Kerala High Court
Kerala Agricultural University vs Gopinathan Unnithan on 31 January, 1996
Equivalent citations: (1996)IILLJ29KER
Author: J.B. Koshy
Bench: J.B. Koshy
JUDGMENT Sreedharan, J.
1. These Writ Appeals arise from the decision in O.P. 9539/88. Appellant in W.A. 373/92 was not a party to the O.P. She has filed the W.A. after obtaining leave of this court.
2. Short facts necessary for the disposal of these Writ Appeals are as follows :-
Agricultural University invited applications for selection to the post of Professor of Statistics as per Notification dated November 9, 1983. It is the agreed case that the Notification was for filling up one post of professor of Statistics. Petitioner in the O.P. applied for the post among others. A Select Committee prepared a rank list of three candidates. That rank list came into force with effect from May 14, 1984. Immediately after the preparation of the select list, one more vacancy in the cadre of Professor of Statistics arose. So candidates ranked 1 and 2 in the select list were appointed against the two vacancies. When a subsequent vacancy arose in the cadre of Professor of Statistics, an Associate Professor whp was not included in the rank list approached this Court by filing O.P. 4386/84. Petitioner in 4386/84 is the appellant in W.A.373/92. She raised a contention in that O.P. that Notification inviting application to the post of Professor of Statistics was in relation to one post only, and against the vacancies that arose subsequently, persons ranked in the select list should not be appointed. It was further stated by her that inclusion in the select list will not confer on the candidate any right to be appointed in the vacancy which was not notified. This court granted interim stay of appointment of any person against the subsequent vacancy that arose in the cadre of Professor of Statistics. The order of stay passed by this court was extended until further orders and that was in force till the disposal of the O.P. O.P was disposed of by judgment dated November 19, 1987. Thereafter, the petitioner in O.P. 9539/88 filed representations before University seeking appointment against the third vacancy of Professor of Statistics. University by Exts. P4 and P6 communications rejected the request made by the petitioner. Hence he approached this court inter alia praying for the issuance of a writ of mandamus directing the University to appoint him as Professor in Agricultural Statistics on the strength of the inclusion of his name in the select list which came into force with effect from May 14, 1984.
3. University filed a detailed counter affidavit disputing the claim of the petitioner for appointment contending that the total number of vacancies notified was only one and the petitioner ranked No. 3 in the select list is not entitled to be appointed in the vacancy which arose subsequently. It was also contended that decision in O.P. 4386/84 will not help the petitioner to claim the post of Professor.
4. Learned Single Judge took the view that but for the order of stay issued by this court in O.P. 4386/84 restraining the University from making appointment to the post of Professor of Statistics the petitioner would have been appointed, that the order of stay passed by this court cannot adversely affect the interest of the petitioner and that he is entitled to be appointed on the principle that an act of court should not cause harm to a litigant "Acts curiae neminem gravabit". In this view the learned Judge issued a direction to the University to appoint the petitioner to the post to which he was chosen as per the rank list which came into force on May 14, 1984. This direction given by the learned Judge is under challenge.
5. Learned single Judge in para 4 of the judgment found fault with the University in not denying the fact that there existed one vacancy for being filled up by the candidate included in Ext. P1 select list. In Para 3 of the counter affidavit filed on behalf of the University, it was specifically stated that Ext.P1 list was published for filling up the notified single vacancy for Professor of Statistics, the petitioner who was ranked No. 3 in the list, is not entitled to be appointed and that the vacancy to which the petitioner seeks appointment was one created by the University during the pendency of O.P. 4386/84 and that the decision in O.P. 4386/84 did not reserve any right in favour of the petitioner to get the vacancy that was created subsequently. In the nature of the specific contention raised by the University in the counter affidavit, it appears that the observation made by the learned single judge in Para 4 of the judgment referred to earlier is based on a wrong reading of counter affidavit.
6. It is common case that as per the Notification dated November 9, 1983 published by the Kerala Agricultural University, only one vacancy of Professor of Agricultural Statistics was notified. For filling up that one vacancy, a select list was prepared by a properly constituted selection Committee. Three persons who were holding the post of Associate Professor were included in the select list. First man was appointed against the vacancy which was notified. Since another vacancy in the cadre of Professor of Statistics arose immediately therefrom the second candidate ranked in the list was also appointed. Long subsequent to that, a third vacancy of Professor arose. The petitioner who was ranked third has now been directed by the learned single Judge to be appointed against that vacancy. That direction cannot be sustained for more than one reason.
