Kerala High Court
Dr.Sharmila vs Sree Sankaracharya University Of ... on 23 December, 2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 22ND DAY OF FEBRUARY 2018 / 3RD PHALGUNA, 1939
WP(C).No. 6010 of 2015
PETITIONER:
DR.SHARMILA,
ASSISTANT PROFESSOR OF PHILOSOPHY,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY-683574,
ERNAKULAM DISTRICT.
BY ADVS.SRI.C.P.SUDHAKARA PRASAD (SR.)
SRI.S.RAMESH
SRI.NAVEEN.T
SMT.POOJA SURENDRAN
SRI.P.N.SANTHOSH
RESPONDENTS:
1. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY-683574,
REPRESENTED BY ITS REGISTRAR.
2. VICE CHANCELLOR,
SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,
KALADY-683574.
BY ADV. SRI.PRASANTH S., SC, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-02-2018,
ALONG WITH WPC.7774/2015 & WPC.12960/2015, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
EL
WP(C).No. 6010 of 2015 (A)
APPENDIX
PETITIONER(S)' EXHIBITS
EXT.P1 : TRUE COPY OF THE NOTIFICATION DATED 23-12-2010 ISSUED BY THE
UNIVERSITY.
EXT.P2 : TRUE COPY OF THE RANKED LIST DATED 19-7-2011 PREPARED BY THE
SELECTION COMMITTEE AFTER APPROVAL BY THE SYNDICATE.
EXT.P3 : TRUE COPY OF THE MINUTES OF THE SYNDICATE HELD ON 23-6-2012.
EXT.P4 : TRUE COPY OF THE MEMO DATED 30-6-2012 ISSUED BY THE UNIVERSITY
TO THE PETITIONER TO APPEAR FOR MEDICAL EXAMINATION.
EXT.P5 : TRUE COPY OF THE ORDER DATED 5-7-2012 ISSUED BY THE REGISTRAR
OF THE UNIVERSITY APPOINTING THE PETITIONER IN THE LONG LEAVE
VACANCY OF DR.FAISAL N.M.
EXT.P6 : TRUE COPY OF THE REVISED APPOINTMENT ORDER DATED 7-7-2012
ISSUED BY THE REGISTRAR OF THE UNIVERSITY.
EXT.P7 : TRUE COPY OF THE JOINING REPORT DATED 5-7-2012 OF THE
PETITIONER.
EXT.P8 : TRUE COPY OF THE PAY FIXATION GRANTED BY THE UNIVERSITY BY
ORDER DATED 30-7-2014.
EXT.P9 : TRUE COPY OF THE REPRESENTATION DATED 17-1-2014 SUBMITTED BY
THE PETITIONER BEFORE 2ND RESPONDENT.
EXT.P10 : TRUE COPY OF THE LETTER DATED 31-5-2013 SENT BY THE REGISTRAR
TO PUBLIC SERVICE COMMISSION.
EXT.P11 : TRUE COPY OF THE COMMUNICATION DATED 11-6-2013 ISSUED BY THE
PSC TO REGISTRAR.
EXT.P12 : TRUE COPY OF THE COMMUNICATION DATED 3-8-2013 SENT BY THE
REGISTRAR TO THE STANDING COUNSEL OF THE UNIVERSITY.
EXT.P13 : TRUE COPY OF THE COMMUNICATION DATED 26-8-2013 SENT BY THE
STANDING COUNSEL TO THE REGISTRAR OF THE UNIVERSITY.
