Kerala High Court
Dr. Reena George vs University Of Calicut on 29 December, 2011
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY,THE 3RD DAY OF FEBRUARY 2016/14TH MAGHA, 1937
W.P.(C).No.9785 of 2015 (W)
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PETITIONER(S):-
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DR. REENA GEORGE, AGED 39 YEARS, W/O.PETSON ANDREW,
NIT CAMPUS, KOZHIKODE - 673 601.
BY ADVS.SRI.K.MOHANAKANNAN
SRI.T.T.SREEKANTH.
RESPONDENT(S):-
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1. UNIVERSITY OF CALICUT,
REPRESENTED BY ITS REGISTRAR,
CALICUT UNIVERSITY - 673635.
2. VICE CHANCELLOR,
UNIVERSITY OF CALICUT-673635.
3. REGISTRAR,
CALICUT UNIVERSITY, KOZHIKODE - 673635.
R1 TO R3 BY STANDING COUNSEL SRI.SANTHOSH MATHEW.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 03-02-2016, ALONG WITH WP(C).17961/2015 & CONNECTED CASES,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-
WP(C).No.9785 of 2015 (W)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXT.P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE
IST RESPONDENT UNIVERSITY ON 28.4.2010.
EXT.P2 TRUE COPY OF THE NOTIFICATION ISSUED BY THE
IST RESPONDENT UNIVERSITY DATED 29.12.2011.
EXT.P3 TRUE COPY OF THE RE-NOTIFICATION DATED 17.12.2013.
EXT.P4 TRUE COPY OF THE DETAILS OF VACANCIES OF
ASST. PROFESSORS PUBLISHED BY THE UNIVERSITY
DATED 23.2.2015.
EXT.P5 TRUE COPY OF THE COMMUNICATION OF THE
1ST RESPONDENT DATED 4.1.2014.
RESPONDENT(S)' EXHIBITS:-
----------------------------------------- NIL.
Vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C).Nos.9785 of 2015-W, 17961 of 2015-U,
18659 of 2015-F & 18797 of 2015-Y.
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Dated this the 03rd day of February, 2016
JUDGMENT
All these writ petitions, except W.P.(C) No.9785 of 2015, were filed challenging the notifications issued by the respondent-University, produced as Exhibits P3 to P5 in W.P.(C) No.18659 2015, bearing Nos. (i) 9833/GA-II-C-SO/2013/CU, (ii) 9833/GA-II-C-SO/2013/CU(2) & (iii) 9833/GA-II-C-SO/2013/CU(3) all dated 13.04.2015. W.P.(C) No.9785 of 2015 was filed challenging the earlier notification; in which there was an interim order that one post of Assistant Professor in Psychology should not be filled up. W.P.(C) No.9785 of 2015 is no more relevant, for reason of the subsequent notification and also the submissions made by the learned Standing Counsel for the respondent-University in answer to the other writ petitions.
2. I have heard all the learned Counsel appearing for the petitioners and the learned Standing Counsel for the University and the grounds boil down to essentially three contentions. The Calicut University Act, 1975 and the Calicut University First WP(C).No.9785 of 2015 & - 2 - connected cases.
Statutes,1977 earlier provided for reservation in appointments department-wise, the roster being maintained as against each Department. The Act stood amended in the year 2014, as indicated in Exhibit P4 in W.P.(C) No.18797 of 2015, by which the communal rotation was to be followed category-wise, treating all departments as one unit. The First Statutes, however, was not amended, since, as submitted by the learned Standing Counsel, the Syndicate felt that the amendment of the Act did not conflict with the First Statutes.
3. Here, the amendment made to the Act and the provision in the First Statutes have to be extracted. Section 6(2) of the Act, as amended, is as under:
"6(2) In making appointments to the teaching and non-teaching posts, the University shall mutatis mutandis observe the provisions of clauses (a), (b) and
(c) of Rule 14 and the provisions of Rules 15, 16, 17 and 17A of the Kerala State and Subordinate Services Rules, 1958, as amended from time to time, and communal rotation shall be followed category-wise treating all the departments as one unit". WP(C).No.9785 of 2015 & - 3 -
connected cases.
