Babu V. Peon and others v. University of Kannur and The Vice Chancellor, Kannur University

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 13[TH] DAY OF AUGUST 2021 / 22ND SRAVANA, 1943 WP(C) NO. 27966 OF 2012** ## **PETITIONER/S:** - **1 BABU V. PEON, DEPARTMENT OF I.T., KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, RESIDING AT PADIYIL HOUSE, CHERUKUNNU P.O., KANNUR-670301.** - **2 JAYAKUMAR.M PEON, EXAMINATION BRANCH, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, RESIDING AT PARIPPAYI, CHENGLAYI P.O., SREEKANDAPURAM-670631.** **3 JAYAPRAKASAN.K. PEON, PLD BRANCH, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, RESIDING AT SREE GOPAL NILAYAM, VENGARA P.O., KANNUR 670305.** - **4 SHAJI THOMAS.M. PEON, C.E'S OFFICE, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, MANAKATTU HOUSE, MANNUTHY P.O., THRISSUR 680651.** **5 BABURAJ CHERUVARY PEON, ACADEMIC SECTION, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, RESIDING AT 'PADMALAYAM', PANARICHAL, IRIVERI P.O., KANNUR 670614.** **6 SATHEESAN.A.V. PEON, ACADEMIC SECTION, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, RESIDING AT ARUVATH VALAPPIL, CHITTARIKOVVAL, KANDOTH.P.O., PAYYANNUR, KANNUR 670307.** - **7 SAJITH KUMAR .K.P. PEON, S.D.E. SECTION, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, RESIDING AT VALIYAMBRATH HOUSE, KOTTAM, MUNDALURE P.O., KANNUR-670622.** -2- W.P.(C). No. 27966 of 2012 - **8 SURESH.E.K.** **PEON, EXAMINATION BRANCH, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, RESIDING AT EANTHANIYIL HOUSE, KANNIVAYAL P.O., CHERUPUZHA (VIA), KASARAGOD-670511.** - **9 RAMESHAN.E. PEON, UNIT-I, SWAMI ANANDHATHEERTHA CAMPUS, KANNUR UNIVERSITY, PAYYANNUR CAMPUS, PAYYANNUR, RESIDING AT ERUVAT PODINGARA HOUSE, NILESHWAR P.O., KASARAGOD-671314.** - **10 SHEEBA P.P. PEON PALAYAD CAMPUS, KANNUR UNIVERSITY, PALAYAD, RESIDING AT CHATHOTH HOUSE, CHEMMARATHOOR, VATAKARA-673104.** - **11 LAKSHMANAN MAVILA PEON, SDE-I, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, RESIDING AT KUNNUMMAL HOUSE, PULLIPOYIL P.O., THILLENKERY, KANNUR 670702.** - **12 VINODKUMAR.T.C. PEON, UNIT-II, KANNUR UNIVERSITY, PAYYANNUR CAMPUS, EDAT, RESIDING AT ANACHAN HOUSE, KOTTAPPURAM P.O., NELESWARAM, KASARAGOD 671314.** - **13 NISHA.N. PEON, EXAMINATION, EG-II, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, RESIDING AT 'ANISHA', N.M.M.L.P.SCHOOL, P.O.MOOZHIKARA, THALASSERY, KANNUR 670103.** - **14 JULIE.K. PEON, EXAMINATION J.R., KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, RESIDING AT KOROTH HOUSE, KOTTAM, MUNDALURE P.O., KANNUR 670622.** - **15 SHIJI.K.N. PEON, ADMIN. BRANCH, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, RESIDING AT 'APPUS', MANGAD, KALLIASSERY.P.O., KANNUR 670562.** -3- W.P.(C). No. 27966 of 2012 **16 SHAJHIMON THOMAS PEON, C.E'S OFFICE, KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR, RESIDING AT KAITHAKKAL, KAMMADAM, MANDAPAM P.O., CHITTARIKAL (VIA), KASARAGOD 671326.** **17 HARI.K. PEON, DEPARTMENT OF TEACHER EDUCATION, KANNUR UNIVERSITY, KASARAGOD, RESIDING AT 'VRINDAVAN', MANIKOTH P.O., KANHANGAD (VIA), KASARAGOD671316.** **BY ADV SRI.P.C.SASIDHARAN** ## **RESPONDENT/S:** - **1 UNIVERSITY OF KANNUR REPRESENTED BY ITS REGISTRAR, MANGATTUPARAMBA, KANNUR 670567.** **2 THE VICE CHANCELLOR KANNUR UNIVERSITY, MANGATTUPARAMBA, KANNUR 670567.** **BY ADVS. SRI.M.SASINDRAN, SC, KANNUR UNIVERSITY SRI.V.A.MUHAMMED, SC, KANNUR UNIVERSITY SRI.VIJU THOMAS, SC, KANNUR UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -4- W.P.(C). No. 27966 of 2012 ## **JUDGMENT** The petitioners were included in Ext.P1 ranked list published by the Kannur University, the 1[st] respondent. It was published on 25.07.2009. The validity of the list was for three years, viz., upto 24.07.2012. The petitioners filed the captioned writ petition after four months since the expiry of the validity of Ext.P1 ranked list. Evidently, their grievance is against the action on the part of the syndicate of the 1[st] respondent University in declining to ratify the order of the 2[nd] respondent, the Vice Chancellor, extending the period of validity of Ext.P1 by one more year. Ext.P5 is the copy of the relevant extract of the Syndicate resolution taken in its meeting held on 26.07.2012. 