EXT.P14 : TRUE COPY OF THE NOTIFICATION DATED 23.12.2010 PUBLISHED IN
DESHABHIMANI DAILY DATED 30.12.2010 INVITING APPLICATIONS FOR
DIFFERENT POSTS INCLUDING THE POST OF ASST. PROFESSOR IN
PHOLOSOPHY IN SREE SANKARACHARYA UNIVERSITY OF SANSKRIT
EXT.P14(A) : TRUE COPY OF THE NOTIFICATION DATED 23.12.2010 ISSUED BY THE
UNIVERSITY
EXT.P15 : TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER ON
17.3.2015 ASKING INFORMATION WITH REGARD TO THE PETITIONER'S
QUALIFICATION IN THE UGC TEST
EXT.P16 : TRUE COPY OF THE REPLY DATED 3.4.2015 GIVEN TO EXT.P15
QUESTIONNAAIRE GIVEN BY THE UGC
EXT.P17 : TRUE COPY OF THE QUESTIONNAIRE DATED 17.3.2015 SUBMITTED BY
THE PETITIONER BEFORE THE UNIVERSITY OF CALICUT SEEKING
INFORMATION WITH REGARD TGO HIS DEGREE AND POST GRADUATE
QUALIFICATION
WP(C).No. 6010 of 2015 (A)
EXT.P18 : TRUE COPY OF THE REPLY DATED 24.3.2015 GIVEN BY THE UNIVERSITY
OF CALICUT TO THE PETITIONER
EXT.P19 : TRUE COPY OF THE APPLICATION DATED 17.3.2015 SUBMITTED BY THE
PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER, SAVITHRIBAI
PHULE PUNE UNIVERSITY
EXT.P20 : TRUE COPY OF THE REPLY DATED 21.4.2015 GIVEN BY THE PUNE
UNIVERSITY
EXT.P21 : TRUE COPY OF THE APPOINTMENT ORDER DATED 21.7.2011 ISSUED TO
DR.BABU M.N.
EXT.P22 : TRUE COPY OF THE APPOINTMENT ORDER DATED 22.7.2011 ISSUED TO
SRI.SIRAJUL MUNEER C.
EXT.P23 : TRUE COPY OF THE RANKED LIST FOR APPOINTMENT TO THE POST OF
PROFESSOR OF PHOLOSOPHY DATED 3.9.2012
EXT.P24 : TRUE COPY OF THE QUESTION DATED 11.10.2017 ALONG WITH THE
INFORMATIOND ATE D16.11.2017 ISSUED BY THE UNIVERSITY UNDER
THE RIGHT TO INFORMATION ACT
EXT.P21 : TRUE COPY OF THE REPLY DATED 28.3.2015 GIVEN BY THE UNIVERSITY
OF CALICUT UNDER THE RIGHT TO INFORMATION ACT ( IN
I.A.14911/2015)
RESPONDENT(S)' EXHIBITS
EXT.R1(A) : TRUE COPY OF THE REPRESENTATION DATED 2.11.2012 SUBMITTED BY
THE WRIT PETITION BEFORE THE 2ND RESPONDENT
EXT.R1(B) : TRUE COPY OF THE REPRESENTATION DATED 17.5.2013 SUBMITTED
BEFORE THE 1ST RESPONDENT
EXT.R1(C) : TRUE COPY OF THE LETTER AUDIT ENQUIRY NO.A2-43/2014 DATED
3.12.2014 ISSUED BY THE JOINT DIRECTOR LOCAL FUND TO THE
UNIVERSITY
EXT.R1(D) : TRUE COPY OF THE LETTER NO.7889/AD.A3/2011/SSUS DATED
23.12.2014 ISSUED BY THE UNIVERSITY TO THE LOCAL FUND AUDIT
EXT.R1(E) : TRUE COPY OF THE LETTER NO.LF/SSIS/A4-438/2014 DATED 9.1.2015
ISSUED BY THE LOCAL FUND DEPARTMENT TO THE UNIVERSITY
EXT.R1(F) : TRUE COPY OF THE LETTER NO.7889/AD.A3/2011/SSUS(1) DATED
30.12.2014 SUBMITTED BY THE UNIVERSITY BEFORE THE HONOURABLE
CHANCELLOR
TRUE COPY
P.S. TO JUDGE
EL
5.3.2018
ANU SIVARAMAN, J.
--------------------------------
W.P.(C).Nos.6010, 7774 and 12960 of 2015
---------------------------------
Dated this the 22nd day of February, 2018
JUDGMENT
------------------
The issue raised in these writ petitions are with regard to the entitlement of an employee appointed from a ranked list for substantive appointment. The petitioner in W.P.(C) No. 6010 of 2015 was appointed pursuant to Ext.P1 notification issued by the University. After the selection conducted, the petitioner was included as serial No.2 in Ext.P2 ranked list. It is stated that the first rank holder in Ext.P2 ranked list was appointed on 18.7.2011. Thereafter, by Ext.P4 order, the petitioner who was also an open category candidate was appointed as Assistant Professor in Philosophy in the leave vacancy of one Dr.Faisal N.M in the pay band of Rs.15600-39100 with academic grade pay of Rs.6000/-. It is stated in the appointment order that the petitioner shall be allowed to continue for the leave period, that is, up to 26.1.2017 or till Dr.Faisal N.M rejoins duty, whichever is earlier. The order also says that in case the W.P.(C).Nos.6010, 7774 and 12960 of 2015 2 petitioner fails to report for duty, the vacancy will be filled up by the next eligible candidate.
