Kerala High Court
Hashim E vs The Universioty Of Kerala on 3 December, 2009
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 18170 of 2002(K)
1. HASHIM E., TECHNICAL ASSISTANT,
... Petitioner
Vs
1. THE UNIVERSIOTY OF KERALA,REPRESENTED
... Respondent
2. THE REGISTRAR,
3. MINI DEVI B., TECHNICAL ASSISTANT,
4. SMITHA M.R., TECHNICAL ASSISTANT,
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :SRI.M.K.CHANDRAMOHAN DAS,SC,KERALA UTY.
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :03/12/2009
O R D E R
CR
P.R. RAMACHANDRA MENON, J.
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O.P. No. 18170 of 2002
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Dated, this the 3rd day of December, 2009
J U D G M E N T
Inter-se seniority between the petitioner and the respondents 3 and 4 in the post of Library Assistant under the first respondent University is the dispute involved in this Writ Petition.
2. Pursuant to the applications invited by the University for direct recruitment to the post of Library Assistant, the petitioner as well as the respondents 3 and 4 appeared for the written test held on 30.12.1995, followed by the interview on 05.08.1996 and on coming out successful in the process of selection, they were included in the rank list which came into force from 23.08.1996. Pursuant to the orders of appointment issued, the petitioner joined the service as 'Library Assistant' on 05.10.1996, while the 3rd and 4th respondents joined on 03.10.1996 and 30.09.1996 respectively.
3. Respondents 3 and 4 who were stated as having a better claim of seniority over the petitioner, apprehending the steps of the University to promote the petitioner to the next higher grade of Technical Assistant, approached this Court by filing OP 28762/1999 praying to promote them in preference to the petitioner. During the pendency of OP No.18170 of 2002 2 said Original Petition, the respondent University published Ext.P4 provisional seniority list placing the petitioner and the respondents 3 and 4 at serial Nos. 4, 5 and 6 respectively. Based on the position in the said seniority list, the petitioner was promoted to the post of 'Technical Assistant' on a provisional basis, as borne by Ext.P5. In the said circumstance, the petitioners in OP 28762/1999 caused to amend the OP, also seeking for appropriate reliefs, contending that the original appointment given to the petitioner was against the wrong slot and that the respondent University had violated the rules of reservation embodied under rules 14 to 17 of KS & SSR.
4. Incidentally, it is to be noted that there was an earlier rank list in respect of the post of Library Assistant which came into effect on 14.08.1991 and was in existence for 3 years as borne by Ext.P2. The above rank list was subsequently replaced by Ext.P3 rank list (wherein the petitioner and respondents 3 and 4 were included) that came into force from 23.08.1996. While effecting appointment from Ext.P2 rank list, following the roster and rules of reservation, the 30th vacancy belonged to Muslim community and since nobody was stated as available, it was given to an Ezhava candidate, who did not join duty. The 31st vacancy was filled up by 'open candidate' and by this time, Ext.P2 rank list expired.
OP No.18170 of 2002 3
5. When the new rank list (Ext.P3) came into force from 23.08.1996, according to the respondents 3 and 4, the rules of rotation were wrongly applied, whereby the petitioner herein was stated as given an 'undue advantage', causing him to be placed over and above the respondents 3 and 4; which position came to the notice of the said parties only much later, when steps were being initiated to promote the petitioner herein to the post of 'Technical Assistant'. It was at this point of time, that they filed OP 28762/1999 and the apprehension expressed by the petitioners therein came to be true when Ext.P4 provisional seniority list was published during the pendency of the said Original Petition, followed Ext.P5 provisional promotion given to the petitioner herein. The petitioners in OP 28762/1999 set up a case that the respondent University was bound to follow the rules of reservation/rotation as explained in Pradeep Vs. Josph Zachariyas [2001 (3) KLT 765]. After hearing the parties, OP 28762/1999 was disposed of as per Ext.P6 judgment holding that the University was bound by the principles laid down in Pradeep Vs. Josph Zachariyas [2001 (3) KLT 765]; thus directing the University to reconsider the seniority dispute and to finalise the same following the dictum therein.
