Judgment:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE TUESDAY, THE 18TH DAY OF JUNE 2013 28TH JYAISHTA 193 WP(C).No. 12920 of 2010 (L) ---------------------------- PETITIONERS/1: -------------- 1. NAVAMANI.P,W/O.MOHANDAS,AGED 4 YEARS, PAROLILE HOUSE, POST KOLAKATTUCHALIL, CHELEMBRA MALAPPURAM-673 634.
2. SAUDAMINI.V,W/O.SADANANDAN, AGED 4 YEARS, VAZHIPOKKIL HOUSE, KUNNAMANGALAM KURIKATHOOR, KOZHIKODE. BY ADV. SRI.K.A.SALIL NARAYANAN RESPONDENTS: ------------ UNIVERSITY OF CALICUT, CALICUT UNIVERSITY.P.O, MALAPPURAM-673 635 REP.BY ITS REGISTRAR. BY ADV. SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY. BY ADV. SRI.SANTHOSH MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.6.2013 ALONG WITH WPC. 14654/2010 AND CONNECTED CASES, THE COURT ON 18-06-2013 DELIVERED THE FOLLOWING: vk WP(C).No. 12920 of 2010 (L) ---------------------------- APPENDIX -------- PETITIONER'S EXHIBITS ---------------------- EXT.P1. COPY OF NOTIFICATION NO.AD/E3/2592/04 (VOLUME II) DATED 22 11.2007. EXT.P2. COPY OF THE EXPERIENCE CERTIFICATE ISSUED TO THE 1ST PETITIONER. EXT.P3. COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE UNIVERSITY TO the SECOND PETITIONER. EXT.P4. NOTIFICATION NO.AD.E3/250/08 DATED 17 6.08. EXT.P5. REJECTION MEMO ISSUED TO THE 2ND PETITIONER DATED 13 11.2009 EXT.P6. MEMO DATED 30 1.2010 ALONG WITH THE FORMAT OF UNDERTAKING. EXT.P7. MEMO OF RT/250/L.D. TYPIST(II) DATED 31 3.10 INFORMING CONCELLATION OF CONDIDATURE. EXT.P8. COPY OF THE ACKNOWLEDGEMENT SUBMITTED BY THE 2ND PETITIONER. EXT.P9.COPY OF THE RANK LIST FOR L.D. TYPIST PUBLISHED BY THE RESPONDENT ON 17.7.2010. EXT.P10. COPY OF THE NEWS ITEM THAT APPEATRED IN THE LOCAL DAILY REGARDING THE MISSING OF APPLICATIONS FROM THE UNIVERSITY. EXT.P11. COPY OF THE NOTIFICATION WHICH APPEARED IN THE NOTICE BOARD OF THE UNIVERSITY. RESPONDENT'S EXHIBIT -------------------- EXT.R1.(C). COPY OF ORDER NO.AD.A2/17064/2008 DATED 24 2.2011 ISSUED BY THE 1ST RESPO0NDENT. EXT.R1(D). COPY OF the RELEVANT PAGES OF THE REGISTER / TRUE COPY / P.A. TO JUDGE VK A.M.SHAFFIQUE, J * * * * * * * * * * * * * W.P.C.No.12920 of 2010, 14654 of 2010, 25460 of 2010, 21329 of 2011,1889 of 2012 and 4233 of 2012 ---------------------------------------- Dated this the 18th day of June 2013 JUDGMENT
In W.P.(C) No. 25460 of 2010, the petitioners challenge the rank list prepared by the University of Calicut, in respect of a selection made pursuant to a notification published as Ext.P1, inviting applications to the post of L.D.Typists. The other writ petitions relates to claims with reference to the very same notification and rank list and hence decided by a common judgment.
2. By Ext.P1 the University invited applications from qualified candidates for the appointment to the post of L.D.Typists. The selection was done in terms of written test, practical test and interview. The petitioners also applied and participated in the exams but their names did not find a place in the rank list. As per the procedure followed 40 W.P.C..No.12920 of 2010 & conn.cases 2 marks each were allotted to written test and practical test and 20 marks for the interview. Ext.P6 is the provisional rank list prepared by the University after completing the aforesaid selection process.
3. Two contentions are raised by the petitioners. One is that the University normally followed certain guidelines of the year 1981 by which the rank list was prepared on the basis of written test and practical test for which the maximum marks was 100. Marks were given for interview from 25. Suitable number of candidates as decided by the selection committee is to be called for interview based on the marks of the written test/practical test. It is the contention of the petitioner that contrary to the said guidelines of the year 1981 without any change in the rules a different procedure is adopted by reducing the total marks inclusive of interview to 100.