2. The petitioners raised various allegations to assail Ext.P5 and they seek the following reliefs: “(i) Issue a writ of certiorari or any other writ, order or direction to quash Ext.P5. (ii) Declare that in the wake of unification and enhancement of retirement age from 55 to 56 the decision taken by the 2[nd] respondent to -5- W.P.(C). No. 27966 of 2012 enlarge the validity period of the ranked list, as done by the Kerala Public Service Commission, is in order valid. (iii) Issue a direction restraining the respondents from making any appointment from the list sponsored by the Employment Exchange. (iv) Declare that the petitioners being candidates included in the ranked list after due process of selection they are entitled to get appointment.” 3. A statement dated 11.12.2012 was filed by the Standing Counsel for the University on behalf of the respondent. Subsequently, a counter affidavit was also filed by the respondent. Along with the same, C.M.Application No.4011 of 2013 was filed to condone the delay in filing the counter affidavit. A reply affidavit was filed by the petitioners to the said counter affidavit. In this context it is also relevant to note that pending the writ petition the petitioners have filed I.A No.9066 of 2013 with the prayer to issue appropriate direction to the University not to make any appointment -6- W.P.(C). No. 27966 of 2012 through employment exchange and to continue the petitioners on provisional/contract basis in the interest of justice. Obviously, such a prayer was made taking note of a statement, in the statement filed on behalf of the respondents by the Standing Counsel dated 11.12.2012 to the effect that after declining to ratify the action of the Vice Chancellor in extending the validity of Ext.P1 ranked list in the Syndicate meeting held on 26.07.2012 vide item No.2012.507. Further more the Syndicate resolved to engage Peon/Watchman through employment exchange, if required and also not to make any kind of appointment from Ext.P1 list even on ad-hoc basis. It is also stated in the statement that subsequent to the said resolution of the Syndicate, the District Employment Officer was requested to forward a list of candidates for preparation of a panel to make engagement against the future vacancies. No order was passed by this Court on the petition for direction, obviously in the light of the decision of the Hon'ble Apex Court in **State of Hariyana v. M.P.Sharma (AIR 1994 SC 1804)** . In that case, the grievance was -7- W.P.(C). No. 27966 of 2012 against the judgment of the Division Bench of the High Court of Punjab and Hariyana while disposing of writ petition. The High Court disposed of the writ petition holding that keeping the candidates in the waiting list could not create any light in their favour in the posts, but if the appellant employer for administrative exigency fill up the post on ad-hoc basis, then it would be open to the appellant to appoint the candidates waiting in the list in the order of merit. The list in question had expired and therefore, it was contended that candidates in the waiting list got no right to claim appointment. The Apex Court held: “3. We do not find any illegality in the observations of the High Court. It is one of option to the appellants. If the appellants do not make any appointments to the posts, the question of considering the claims of the waiting list candidates does not arise. In the event of the appellants' choosing to make appointments on ad hoc basis, then certainly the candidates in the waiting list, though it lapsed, must be considered for appointment -8- W.P.(C). No. 27966 of 2012 de hors the Rules which may not confer any right on them for future recruitment. It is only an enabling direction to make temporary appointment pending regular recruitment.” 