7. When one vacancy alone was notified, candidates ranked in the select list cannot be appointed to the vacancies that arose subsequently. Recruitment of candidates in excess of the notified vacancy is a denial and deprivation of the constitutional rights of other qualified hands under Article 14 read with Article 16(1) of the Constitution of India. Therefore, a person included in the select list cannot be appointed to the subsequent vacancies which were not covered by the Notification. Any appointment to the vacancies that had arisen subsequently and which were not notified for recruitment is unconstitutional. Reference may be made to the decision in Ashok Kumar and Ors. v. The Chairman, Banking Service Recruitment Board and Ors. JT 1995 (8) SC 276. In the instant case, as agreed to by all parties concerned in this case, the vacancy that was notified on November 9, 1983 was only one post of Professor of Agricultural Statistics. It was for filling up that vacancy only a select list was prepared. From that select list, a candidate can be appointed only for filling up the single vacancy notified. Appointment of candidates in the waiting list to the vacancies subsequently arose is unconstitutional.
8. Learned counsel representing the petitioner-respondent advanced an argument that in view of the decision in O.P.4386/84, which has become final, neither university nor the appellant in W.A.373/92 can be allowed to dispute the claim of the petitioner for appointment to the third vacancy. In support of this contention, learned counsel relies on Paragraph 5 of the judgment in O.P.4386/94.
"The only fact that the petitioner was not included in the select list is no reason to hold, that only one post of Professor of Statistics should have been filled up from the select list prepared pursuant to Ext. P1. If three persons were duly included in the select list and sufficient number of vacancies were available, the petitioner, who was not included in the select list, cannot insist that appointment should have been confined only to one post and the other vacancies should be notified afresh".
The said observation, according to us, cannot be treated as one rendered after considering the claims of the present petitioner as against the University. Learned single Judge in that judgment was concerned with the claim of the appellant in W.A. 373/92 against the vacancy that arose subsequent to the filing of that O.P. In that view of the matter, we are not in a position to hold that the above observation made by the learned single Judge is conclusive and binding on the parties as a direction to appoint the petitioner herein in the 3rd vacancy. Further, such an interpretation if adopted will go against the law laid down by the Supreme Court in the decision referred to earlier.
9. Petitioner in the O.P. was ranked No. 3 in the select list which came into force on May 14, 1984. Inclusion of a candidate in the select list will not confer on him any right to the post. Reference may be made to the decision in State of Bihar v. Secretariat Asst. S.E. union (1994-I-LLJ-625). In the light of this authoritative pronouncement, petitioner who secured rank No. 3 in the select list, had not acquired any right to the post. On the basis of the inclusion in the select list, he cannot put forth any claim to the post.
10. Learned single Judge has issued a writ of mandamus directing the Agricultural University to appoint the petitioner as Professor in Agricultural Statistics. It is trite law that this court in exercise of the powers under Article 226 of the Constitution is not to issue a writ a mandamus directing the appointment of a candidate who is included "in the select list. In State of Kerala v. A. Lakshmikutty and Ors.., AIR 1987 SC 331., Their Lordships after stating that a candidate who is included in the select list has no legal right to the post held that the High Court in exercise of the powers in Article226 of the Constitution cannot issue a writ of mandamus directing the authorities to make the appointment. In view of this statement of law, the learned single Judge was clearly in error in issuing a writ of mandamus directing the University to appoint the petitioner against the third vacancy of Professor in Agricultural Statistics, that arose on subsequent date.
11. Learned single Judge then relied on the principle that the order of court cannot harm the rights of the petitioner. This principle was sought to be pressed into service on a wrong premises that but for the order of stay granted by this court in O.P. 4386/83 petitioner would have been appointed as Professor of Agricultural Statistics. Not only that the said premises is factually incorrect but also the above principle will not apply to the facts on hand. What the Supreme Court stated in Jano Singh v. Brij Lal and Ors., AIR 1966 SC 1631 was that:-
"There is no higher principle for the guidance of the Court than the one that no acts of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: Actus curiae neminem gravabit"
In the instant case, no mistake was committed by any court to the prejudice of the petitioner. In O.P. 4386/84 this court legally granted an order of stay. The granting of the order of stay by this court can, under no circumstance, be termed as a mistake committed by this court. When there is no mistake in granting the said order of stay, the principle that no act of court should harm a litigant cannot have any application. A Division Bench of this Court in Kerala Public Service Commission v. Dr. Kesavankutty Nair, 1977 KLT 818, on an identical set of facts took the view that an order of stay granted by this court in a previous litigation cannot be taken as a mistake committed by this court for pressing the maxim Actus Curiae into service. We are in respectful agreement with the law stated by the Bench. So on the basis of the order of stay granted by this court in O.P.4386/84 petitioner in this case cannot put-forth a claim to the post to which he was not legally entitled to.
In view of what has been stated above, we hold that the decision rendered by the learned single Judge is clearly unsustainable. We set aside that decision.
Writ Appeals are allowed and O.P. 9539/88 is dismissed. However, we make no order as to costs.