6. Pursuant to Ext.P6 verdict, the University considered the matter in detail and on carrying out a complete over hauling operation, it OP No.18170 of 2002 4 was found that the rules of rotation happened to be infringed earlier and that the petitioner herein was eligible to be placed only after the respondents 3 and 4 (petitioners in OP 28762/1999). Accordingly the seniority was refixed placing the respondents 3 and 4 and petitioner herein at serial Nos. 4, 5 and 6 respectively, based on the respective turn of appointments at the 32nd, 34th and 35th slots. The dispute was thus finalized as directed in Ext.P6 judgment by passing Ext.P7 order; correctness of which is now subjected to challenge by the petitioner.
7. Detailed counter affidavit has been filed by the respondents 1 and 2 sustaining the action pursued by the University in passing Ext.P7. Separate counter affidavit has been filed by the 3rd respondent as well. Learned counsel for the petitioner submits that the entire issue depends upon the chance and eligibility of a Latin Catholic candidate (who had lost the chance while giving way to a Muslim candidate to be accommodated against the 22nd slot) to be appointed against the 30th slot, which actually belongs to Muslim community, by applying the note under Rule 15 (c) of Part II of KS & SSR. Since the reservation is intended to a 'community' and not to any individual and further since the respondents 3 and 4 did not belong to the Latin Catholic community (but for belonging to Viswakarma and Ezhava respectively), it is contended that they have no 'locus standi' to challenge the proceedings and as OP No.18170 of 2002 5 such, Ext.P7 order passed by the University is not correct or sustainable. It is also pointed out that, though the appointment was effected in 1996, the respondents 3 and 4 were actually sleeping over the issue and hence that the settled seniority cannot be unsettled at this distance of time.
8. Learned counsel for the respondents 3 and 4 submits that there is no callous inaction or deliberate negligence on the part of the said respondents, in so far as they approached this Court immediately on coming to know about the discrepancy by filing OP 28762/1999 in the year 1999 itself. It is also pointed out with reference to Ext.R3(a) and R3
(b) appointment orders issued to the respondents 3 and 4 that such orders of appointment were distinct and separate and hence they were not in a position to ascertain the relative seniority position, which was noted only when steps were reportedly taken by the University to promote the petitioner as 'Technical Assistant' and then they rushed to this Court by filing the above Original Petition. It is also pointed out that the provisional seniority list was published only during the pendency of the above OP; that even going by the rules, the aggrieved party could file objections to the provisional seniority list within six months and hence that the challenge was never belated; which appears to be correct and sustainable.
9. With regard to the question of 'locus standi' in initiating the OP No.18170 of 2002 6 proceedings by the respondents 3 and 4, there cannot be any doubt that anybody aggrieved of the provisional seniority list, is very much entitled to challenge the same by filing objections and get it corrected in the final seniority list. The 'person aggrieved' cannot be confined to the person belonging to the particular community who has a claim against a particular slot, since the course of appointment following the rules of reservation constitutes a chain of actions adhering to the rules of rotation as well. The persons belonging to other communities, who are entitled to have the benefit of the rules for fixing the relative rights and liabilities, can very well be stated as aggrieved, when the rules of reservation/rotation are applied in a wrong manner. That apart, the question of 'locus standi' was never mooted before this Court earlier, while passing Ext.P6 verdict in OP 28762/1999. It does not find a place in any of the grounds raised in the present Writ Petition as well and it is put forth for the first time, only during the course of hearing. As such, the challenge raised in this regard is quite wrong and misconceived.
10. With regard to the merits involved, it is to be noted that the appointment from Ext.P3 (new list) was made from the turn '32' (upto turn 31 already appointed from the old list - Ext.P2). Observing that the 30th slot belonging to the Muslim candidate (which was passed over earlier) was also to be filled up, one Ibrahim (rank No. 12) was appointed to the OP No.18170 of 2002 7 said slot, from Ext.P3 list. But since the first Muslim candidate in the rank list was none other than the petitioner, he being eligible for appointment in the 'open quota', he was advised against the turn '35'. Since these two candidates belonged to the same community, the inter-se seniority of these candidates was inter changed for the purpose of seniority as per the proviso to Rule 14(C) (ii), read with Rule 27 of the KS and SSR; which in turn led to placement of the petitioner over and above the respondents 3 and 4 who were advised for appointment against the 'Viswakarma' and 'Ezhava' slots coming subsequently in the order of hierarchy.
