Archana P. v. State of Kerala and University of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 8TH DAY OF NOVEMBER 2016/17TH KARTHIKA, 1938** **WP(C).No. 1856 of 2013 (F) ---------------------------** **PETITIONER:** **-----------** **1. ARCHANA.P., AGED 27 YEARS, D/O.R.M.PARAMESWARAN, TC 7/1972, 'SWARARAGASUDHA'.,SRI CHITRA NAGAR, PANGODE, THIRUMALA P.O.,THIRUVANANTHAPURAM.** **2. DR.SAINI N C, D/O.CHANDRAN NAIR, THUSHARAM, IDAKKODE, NEMOM P.O.,THIRUVNANTHAPURAM.** **BY ADV. SRI.T.R.RAVI** **RESPONDENT(S): --------------** **1. STATE OF KERALA, REP.BY PRINCIPAL SECRETARY GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARAIT, THIRUVANANTHAPURAM-695001. 2. THE UNIVERSITY OF KERALA, THIRUVANANTHAPURAM-695034, REPRESENTED BY ITS REGISTRAR.** **R1 BY GOVERNMENT PLEADER SMT.RAJI T.BHASKAR R2 BY ADVS. SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH SRI.GEORGE POONTHOTTAM,SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2016 THE COURT ON 08-11-2016, DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 1856 of 2013 (F) ---------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXT.P1.**|<br>**TRUE COPY OF MA. DEGREE CERTIFICATE**| |**EXT.P2.**|<br>**TRUE COPY OF MA. DEGREE CERTIFICATE**| |**EXT.P3.**|<br>**TRUE COPY OF PH.D. DEGREE CERTIFICATE**| |**EXT.P4.**|<br>**TRUE COPY OF NOTIFICATION DATED 22/7/2010**| |**EXT.P5.**|<br>**TRUE COPY OF MINUTES OF MEETING DT.3/11/2012**| |**EXT.P6.**|<br>**TRUE COPY OF LETTER DATED 2/1/13.**| |**RESPONDENT(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXT.R2(A)**|**TRUE EXTRACT OF CHAPTER XVII OF KERALA UNIVERSITY**| ||**FIRST ORDINANCES, 1978 RELATING TO THE DEPARTMENT**| ||**OF PUBLICATIONS**| **/ TRUE COPY / P.S. TO JUDGE** **PJ** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No.1856 of 2013 ----------------------------------------------Dated this the 8[th] November, 2016** ## **JUDGMENT** This writ petition is preferred challenging Exhibits P5 and P6 orders issued by the respondents recalling a notification issued by the University vide Exhibit P4 for filling up the post of Publication Officers in the Department of Publications. Exhibit P6 is an order issued by the Government directing the University to observe the provision of clauses (a), (b) and (c) of Rules 14, 15, 16, 17 and 17A of KS & SSR, 1958, as amended from time to time for direct recruitment of teachers. It is contended that the writ petitioners were applicants to the post of Publication Officer in Hindi and English pursuant to Exhibit P4 notification. It is stated that the post of Publication Officer in Hindi and English are single posts to which no reservation is legally permissible. It is, therefore, contended that the direction that reservation should be followed in filling up such post is not sustainable. It is further contended that the decision of the Syndicate of the University cancelling Exhibit P4 is per se illegal. 2. Heard learned counsel for the petitioners and the learned Senior Counsel appearing for the Kerala University. 2 _**WP(C).1856/13**_ 3. Learned counsel for the petitioner would place reliance on the decision of the Apex Court in _**Post Graduate Institute of Medical Education & Research v. Faculty Association**_ [(1998)4 SCC 1] to contend that in cases where the post notified is a single cadre post, reservation at any point of time on account of rotation of roster will result in keeping the post reserved exclusively for members of Backward Classes and would amount to reservation to the extent of 100%. It is, therefore, contended that since the post of Publication Officers in various languages under the University are not mutually inter changeable, they are single cadre posts and no reservation could be made against them. It is, therefore, contended that Exhibit P4 notification was perfectly in order and selection should proceed on the basis of Exhibit P4. 