Kerala High Court
Suma Nair vs Kerala Agricultural University on 22 September, 2008
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 13794 of 2008(P)
1. SUMA NAIR, HOUSE NO.7/409/4,
... Petitioner
2. DR.ANITHA CHANDRAN.C., TC 18/941,
3. RENI.M., RENI COTTAGE,
Vs
1. KERALA AGRICULTURAL UNIVERSITY,
... Respondent
For Petitioner :SRI.S.P.ARAVINDAKSHAN PILLAY
For Respondent :SRI.M.V.THAMBAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :22/09/2008
O R D E R
ANTONY DOMINIC, J
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W.P.(C).Nos.13794,13811,14074,14104 & 18130/2008
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Dated this the 22nd day of September, 2008
JUDGMENT
The issue raised in these writ petitions being identical, these cases are disposed of by common judgment. For convenience, I shall refer to the pleadings and exhibits in WP(c).No.13811/2008.
2. Thirty five years was the upper age limit prescribed for recruitment in the statute of the Kerala Agricultural University. However, taking into account the age limit as prescribed in other Universities in the State and in order to achieve consistency, the General Council of the respondent University passed a resolution in its meeting held on 4.10.2007, enhancing the upper age limit to 40 years, by effecting necessary amendments to the statute. Wp(c).No.13794/08 7 & conn. 2
3. Section 49(6) of the Kerala Agriculatural University Act provides that no statute passed by the General Council shall be valid or come into force until assented to by the Chancellor. Accordingly, the matter was forwarded to the Chancellor immediately thereafter. After the resolution was passed, the University issued Ext.P1 notification dated 9.10.2007, inviting applications to the post of Assistant Professors in various disciplines. In Ext.P1, it was provided that the candidates shall not be over 35 years as on 1.1.2007. This obviously was in terms of the statute as it stood then. However, the University thereafter issued Ext.P3 notification dated 15.11.2007, which provided as follows.
"The following modification made in respect of age AGE limit extended subject to assent of the statute by the chancellor.
The candidate should not be over 40 years as on 1.1.2007. Relaxation in the upper age limit and reservation benefits will be allowed in respect of candidates belonging to SC/ST/OBC as per rules Wp(c).No.13794/08 7 & conn. 3 in KS&SSR, provided they should enclose a Community Certificate.
All the other conditions in the earlier notification remain unchanged."
4. The petitioners in these cases are candidates whose age was above 35 years as on 1.1.2007 and who claimed the benefit of Ext.P3. Accordingly, they submitted their applications in response to Ext.P1 as modified by Ext.P3. During this period also, the resolution of the General Council amending the upper age limit for recruitment was awaiting assents of the Chancellor. According to the University, in view of the delay in obtaining the assent of the Chancellor and as they they wanted the posts to be filled up, they rejected all the applications which were made by candidates who had crossed the age limit prescribed in Ext.P1. It is at this stage, these writ petitions have been filed by the candidates whose applications were thus rejected.
Wp(c).No.13794/08 7 & conn. 4
5. Prior to the interview the chancellor had assented to the amendment as resolved by the General Council on 4.10.2007 and this amendment was notified in the gazette dated 25.4.2008. Except in WP(c).No.18130/98, in all other cases interim orders were passed and accordingly, the candidates were interviewed. However, In so far as WP(c). No.18130/2008 is concerned, by the time the writ petition was filed,the interviews of candidates who were found to be eligible on scrutiny or as ordered by this court was already over. Although candidates except the petitioner in WP(c). No.18130/2008 were interviewed, the selection remains incomplete even now.
6. The petitioners now contend that the University having chosen to invite application giving them the benefit of amendment as per Ext.P3, should have awaited for the assent of the Chancellor and should not have scrutinised the applications before the Chancellor had granted his assent. As already noticed, the justification of the University in rejecting the applications made by the petitioners and Wp(c).No.13794/08 7 & conn. 5 other candidates who had claimed the benefit of Ext.P3, is that the assent of the Chancellor was unduly delayed and therefore, to avoid administrative inconvenience they had to proceed with the selection.