11. Earlier, the rotation turn 22 which actually belonged to Latin Catholic candidate was filled up by recruiting a Muslim candidate from the earlier/Ext.P2 list. Hence this NCA adjustment was effected while advising 10 candidates (including the petitioner and the respondents 3 and 4) on 24.09.1996 from Ext.P3 list by appointing one Smt.Sherley B. (Latin Catholic - rank No. 33) against the Muslim turn No. 36. Simultaneously turn No. 32, which originally belonged to the Scheduled Caste community, was filled up by appointing the 3rd respondent (Viswakarma - rank No. 20) in compensation of the lost turn No. '20', which actually belonged to 'Viswakarma', but passed over to a Scheduled Caste candidate, since no Viswakarma candidate was available for OP No.18170 of 2002 8 appointment against that turn, in Ext.P2 list. The candidate at rank No. 1 in Ext.P3 list was appointed against the 33rd turn belonging to open candidate and the 4th respondent was advised for appointment against the 34th turn for Ezhava. The stipulation under Rule 15(C) as explained by this Court in Pradeep Vs. Joseph Zachariyas [2001 (3) KLT 765] clearly provides that a community which lost the benefit shall be accommodated at the earliest point of time, to be accommodated first, when the turn of the community which was accommodated in that vacancy arises. This being the position, the revised turn of appointment of the 'Library Assistant' from Ext.P3 rank list, particularly when Smt. Shirley and Mr.Ibrahim Khaleel were not in University service, is stated as follows:-
"1. Turn No. 30 - Muslim MS. Shirely B. - Rank No.33 L.C. (in compensation of 22nd LC passed over to Muslim in the 1991 rank list being the first claim,first arising vacancy of the Muslim community after the publication of Ext.P3 rank list)
2. Turn 31 - O.C. filled from Ext.P2 rank list.
3. Turn 32 - S.C. - B.Mini Devi Rank No. 20 Viswakarma (in compensation of 20th Viswakarma passed over to S/C in the Ext.P2 rank list) 4. Turn 33 - O.C. - Latha Aravind - Rank No. 1
5. Turn 34 - Ezhava - Smitha M.R. Rank No. 14 - Ezhava
6. Turn No.35 - O.C. - Hashim E., Rank No. 2"OP No.18170 of 2002 9
The above course has been rightly pursued by the University by passing Ext.P7, i.e., placing the respondents 3 and 4 over and above the petitioner and finalizing their seniority as at serial Nos. 4, 5 and 6 respectively.
12. The petitioner has got a case that the dictum in Pradeep Vs. Joseph Zachariyas [2001 (3) KLT 765] is not applicable to the case in hand, as the case involved therein was with respect to the denial of appointment to a particular community; while the present case is not a case involving denial of appointment to any particular community. For the reasons stated already, the benefit enjoyable by the persons belonging to a particular community, on applying the rules of reservation/ rotation correctly, can be stated as very much aggrieved, if their chance is taken away or watered down because of any mistake or violation of the specific rules while applying the same even in respect of any other community. Further, the case projected by the respondents 3 and 4 who were the petitioners in OP 28762/1999, was directed to be finalized by this Court as per Ext.P6 judgment; making it explicitly clear that the University was bound by the dictum in 2001 (3) KLT 765. The University was directed to reconsider the seniority dispute between the parties concerned independently and un influenced by the stand already taken in the counter affidavit filed by the University in OP 28762/1999 (sustaining OP No.18170 of 2002 10 the rank in Ext.P4 provisional seniority list) Obviously, the University has realized the mistake and applying the relevant rules in a correct and proper manner, in the light of the law declared by this Court in Pradeep Vs. Joseph Zachariyas [2001 (3) KLT 765], the inter-se seniority of the respondents 3 and 4 and the petitioner has been refixed, placing them at serial Nos. 4, 5 and 6 respectively. Ext.P7 order passed by the University is perfectly within the four walls of the law and it is not assailable under any circumstance.
In the above facts and circumstances, the Writ Petition fails and it is dismissed accordingly.
P. R. RAMACHANDRA MENON JUDGE dnc