2. It is stated that the petitioner joined duty pursuant to Ext.P4 and has been continuing as Assistant Professor in Philosophy till date. It is contended that the petitioner had raised a claim for regularization of services or the consideration of the appointment as a substantive appointment. The captioned writ petition is therefore filed seeking a declaration that the statement in Exts.P4, P5 and P6 that the appointment of the petitioner as temporarily is illegal and is liable to be deleted. A further declaration is also sought that the petitioner is entitled to appointment in the regular promotion vacancy which arose on 6.9.2012.
3. The learned counsel for the petitioner contends that the provisions of Chapter III of the Sree Sankaracharya University of Sanskrit, First Statutes 1997 prescribes the method of appointment to the post of Assistant Professor. It is stated that the petitioner was appointed after facing a due selection process and on the basis of her inclusion in Ext.P2 ranked list. It is stated that the duration of the vacancy to which the petitioner was appointed being more than three W.P.(C).Nos.6010, 7774 and 12960 of 2015 3 months, the petitioner's appointment is liable to be treated as a permanent appointment. It is stated that Statute 2 of Chapter IV provides for making temporary appointments only for a period of three months. On the strength of Ext.P12 communication issued by the Registrar of the University to the Standing Counsel of the University, the petitioner contends that it is the case of the University that the petitioner had been appointed from the ranked list, observing the principles of reservation as well. The petitioner contends that one OBC candidate and one Muslim candidate had been appointed after the appointment of the first rank holder in Ext.P2 ranked list and therefore the petitioner's appointment in the 4th turn would be well in order. The learned counsel for the petitioner places reliance on a decision of the Apex Court in State of U.P and Another v. M.J Siddiqui and Others (1980 (3) SCC 174) to contend that the circumstances leading up to the appointment have to be taken note of in considering whether the appointment is temporary or substantive in nature.
4. A counter affidavit has been filed on behalf of the respondents. It is contended that the petitioner was W.P.(C).Nos.6010, 7774 and 12960 of 2015 4 evidently appointed as against a temporary vacancy and the prayer to treat the vacancy as a substantial one is not maintainable. It is contended that the petitioner, being the 2nd open candidate in Ext.P2 ranked list would not have been entitled for appointment against the 2 nd substantive vacancy of Assistant Professor. It is stated that the Statues specifically provides for applying the principles of rotation as contained in Rule 13 to 17 of Part II, KS&SSR and therefore the appointment of the petitioner who was the 2 nd rank holder and the 2nd open category candidate in Ext.P2 ranked list would be clearly against the provisions of law. It is stated that it is only because the appointment was to a temporary leave vacancy that the petitioner had been appointed though the said appointment was made from Ext.P2 ranked list. It is contended by the respondents that Ext.P2 ranked list which was prepared only for filling up a solitary post of Assistant Professor in the open category would stand exhausted by the filling up of the said post and would not be valid for making a further appointment to any substantive vacancy. It is further submitted that Ext.P1 notification contained two parts; Part:I, a general W.P.(C).Nos.6010, 7774 and 12960 of 2015 5 notification, in which the post of Assistant Professor, Philosophy was included as serial No.09 and the number of vacancies was shown as one (open category). The notification also had a 2nd part which was with respect to No Candidate Available Vacancies. Serial No.11 of Part II had notified one post of Muslim and one OBC vacancy. It is contended that the appointments made of the Muslim and OBC candidate were in respect of the NCA notification and that the petitioner's appointment is therefore as the 2 nd open category appointment from Ext.P2 ranked list.
5. W.P.(C) No.12960 of 2015 is filed seeking payment of increments to the petitioner. It is stated that after the appointment of the petitioner in the scale of pay, increments had been granted to her but an audit objection had been raised relying on the amendment to Rule 9 of Part II KS & SSR and the increments due had been withheld and recalled. It is contended that since the petitioner was appointed in a scale of pay and has been continuing since 7.7.2012, she would be entitled to payment of allowances, even it is considered that the appointment was to a temporary vacancy. The learned counsel places reliance on W.P.(C).Nos.6010, 7774 and 12960 of 2015 6 a decision of the Apex court in State of Rajasthan v. Surendra Mohnot (2014 (4) KLT Suppl. 54 (SC)). The learned counsel appearing for the respondent on the other hand reliance on a decision of the Full bench of this Court in State of Kerala v. Ponnamma (2005(4) KLT 987).
