 45 of (lie Mahatma gandhi University First Statutes, 1991. Statutes 66 under Chapter 111 of the kerala University Statutes contains identical provisions as those in Statutes 68 of the Mahatma Gandhi University First Statutes. Therefore the basic issue, which is the subject matter of this original petition is still relevant for consideration even if it is to be held that the Mahatma Gandhi University First statutes, 1991 is inoperative and the provisions contained in the Kerala university (Conditions of Service of Teachers and Members of non-teaching staff) First Statutes, 1979 govern the field.
It is not disputed that qualifications for appointment to different posts of non-teaching staff in the private colleges are to be prescribed by Statutes in view of the 'provisions contained under S. 67 of the mahatma Gandhi University Act. It is also not in dispute that the power of the government is only to issue the first statutes and any. amendment to the statutes can be made only by the Syndicate by virtue of the power I given to it under S. 23 of the Act. Qualifications have been thus prescribed under the first statutes. Should the provisions contained in Statute 68 of the Mahatma Gandhi university First Statutes, J991 or Statute 66 of the Kerala University First salutes, 1979 be understood to mean that any amendment which is brought in the rules regard ng qualification and method of appointment of similar posts in government service is to be automatically applied to the non-teaching staff in the private colleges affiliated to the particular University also? I am of the view that such an interpretation would militate against the provisions contained under S. 100 as it would mean that the Government retains the power to modify the statutes even after issue of the first statutes. The learned counsel for the University also, contended that Government has no power to issue Ext. P2 and he brought to my notice amendments made by the Syndicate to Statute 43 under chap. 45. Therefore the reference to 'the rules in force in similar Government institutions regarding qualifications and method of appointment' made in statute 68 or statute 66 can be taken to mean only those rules which were in force at the time of promulgation of the first statutes. It cannot mean that the amendment as and when made to the rules relating to Government service would be automatically made applicable to the non-teaching staff of the private colleges. In the light of the above interpretation which I am inclined to give to the provisions contained in statutes 68 or statutes 66,1 hold that Ext. P2 has been issued without authority of law.