Kerala High Court
Dr. Suresh Kumar T.V vs Cochin Devaswom Board on 28 June, 2013
Author: C.K. Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
MONDAY,THE 10TH DAY OF FEBRUARY 2014/21ST MAGHA, 1935
WP(C).No. 24062 of 2013 (G)
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PETITIONER:
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DR. SURESH KUMAR T.V,
S/O.VELUTHA KUNJU T.K, NAVAMI, KANAKKARY P.O,
KOTTAYAM DISTRICT.
BY ADV. SRI.KALEESWARAM RAJ.
RESPONDENT:
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1. COCHIN DEVASWOM BOARD,
REPRESENTED BY THE SECRETARY,
COCHIN DEVASWOM BOARD,
THRISSUR-680 001.
2. THE SECRETARY,
COCHIN DEVASWOM BOARD,
(AS THE MANAGER SREE KERALA VARMA COLLEGE ,
THRISSUR & SREE VIVEKANANDA COLLEGE,
KUNNAMKULAM) THRISSUR-680 001.
3. UNIVERSITY OF CALICUT,
REPRESENTED BY THE REGISTRAR, UNIVERSITY OF CALICUT,
THENHIPALAM, KOZHIKODE DISTRICT.
4. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
R1 & R2 BY SRI.V. KRISHNA MENON, S.C,
R3 BY SRI.SANTHOSH MATHEW,S.C,
R4 BY GOVERNMENT PLEADER SRI. P.S. SAJEEV.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 10-02-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Prv.
W.P.(C).NO.24062/2013-G:
APPENDIX
PETITIONER'S EXHIBITS:
P1: TRUE COPY OF THE JUDGMENT DTD. 6/1/2012 IN W.P.(C). NO. 74/2012.
P2: TRUE COPY OF THE NOTIFICATION DTD. 3/4/2012.
P3: TRUE COPY OF THE NOTIFICATION DTD. 2/9/2013.
RESPONDENTS' ANNEXURES:
ANNEXURE-A: TRUE COPY OF THE LETTER DATED 28/06/2013.
ANNEXURE-B: TRUE COPY OF THE ADDENDUM NOTIFICATION DATED 04/10/2013.
//TRUE COPY//
P.A. TO JUDGE.
Prv.
C.K. ABDUL REHIM, J.
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W.P.(c) No. 24062 OF 2013-G
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DATED THIS THE 10th DAY OF FEBRUARY, 2014.
J U D G M E N T
The petitioner is a candidate applied for selection to the post of Assistant Professor (Political Science) in the Colleges under management of respondents 1 & 2, on the basis of Ext.P2 notification published on 03-04-2012. But the respondents 1 & 2 have issued another notification as per Ext.P3 on 02-09-2013, inviting applications for the very same post notified under Ext.P2. The petitioner is challenging the subsequent notification, which is issued after 1 year and 5 months of the initial notification, as illegal and arbitrary.
2. According to the petitioner, there is absolutely no reason or justification for not finalising the selection on the basis of Ext.P2. It is pointed out that the last date for receipt of application stipulated in Ext.P2 had expired long back and the respondents 1 & 2 are not entitled to entertain W.P.(c) No.24062/2013 -2- any application received thereafter. In other words, a person who became qualified subsequently cannot be permitted to submit application, when the last date for receipt of the application was fixed and the selection process was initiated on that basis. The decision in this regard is arbitrary and unreasonable and it is only to cover up such illegalities, the respondents 1 & 2 had issued Ext.P3 fresh notification, is the allegation. Exhibit P3 is unsustainable because it had intentionally prolonged the selection process and permitted ineligible candidates to participate in the selection by re-fixing the last date for submission of applications, is the contention. The enlargement of the zone of consideration would take away fairness in the selection process and it will result in violation of fundamental rights protected under Article 14 & 16 of the Constitutions of India, is the grounds raised.
3. A statement was been filed on behalf of respondents 1 & 2 to the effect that, pursuant to Ext.P2 notification they were unable to secure a 'Government Nominee' and a 'Subject Expert' from the 3rd respondent W.P.(c) No.24062/2013 -3- University to constitute the panel for interview, despite sending repeated reminders. The 3rd respondent University through its letter dated 28-06-2013 (Annexure-A) had directed the management to ensure that the interview for selection is conducted and finalised within 4 months from the last date fixed for receipt of the applications, and the selection and appointment should be made strictly as per the Statute and Rules of the University. It was also directed that candidates who had applied on the basis of the earlier notification should also be considered for the post. It is in accordance with Annexure-A letter, that Ext.P3 notification was issued. It is also mentioned that an addendum Notification was also published as per Annexure-B specifying that those who applied under Ext.P2 notification can apply afresh, after payment of the prescribed fee, if they wish to include any additional qualification or credentials which are acquired after the last date fixed for receipt of application in Ext.P2. It is further stated that in view of the notifications the selection process has to be completed within 4 months from the date prescribed. All the W.P.(c) No.24062/2013 -4- allegations to the effect that fresh notification is issued to induct ineligible candidates, are specifically denied.