6. W.P.(C) No.7774 of 2015 is filed, seeking directions not to approve the appointment of the 3 rd respondent therein, who is the petitioner in other two writ petitions. There is a further prayer for a direction to the respondents to issue a fresh notification for selection in appointment for the post of Assistant Professor in Philosophy in the University as also to declare that the 3 rd respondent's appointment is purely on a temporary basis and a leave vacancy and that she is not entitled to regularization. The petitioners in the said writ petition claimed to be applicants for the post of Assistant Professor in Philosophy pursuant to Ext.P1 notification. They contend that since only one open category vacancy was notified, the list would loose its validity, after the first appointment of the first rank holder is made and any further vacancies could be filled up only after a fresh process of selection.
W.P.(C).Nos.6010, 7774 and 12960 of 2015 7
7. A counter affidavit has been filed in the said writ petition by the respondents 1 and 2 contending that the leave vacancy, which arose during the period of one year from the publication of Ext.P2 ranked list had been filled up from the list and treating the appointment as a temporary appointment. The 3rd respondent was also filed a counter affidavit contending that the vacancy to which the 3 rd respondent was appointed was a long leave vacancy which arose on 27.1.2012 and that the petitioner is still continuing in the said vacancy.
8. I have considered the contentions advanced. It is clear that the petitioner in W.P.(C) No.6010 of 2015 had been appointed in a leave vacancy on a temporary basis by Ext.P4 appointment order. The petitioner has raised a contention that after the appointment of the first rank holder from Ext.P2 list on 18.7.2011, one OBC candidate and one Muslim candidate had been appointed and the petitioner's appointment against the 4th turn is therefore, perfectly in order. It is contended by the learned Standing Counsel appearing for the respondents, on the strength of Ext.P1 that the said two appointments, that is; of the OBC candidate and W.P.(C).Nos.6010, 7774 and 12960 of 2015 8 the Muslim candidate, was in pursuance to the NCA notification which also forms part of Ext.P1. Ext.P2 would clearly show that the names of the persons allegedly appointed in the Muslim and OBC turns do not find a place in Ext.P2 ranked list. The petitioner's is the 2 nd name in Ext.P2. It is therefore clear that the contention raised by the University to the effect that since what was being filled up was a temporary vacancy, University had only made the appointment on provisional basis from Ext.P2 ranked list seems to be well founded. The petitioner, who was the 2 nd open category candidate from Ext.P2 ranked list and who has been appointed without applying the principles of reservation cannot therefore seek a declaration to the effect that the appointment is made against a substantive vacancy. The petitioner would therefore be bound by the conditions of the appointment order. In the above view of the matter, the W.P.(C) No.6010 of 2015 fails and is accordingly dismissed.
9. As far as the prayer of the writ petition No.12960 of 2015 is concerned, since the petitioner was appointed in a scale of pay and the provisions of Rule 9 of Part II of KS&SSR having not been made specifically applicable to W.P.(C).Nos.6010, 7774 and 12960 of 2015 9 temporary appointments in the University and since the first Statues provide for such temporary appointments, I am of the opinion that the contention raised by the University and the ground raised in the audit objection that increments are not payable cannot be sustained. This is more so in view of the fact that the petitioner has been continuing for more than 5 years in service. The audit objection is therefore set aside. There will be a direction to the respondents to pay increments due to the petitioner for the period she remained in service.
10. In W.P.(C) No.7774/2015, the contention of the petitioners is that the 3rd respondent ought not have been appointed from Ext.P2 ranked list without following the principles of reservation. Since the university has filed a counter affidavit specifically contenting that the appointment was only made as a temporary measure and in a leave vacancy and since the claim of the petitioner for declaration that the appointment was regular in nature has been dismissed, I am of the opinion that no further orders need to be issued in this writ petition. In view of the fact that the appointment of the 3rd respondent is treated as purely W.P.(C).Nos.6010, 7774 and 12960 of 2015 10 temporary appointment in a leave vacancy, I am of the opinion that the petitioners' in W.P.(C) No.7774/2015 do not have any sustainable right to challenge the said appointment. The writ petition is dismissed.
Sd/-
ANU SIVARAMAN JUDGE sab