7. Certain candidates who were eligible in terms of Ext.P1 have got themselves impleaded as additional respondents in WP(c).No.13794/08 and 17811/2008 and filed their counter affidavit. According to the counsel for the additional respondents, at the time of occurrence of vacancies, which have been notified by Ext.P1, as per the statute, the upper age limit was 35 years, subject to normal relaxations. In terms of Section 49(6) read with Section 55 of the Kerala Agricultural University Act, any amendment could be effective only on the Chancellor granting his assent and on publication of the same in the gazette. It is stated that, such assent was granted and the same was published only on 25.4.2008. It is therefore contended that any vacancy that occurred prior to 25.4.2008 has to be filled up only applying the rule as stood prior to the Wp(c).No.13794/08 7 & conn. 6 amendment of the statute. Learned counsel for the additional respondents would also relied on the decision of the Apex Court in Y.V. Rangaiah V. Sreenivasa Rao (1983 (3)SCC 285), R.S.Ajara and others V. State of Gujarat and Ors. (1997(3)SCC 641) and Upen Chandra Gogoi V. State of Assam, and Ors. (1998(3)SCC 381). This contention of the learned counsel for the additional respondents sought to be contradicted by the Learned Senior Counsel appearing for the petitioner in WP(c). No.13811/2008 comparing Section 39(5) of the Cochin University of Science and Technology Act, 1986, with section 49(6) of the Kerala Agricultural University Act, 1971. According to him, unlike Sectiion 39(5) of CUSAT Act, going by the provisions of Section 49(6) of the Kerala Agricultural University Act, there is nothing to indicate that the assent of the Chancellor, if granted, will be effective only from the date of notification. On the other hand he would contend that, once assent is granted the same will be retroactive from the date of resolution and not from the date of Wp(c).No.13794/08 7 & conn. 7 notification.
8. Yet another contention that is raised by the learned Sr. counsel is that in the absence of additional respondent having challenged Ext.P3, it is not open them to question the decision of the University to give the candidates the benefit of amendment.
9. I have considered the submissions made by both sides. As already noticed, the resolution of the General Council to enhance the age limit was on 4.10.2007. Thereafter, the vacancies were notified initially by Ext.P1 dated 9.10.2007 which incorporated the age limit as it stood then in the statute. However, the University issued Ext.P3, modifying Ext.P1 and making the age as resolved applicable to the recruitment in question. Nobody challenged the validity of Ext.P3 and the University has chosen to give the benefit also. In my view, once the University has chosen to give the benefit of Ext.P3, in the recruitment to the posts notified by Ext.P1 fairness required that the University should have waited for the assent of the Wp(c).No.13794/08 7 & conn. 8 Chancellor for processing the applications received.
10. In this case, it can be seen that the assent was granted by the Chancellor on 25.4.2008 which is much ahead of even the interviews that were held by the University. If it was not possible for the University to have awaited for the assent of the Chancellor, having chosen to issue Ext.P3, the University could have at least considered the candidates who have claimed the benefit of Ext.P3 at least provisionally eligible and allowed them to participate in the selection process. This also has not done by the University and therefore in my view petitioners are justified in contending that they should have been treated as eligible candidates.
11. As regards the objection now raised by the additional respondents that the University should have applied the pre-amended rule for the recruitment to the post notified by Ext.P1 is concerned, in my view in the absence of the additional respondents having challenged Ext.P3 notification issued by the University, the University is bound Wp(c).No.13794/08 7 & conn. 9 by Ext.P3 and it is also not open to the additional respondents to raise a contention disputing the eligibility of the petitioners. In so far as the decisions reported in Y.V. Rangaiah V. Sreenivasa Rao (1983(3)SCC 285), R.S.Ajara and others V. State of Gujarat and Ors. (1997(3)SCC 641) are concerned, on facts it is noticed that those were cases arising out of promotion. In such cases, it is the settled law that the eligibility of candidate has to be reckoned as on the date of occurrence of vacancy. In my view that principle cannot be made applicable to the cases of recruitment as contended by the learned counsel appearing for the additional respondents. In so far as the judgment of the Apex Court in Upen Chandra Gogoi V. State of Assam, and Ors. (1998(3) SCC 381) is concerned, there again facts of the case, show that after appointments were made the same was challenged and it is for that reason that the apex court upheld the appointments made. In the present cases, on facts it can be seen that the University had issued Ext.P3 making Wp(c).No.13794/08 7 & conn. 10 applicable the amended recruitment rule and the assent of the Chancellor was obtained before the interview and even as on date, the selection process remain inconclusive. If that be so, the facts are much different to the facts of the case dealt with by the Apex Court.
12. Thus on an over all consideration of facts involved in these cases, I am of the view that the petitioners are entitled to a direction that their candidature should be considered by the University along with other persons who are similarly situated and have responded to Exts.P1 and P3. This the University shall do expeditiously as possible and selection shall be finalized as expeditiously as possible.
The orders rejecting the candidature of the petitioners certainly will stand set aside.
Writ Petitions are disposed of as above.
ANTONY DOMINIC JUDGE vi.
Wp(c).No.13794/08 7 & conn. 11