4. The second contention is based on the shortlisting of the candidates. According to the petitioners, while W.P.C..No.12920 of 2010 & conn.cases 3 preparing the rank list University has included only those persons who had a minimum of 20 marks in the written test This according to the petitioners is not a procedure that was adopted earlier and was not made known to any of the candidates and has come by way of a surprise. On the basis of the explanation given by the University the learned counsel for the petitioner submits that the proceeding of the Vice Chancellor indicates that he had made modification to the earlier procedure and had prescribed a new procedure after the notification of the vacancies.
5. W.P.C.No.21329 of 2011 is filed by another candidate challenging the rank list inter alia contending that the procedure adopted for conducting the test was illegal and arbitrary. The petitioner contends that the procedure of preparing a provisional rank list before conducting the interview is bad in law. Petitioner therefore seeks for canceling the rank list and for preparing a fresh rank list. W.P.C..No.12920 of 2010 & conn.case”
6. W.P.C.No.4233 of 2012 is filed by a candidate who supports the aforesaid rank list and contends that there are 148 vacancies to the posts of L.D.Typists in the University and after filling up of various posts there are six vacancies. The rank list will expire on 30/06/2013 and if the University makes appointments to the existing vacancies the petitioner will also be benefited and therefore seeks for a direction to the University to fill up the post of L.D.Typists in the University.
7. W.P.(C) No. 1889 of 2012 is filed by a candidate who got selection to the post of L.D.Typist. While joining she sought for leave for higher studies which was permitted by the University. She came back and sought for joining which was not permitted by the University. During the pendency of the writ petition as directed by this Court by way of an interim order dated 10/02/2012, the petitioner has joined for duty in the University and therefore now seeks consequential benefits including salary as if she joined duty W.P.C..No.12920 of 2010 & conn.cases 5 on 28/11/2011.
8. W.P.(C) No.12920 of 2010 is filed by a candidate who seeks age relaxation in terms of Ext.P4 notification dated 17/6/2008. As per the notification the age of the candidate as on 01/01/2008 should not be more than 35 years. As per Clause 2 of the notification it was indicated that persons who have already submitted valid applications in response to notification dated 30/5/1992 can apply for the post and they will be given age relaxation upto 50 years as on 01/01/2007. According to the petitioner though she was appointed on daily wages and had applied for the post the University rejected the request of the petitioner stating that she was over aged. It is stated that the petitioner has not produced proof for submitting the application 18 years back. Petitioner relies upon the fact that she was selected and appointed on temporary basis, only since she satisfied the conditions stipulated as per Clause (a) of Ext.P1 and hence challenges Ext.P7 by which her appointment was cancelled. W.P.C..No.12920 of 2010 & conn.cases 6 The petitioner in W.P.C.No.14654 of 2010 also seeks identical reliefs on same set of facts.
9. University has filed a counter affidavit in W.P.(C) 29546/2010 and additional affidavit/statements had been filed on behalf of the University. The party respondents have also filed counter affidavits. The party respondents as well as the University maintains the stand that the selection process is conducted in accordance with the procedure prescribed and when the very same selection process was challenged by certain persons the matter came to be considered by a Division Bench of this Court in Writ Appeal No.1336 of 2010 by judgment dated 11/8/2010 this Court held as under: "Heard the counsel for the appellants and standing counsel for the University. Appellants participated in the selection process for appointment as Typists in the Calicut University. The University conducted a preliminary written test in General Knowledge, proficiency in English and W.P.C..No.12920 of 2010 & conn.cases 7 Regional Language for screening the candidates wherein appellants did not achieve the relative merits for calling them for proficiency test in typing and computer handling. The case of the appellants is that along with written test, they should have been subjected to a test in typewriting and computer operations. Standing counsel for the University submitted that only those who were qualified in the screening test will be called for the next test, that is, proficiency in typing as well as computer operations. The contention of the appellants is that Ext.P1 does not approve the scheme adopted by the University. The learned Single Judge found against the appellants' claim and hence this appeal.
