IMPORTANT POINT
The court ruled that the government cannot prescribe qualifications for recruitment that contravene existing statutory provisions, emphasizing the supremacy of legislative authority over executive orders.

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. 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 irr