4. The University had also filed a statement to the effect that Ext.P2 notification was not legally sustainable as one issued without proper compliance of statutory requirements, and hence the direction was issued to conduct a proper selection.
5. Learned counsel for the petitioner had placed heavy reliance on a decision of the hon'ble Supreme Court in Ashok Kumar Sharma & Others V. Chander shekhar & Another (JT 1997 (4) S.C. 99). The apex court held that, when applications are called for prescribing a last date, eligibility of the candidates should have to be judged with reference to that date and that date alone. A person who acquires the prescribed qualification subsequent to such date prescribed cannot be considered at all. An advertisement or notification issued/published calling for application constitutes a representation to the public and the authority issuing is bound by such representation. It cannot act contrary to it. One reason W.P.(c) No.24062/2013 -5- behind this proposition is that, if it were known that persons who had obtained qualifications after the prescribed date, but before the date of interview, would be allowed to appear for the interview then other similarly placed persons could also have applied. Just because some persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential basis. Their applications ought to have been rejected at the inception itself, is the findings.
6. Crucial question to be considered while applying the dictum mentioned above is that, whether the subsequent notification is intended only to enlarge the time stipulated for receipt of the applications. Facts in Ashok Kumar Sharma's case (supra) is of importance. It is a case where advertisement was published for appointment of Junior Engineer in the service of Jammu and Kashmir State. Last date prescribed for receipt of the application was July 15th 1982. Out of the applicants, 33 persons had not passed the requisite qualification of B.E. (Civil) Examination on or W.P.(c) No.24062/2013 -6- before 15.07.1982. But they had appeared for the said Examination earlier to the last date prescribed and were awaiting results. The results were published only on 21st August 1982. The authority had interviewed these 33 persons despite the fact that they were not qualified as on the last date prescribed for receipt of applications, pursuant to certain instructions given by the Government. They were also selected along with other candidates. Certain candidates who were fully qualified on the last date prescribed under the advertisement, who were selected but placed below in rank of the said 33 persons, filed writ petition before the High Court contending that those 33 persons could not have been allowed to appear for the interview. The writ petition was dismissed by the High Court, which became final. Subsequently, a review petition was filed questioning selection of the said 33 persons. Certain other writ petitions were also filed challenging the appointment. Those petitions were also dismissed by the High Court. But a Division Bench of the High Court allowed appeals filed against, holding that those 33 respondents W.P.(c) No.24062/2013 -7- could not have been allowed to appear in the interview, because they had not acquired the requisite academic / technical qualifications as on the prescribed date. However, the Division Bench thought it just and proper not to set aside the appointment of those 33 persons. On the other hand it was directed that they should be treated as juniors to all those persons who were fully qualified as on the prescribed date. While upholding the view taken by the Division Bench the hon'ble Supreme Court had not disturbed the inter-se seniority between the selected candidates.
7. But in the case at hand, the facts reveals that the management was not in a position to proceed further with the selection based on Ext.P2 notification, because of the specific stand taken by the 3rd respondent University. The University had refused to nominate its members to the selection committee. Annexure A letter was issued directing re-notification of the posts specifying stipulations. It was insisted that the interview should be conducted and the selection should be finalised within 4 months from the W.P.(c) No.24062/2013 -8- date fixed for receipt of application from the candidates. Those who have applied on the basis of the earlier notification were also directed to be considered for the post. Further it was clarified that the number of vacancies should be clearly specified in the advertisement enumerating the nature of vacancies. It is evident from a comparison on Ext.P2 and P3 that, more specifications were provided in Ext.P3, on the basis of directions issued by the University. It is specifically mentioned in Ext.P3 that those who have applied for the post as per Ext.P2 notification need not apply again. It is also evident that an addendum notification was issued enabling those who applied earlier to make further application at their option, if they want to include any additional qualification acquired. These factors would clearly indicate that the management has not adopted any tactics or methods for extension of the last date prescribed for receipt of application. Ext.P3 notification cannot be termed as one intended to induct any additional candidates, who acquired qualification later. Hence the attack based on the ground that the re- W.P.(c) No.24062/2013 -9- notification will amount to an extension of the last date stipulated for receipt of applications and hence it violates the dictum settled by the hon'ble apex court is not merited for consideration. Hence challenge against Ext.P3 fails, and the writ petition is hereby dismissed.
8. Needless to observe that, the respondents 1 and 2 will be at liberty to proceed further with the selection process on the basis of Ext.P3. It is revealed that because of the interim order passed in this writ petition the selection process could not be completed within 4 months, as stipulated in Annexure-A letter of the University. It is left open to the University to consider such situation and to decide on the question of relaxation of the time limit.
Sd/-
C.K. ABDUL REHIM, JUDGE.
AMG True copy P.A to Judge