2. After hearing both sides and after considering Ext.P1, we do not think there is anything wrong in the procedure adopted by the University in initially screening the candidates, both in general knowledge and proficiency in language. Only those who were qualified in the preliminary test need be W.P.C..No.12920 of 2010 & conn.cases 8 called for the next test, that is practical test in typing and computer operations. We do not know how the scheme adopted by the university goes against Ext.P1 scheme, which provides for both practical test as well as general knowledge test before calling for interview. There is nothing wrong in conducting both the examinations simultaneously and the decision taken by the University to screen the candidates through a written test in the beginning is the more appropriate one because, those who fail in the screening test need not be subjected to practical test in typewriting unnecessarily. We do not find any merit in this appeal. It is accordingly dismissed." 10. Therefore, the contention of the respondents is that when the selection process with reference to the very same notification had been approved by this Court as per the above judgment there is no reason for taking a different view on the basis of the contentions now urged by the petitioners. W.P.C..No.12920 of 2010 & conn.case”
11. On a perusal of the aforesaid judgment, it is clear that the petitioners in those cases were challenging the very same notification and rank list. No doubt, the petitioner in W.P.C.No.25460 of 2010 refers to the guidelines of the year 1981. But no such material is produced. That apart nothing prevents the University or the Vice Chancellor as the case may be to adopt a procedure for selection of the candidates to the post of L.D.Typists in the absence of any specific rule in that behalf. The petitioner has participated in the selection process without challenging the same. True that he was not aware of the manner in which the selection was being conducted. But every candidate aspiring for the post is well aware of the normal procedure of participating in written examinations, practical examinations and interview. Therefore when such process is admittedly adopted, it is not open for the candidates to question the right of the University in that regard. In relation to the contention that instead of 125 marks 100 marks is specified in the above W.P.C..No.12920 of 2010 & conn.cases 10 test is also unsustainable. The candidates who are participating in the examination cannot contend that the examination has to be held in a particular fashion. Therefore fixing the maximum marks at 100 can never be a reason for a challenge to the above rank list.
12. Then the next question is as to whether publication of the rank list by giving a cut off mark for the written examination at 20 is valid. The petitioners could not in a position to demonstrate as to how he was prejudiced by the University adopting such a procedure. It is seen from Ext.P6, the provisional rank list that by adopting the procedure of cut off marks, 882 persons were shortlisted, in addition to the supplementary list candidates. Admittedly only 124 vacancies were filled up. Therefore I do not think that such a short listing has prejudiced the petitioners in any manner. That apart they are included in the supplementary list available for reserved candidates. Therefore even if he had obtained less than 20 marks in the written test if there W.P.C..No.12920 of 2010 & conn.cases 11 is an opportunity for appointment petitioners, as well would get it. The petitioners could not demonstrate as to how he is deprived of an opportunity.
13. Another important factor which is required to be dealt with in the above writ petition is regarding an additional affidavit filed by the University wherein the University had taken a contention that there were only 31 vacancies to the post of L.D.Typists and 124 persons were appointed to the said vacancy by filling up the vacancy of L.D.Typists, U.D.Typists , Sr. Gr. Typists, Sel. Gr. Typists. Though they had supported the said action initially, the Syndicate in its meeting held on 22/11/2011 decided to conduct an enquiry into the matter. According to them, while issuing a notification for the selection of candidates for the post of L.D.Typists there were only 31 posts of L.D.Typists and there was no reason for the University for having appointed 124 persons from the same list. Therefore, the University has requested the Secretary to Government, W.P.C..No.12920 of 2010 & conn.cases 12 Higher Education Department to take follow up action.
14. On the other hand it is pointed out by the party respondents that the post notified was that of L.D.Typists which is a Typist post. When appointments were made to different categories of Typists, the Comptroller and Auditor General raised a query regarding the same and sought for an explanation as to how 124 vacancies of Typists could be filled up pursuant to the said notification. This was answered by the University by stating that the entire 124 posts related to Typists' vacancies and those were sanctioned posts. The difference between L.D.Typists and other posts is only on account of grade promotion and therefore the University was justified in making such appointments. The contention of the party respondents is that the Comptroller and Auditor General is satisfied with the explanation and hence the query was not pursued further. In the light of the aforesaid documents it is contended that this question does not arise for consideration at all as W.P.C..No.12920 of 2010 & conn.cases 13 several persons were already appointed and the select list of such persons is not being challenged on the ground that the University did not have the requisite power to appoint such persons. In that view for the matter, I do not intend to express an opinion as to whether the appointments so made by the University suffers from illegality on the ground that several persons over and above the established vacancies were appointed. It is for the University to rely upon the Vigilance enquiry if any and take further action. But as matters stand now as the appointments are made on the basis that those are valid appointments and the rank list is challenged on different grounds, I have to proceed on the basis that the appointments are validly made.
15. Apparently the notification did not mention the number of vacancies and all the persons were posted in the capacity of L.D.Typist and they were since been promoted to various posts depending upon the available vacancy in the same cadre. W.P.C..No.12920 of 2010 & conn.case”
16. Coming to the contentions urged in various writ petitions, as there are some difference in the factual aspects I am separately considering the same.