4. A counter affidavit has been filed on behalf of the University, wherein it is contended that there is only a cadre of Publication Officer in the University under the Department of Publications. No separate post of Publication Assistant in English, Hindi, Sankrit and Malayalam languages is provided for by the Kerala University First Statute, 1977. It is submitted that all the posts of Publication Assistants constitute a combined cadre and Exhibit P4, which notified the posts separately was erroneous. It is further pointed out that the selection committee had, in its meeting held on 25.6.2012, sought the opinion of the 3 _**WP(C).1856/13**_ Standing Counsel whether communal rotation should be applied to the post of Publication Officer, since it is a combined cadre post or whether a fresh notification is to be issued. The Standing Counsel had given an opinion that since the notification does not specify that the posts are reserved, selection can be continued by treating the posts as open posts. However, the Syndicate, which met on 3.11.2012, resolved that communal rotation is to be followed since the posts to be filled up are that of Publication Officers and no separate posts of Publication Officer in the different languages exist. It was, therefore, found necessary to withdraw Exhibit P4 notification which contained factual errors. Exhibit P5 which provides for the issuance of a notification to the combined cadre of Publication Assistant as prescribed in the Statute 2 to Chapter IV of the Kerala University First Statutes, 1977 is perfectly in order, it is contended. Relevant extracts of the Statute are also produced as Exhibit R2(a). 5. The learned Senior Counsel appearing for the University would submit that the question as to what is a single cadre post has been examined by the Apex Court in _**Post Graduate Institute of Medical Education & Research's case (supra)**_ and later in _**State of Karnataka and others v. K.Govindappa and another**_ [(2009) 1 SCC 1]. The distinction between 'cadre', 'post' and 'service' had been explained by the Apex Court in _**K.Govindappa's case (supra),**_ 4 _**WP(C).1856/13**_ wherein it has been held that where isolated and separate post exists within a cadre and if there is only one such post, the same could not be set apart for a reserved candidate. 6. Exhibit R2(a) would go to show that the entry level post in the Publication Department of the University is that of Publication Officer. The method of appointment is by recruitment on the basis of merit by inviting applications by advertisement in the press. The qualification prescribed is Master's degree in first or second class of an Indian University or any equivalent foreign qualification. It is therefore seen that going by the First Statutes, the post available to be filled up is that of Publication Assistant. Going by Exhibit P4 itself, it is clear that there are four posts of Publication Assistants notified. It is evident that the post of Publication Assistant is not a single cadre post. In the above view of the matter, the decision of the University Syndicate to apply the rules to communal reservation which are compulsorily applicable to appointments by direct recruitment made by the University cannot be found fault with. It is only in the case of single cadre posts that the Apex Court has specified that no communal rotation can be operated. The cancellation of Exhibit P4 notification on the ground that there were factual mistakes in the said notification cannot be found fault with. 5 _**WP(C).1856/13**_ 7. The writ petitioners have not sought for any alternative relief in the writ petition apart from challenge against Exhibits P5 and P6. Exhibit P6 is a direction issued by the Government directing that in case the posts notified are not single cadre post, the rules of reservation as provided in the general rules under the KS & SSR are to be followed. The said order is in conformity to the principles and the observations of the Apex Court in the decisions referred to earlier in this judgment. It is only in case of single cadre post, the rules of reservation have been given a go by the Honourable Supreme Court. There is nothing illegal about Exhibit P6 direction. In the above circumstances, the writ petition fails. The same is accordingly dismissed. **ANU SIVARAMAN JUDGE** _vgs_ Continued at page No.6 6 _**WP(C).1856/13**_ The words “Publication Assistant” occurring in lines 4, 6 and 21 of paragraph 4 and in lines 8, 9 and 10 in paragraph 6 of the judgment dated 08/11/2016 in W.P.(C).No.1856/2013 are corrected and substituted by the words “Publication Officer” as per order dated 09/01/2017 in I.A.No.19862/2016 in W.P(C).No.1856/2013. Sd/Registrar (Judicial)