Statute 3 of Chapter 3 of the Calicut University First Statutes, 1977 reads as follows:
"3. Appointment of teachers Teachers of the University shall be appointed by the Syndicate after advertisement inviting applications. In making appointments by direct recruitment to post in any class or category in each department under the University, the University shall observe the provisions of clauses (a), (b) and (c) of rule 14 and rules 15, 16 and 17 of the Kerala State and Subordinate Service Rules, 1958, as amended from time to time. It shall however be competent for the Syndicate to appoint in exceptional cases Professors and Readers without advertisement, if it is satisfied that persons already in the service are suitable for the post".
4. Since the afore-extracted statute does not provide for any specific mode of reservation, this Court is inclined to accept the decision of the Syndicate of the University that since the provision is not in conflict with the Act, there would be no requirement for amendment of the statute. However, it is to be noticed that, by the amendment to the Act, Rule 17A of Kerala State and Subordinate WP(C).No.9785 of 2015 & - 4 - connected cases.
Services Rules, 1958 [for brevity "KS&SSR"] has been incorporated. Statute 9 of Chapter 3 of the First Statutes makes the amendments to the Kerala Service Rules [for brevity "KSR"], the KS&SSR and the Kerala Government Servants Conduct Rules, 1960, as amended from time to time, applicable to the First Statutes. In circumstance, since there being no conflict with the provisions of the Act and all the amendments to the rules afore mentioned being applicable to the teachers of the University, there would be no requirement for a specific amendment to the First Statutes existing as of now. The incorporation made in the KS&SSR would stand automatically incorporated in the First Statutes. In such circumstances, even without an amendment to the First Statutes, the University could adopt the categorisation of all the departments being treated as one and apply Rule 17A of KS&SR.
5. The further contention raised by the petitioners is, the decision taken by the Senate to fill backlog vacancies only with respect to the Scheduled Caste/Scheduled Tribe candidates and the physically disabled persons. The SC/ST reservation was earmarked for the post of Assistant Professor of Statistics. The WP(C).No.9785 of 2015 & - 5 - connected cases.
physically handicapped persons were also conceded the first 4 vacancies arising. The aforesaid decisions are seen at Exhibit P2, produced in W.P.(C) No.18659 of 2015.
6. Yet another contention is against the manner in which Exhibit P3 has been published, wherein there is an attempt to classify the different posts in accordance with the reservation, in the notification; thus incorporating the principle of reservation in selection itself, which, according to the learned Counsel appearing for the petitioners, goes against the principle of reservation. Only at the time of appointments reservation could be made, as per roster, is the contention. Exhibit P4 and P5 notifications are also challenged on the very same grounds raised as against Exhibit P2 decisions, which has been noticed herein above. It is further argued that the reservation of 16 posts for Scheduled Castes/Scheduled Tribes and Other Backward Classes, while there are 31 identified in Exhibit P3; violates the 50% rule to be applied for reservations.
7. The learned Standing Counsel for the University would submit that the decision taken at Exhibit P2 was only since there are about 150 posts of Assistant Professors in the University, WP(C).No.9785 of 2015 & - 6 - connected cases.
in which the reservation for physically handicapped persons as per the Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 had not been maintained. To avoid any complaints, 4 posts, to be reserved in a roster of 150 posts, were sought to be set apart at one go, in order to comply with the aforesaid enactment. With respect to the reservation granted for Scheduled Castes and Scheduled Tribes in the post of Assistant Professor for Statistics, that was in accordance with the earlier prescription of department-wise categorization, which was in consonance with the Act and the First Statutes as it existed then, and the provisions of the KS&SSR.