17. In regard to W.P.C.No.25460 of 2010, as I have already held that the two contentions urged by the petitioners are not sustainable under law, the said writ petition is liable to be dismissed.
18. In W.P.C.No.21329 of 2011, all the affected parties in the rank list have not been impleaded. Only a few persons are impleaded in a representative capacity. When the rank list is prepared and appointments are made which are not inumerable the affected parties are necessary parties. Since they are not impleaded, the writ petition fails for non-joinder of necessary parties and is liable to be dismissed on that ground itself.
19. In W.P.C.No.4233 of 2012, the question is whether the rank list is till in force. Admittedly the rank list is in force upto 30/06/2013. According to the petitioner there are W.P.C..No.12920 of 2010 & conn.cases 15 vacancies in the post of L.D.Typists. If there are vacancies, definitely the petitioner is entitled to get appointment in terms of the rank list prepared by the University. Hence I am of the view that a direction can be issued to the University to fill up the posts in the available vacancies on the basis of the rank list. However their appointments shall be subject to the outcome of the Vigilance Enquiry.
20. In W.P.C.No.1889 of 2012, the claim is for getting appointment after the leave period is over. By virtue of an interim order passed by this Court, the petitioner was already appointed. Though the petitioner has claimed various benefits from November 2011, I do not think that the petitioner will be entitled to any monetary benefits for the said period. The petitioner's appointment shall be treated as effective from the date on which she had approached the University for rejoining the service and her service shall be taken into consideration from the date on which she offered to join service. But she will not be entitled for any monetary W.P.C..No.12920 of 2010 & conn.cases 16 benefits for the period during which she was not in service. The said period shall be computed for the purpose of seniority.
21. In W.P.C.No.12920 of 2010, the petitioners claim age relaxation as stated in the notification. Age relaxation is given to candidates who had submitted valid applications as per notification dated 13/11/1992. The petitioners were provisionally permitted to appear in the written test on undertaking to produce the valid proof for having submitted applications pursuant to notification dated 13/11/1992. According to the petitioners, they are unable to trace out any evidence due to lapse of time. According to the petitioners, one of them was selected and working as Typist based on notification dated 22/11/2007 only due to the fact that she had submitted valid application as per notification dated 13/11/1992. Hence the contention is that in so far as she was permitted to work on temporary basis in terms of Ext.P1 notification dated 22/11/2007 no further proof is W.P.C..No.12920 of 2010 & conn.cases 17 required. Ext.P1 is a notification inviting applications for temporary appointment and persons who had applied to the post of L.D.Typists as per notification dated 13/11/1992 were permitted to apply. Therefore when the temporary appointments were made in terms of Ext.P1 the petitioner was also given temporary appointment and she had worked in the University for about a year as evident from Ext.P2 experience certificate and she is appointed as a temporary worker and she was selected from among the candidates who had submitted application as per a notification dated 13/11/1992, according to her, she is entitled for being considered for the post. But, on a perusal of Ext.P1 it contains different categories and one of which includes applicants who had submitted their application on 13/11/1992. It is not known under what capacity the petitioner had obtained the temporary engagement. At any rate, if there is no material to show that she had submitted an application as per notification dated 13/11/1992 it may W.P.C..No.12920 of 2010 & conn.cases 18 not be possible for this Court to direct the University to consider her application. In the result, this writ petition is only to be dismissed.
22. W.P.C.No.14654 of 2010 is filed on similar set of facts as stated in W.P.C.No.12920 of 2010 and hence deserves to be dismissed. In the result: (i) W.P.C.No. 25460 of 2010, W.P.C.No.21329 of 2011, W.P.C.No.12920 of 2010 and W.P.C.No.14654 of 2010 are dismissed. (ii) In W.P.C.No.4233 of 2012, the University is directed to fill up the posts of L.D.Typists in the available vacancies on the basis of the rank list before its expiry. Such appointments shall be subject to the result of the pending Vigilance enquiry. (iii) In W.P.C.No.1889 of 2012, the petitioner's appointment shall be treated as effective from the date on which she had offered to join service. She will not be entitled W.P.C..No.12920 of 2010 & conn.cases 19 for any monetary benefits for the period during which she has not worked. The said period shall be computed for the purpose of seniority alone. (A.M.SHAFFIQUE, JUDGE) jsr W.P.C..No.12920 of 2010 & conn.cases 20 W.P.C..No.12920 of 2010 & conn.cases 21