8. In view of the amendment made to the Act and the finding of this Court that there is no conflict with the First Statutes, reservations would have to be made to the appointments made from now on, prospectively, following the roster as prescribed in the KS&SSR and treating all departments as one unit. The setting apart of one post for SC/ST in the post of Assistant Professor (Statistics) and the reservation of the first arising 4 vacancies for the physically handicapped would not also be proper. The reservations made in WP(C).No.9785 of 2015 & - 7 - connected cases.
the notification, which indicate earmarking of reservation to particular posts, would also run contrary to the spirit and principle of reservation, since it would exclude eligible candidates, entitled to reservation,but has qualification for another post. It would also exclude the Open Category candidates from applying for the particular posts. Hence, the contention of the petitioners has to be accepted and reservation has to be applied at the time of appointment and the candidates who are entitled to be granted reservation in accordance with the KS&SSR have to be placed in the specific posts as per the roster as mandated in the KS&SSR.
9. The learned Standing Counsel for the University also submits that a list is prepared on the basis of date of occurrence of vacancy and that the same would be applied insofar as reservation in appointment is made. The learned Counsel for the petitioners submit that the said stipulation would be wrong, insofar as the University would have to go as per the rank list published; the first rank list published in any of the departments being taken as the first vacancies available and so on. This Court is not required to go into that specific contention at this point of time, since the University WP(C).No.9785 of 2015 & - 8 - connected cases.
would have to work out the technicalities and make appointments in accordance with the reservation, which, if found to be arbitrary, is left to be challenged by the aggrieved persons.
10. The further contention raised by the learned Counsel for the petitioners is that the Selection Committee constituted is not in accordance with the University Grants Commission Regulations of 2010. A specific contention is raised that the Regulation does not contemplate the inclusion of a Syndicate member. Section 35(6) mandates that no statute passed by the Senate shall be valid unless assented to by the Chancellor. The Selection Committee for appointment of teachers as provided in the Calicut University First Statutes is in conflict with the norms only with respect to the inclusion of one member of the Syndicate nominated by the Vice-Chancellor. However, the procedure followed by the University by inclusion of a Syndicate member in addition to the Selection Committee, as stipulated by the UGC Regulations is as per Exhibit R1(4), so as to comply with the constitution as per the UGC Regulations without deviating from the First Statutes. It is also contended by the learned Standing Counsel for the University that WP(C).No.9785 of 2015 & - 9 - connected cases.
the Syndicate has already made amendments to the First Statutes, which is pending assent of the Chancellor. The learned counsel for the petitioners would point out that the issue whether, on the basis of the UGC Regulations, there should be an amendment brought to the First Statutes, is pending before a Full Bench. There need not be any finding on that aspect; but, however, the method followed by the University as per Exhibit R1(4), according to this Court, is in compliance with the UGC Regulations since the Selection Committee is one constituted under the UGC Regulations. The Selection Committee will definitely be constituted in accordance with the UGC Regulations and the additional inclusion of one Syndicate member, as stipulated in Exhibit R1(4), cannot by itself lead to any grounds of violation of norms and this Court does not find any infirmity in the said action adopted by the University.
11. In the above circumstances, the notifications bearing Nos.(i)9833/GA-II-C-SO/2013/CU, (ii) 9833/GA-II-C-SO/2013/CU(2) and (iii) 9833/GA-II-C-SO/2013/CU(3) dated 13.04.2015 would stand set aside. W.P.(C).Nos.17961 of 2015, 18659 of 2015 and 18797 of 2015 are allowed, directing the University to issue fresh WP(C).No.9785 of 2015 & - 10 - connected cases.
notifications to make appointments in accordance with what has been declared above and the provisions of KS&SSR, as adopted by the University First Statutes and in accordance with The Calicut University Act. The University shall prescribe, in the notification, that the appointments are made in accordance with the applicable rules of KS&SSR. W.P.(C) 9785 of 2015, challenging the earlier notification is rendered infructuous, since the subsequent notifications have come and those too have been set aside. In such circumstances, there is no question of any reservation of a particular post, since the notification, selection and appointment would have to concede to the directions above and the mode prescribed in the KS&SSR. W.P.(C) No.9785 of 2015 would stand closed as infructuous. Parties are left to suffer their respective costs.
Sd/-
K.Vinod Chandran Judge.
vku/-
[ true copy ]