4. Now the question to be looked into is whether the petitioners are entitled to any of the reliefs sought for. Admittedly, Ext.P1 ranked list was having a validity of only three years since its publication as the list was published on 25.07.2009 and the list had elapsed by efflux of time of three years. It is only after four months since its expiry that the writ petition was filed. It appears that the cause of action for filing the writ petition is the passing of Ext.P5 resolution whereby and whereunder a decision by the 2[nd] respondent the Vice Chancellor to extend the period of Ext.P1 ranked list by one more year was declined to be ratified. The contention of the petitioner is that the age of retirement of Government employees was enhanced to 56 from 55. Consequently, on the request of the Government, the Kerala Public Service Commission had extended the life period of all then existing ranked lists by one year. As contended by the respondents by -9- W.P.(C). No. 27966 of 2012 way of objection though the petitioners sought for quashment of Ext.P5 they did not specify to what extent it is to be quashed in view of the fact that Ext.P5 contains several decisions on various issues taken by the Syndicate in the meeting dated 27.06.2012. Even if it is taken that the petitioners assail only item No.2012.507 whereby the action in extending the validity of the list by the Vice Chancellor was declined to be ratified, the question is what is the indefeasible right of the petitioners to claim extension of the validity of a ranked list and naturally to claim appointment from such a list. Ground (i) raised in the writ petition would reveal that, according to the petitioners, the Syndicate had taken such a decision due to the animosity or political rivalry towards the previous Syndicate. I am at a loss to understand as to how such a contention can be sustained when the challenge is against a resolution of the Syndicate of a University. The petitioners themselves would admit the fact that Syndicate is a body having perpetual entity. The petitioners also contended that most of them are working on daily wage basis since 2009 -10- W.P.(C). No. 27966 of 2012 and the said fact itself would reveal the existence of vacancies of Peon/Watchman in the University. In the counter affidavit, it is specifically stated that the sanctioned strength of Attenders in the University is 31 and all those posts are manned by regular hands. The petitioners were appointed beyond the sanctioned strength purely temporarily under certain contingencies. But, it would not confer any right to continue in service on the petitioners beyond the stipulated period. I have called for the records and perused them. However, on such careful perusal, I do not find any sustainable reason for granting the prayers sought for. The fact that the PSC had extended the validity of the period of ranked list by one year cannot be a reason for making a declaration that the decision of the 2[nd] respondent to extend the period of Ext.P1 ranked list by one year is valid. Though the petitioners have challenged Ext.P5, even if it is taken that the challenge is against resolution No.2012.507 no specific provision was brought to my notice making it mandatory for the Syndicate to ratify all actions of the Vice Chancellor of the 1[st] respondent -11- W.P.(C). No. 27966 of 2012 University. In the absence of any specific provision making it mandatory for the Syndicate to ratify a decision of the Vice Chancellor, this Court cannot make a declaration that the decision which was declined to be ratified by the Syndicate is valid. So also, no direction could be issued restraining a University from making appointments from a list sponsored by the employment exchange on ad-hoc basis. The decision in **M.P.Sharma's** case, for the reasons evident from the judgment itself cannot be a ground for issuing a direction to the respondents to make appointment from the expired list in case of ad-hoc appointments. In **M.P.Sharma's** case, the Hon'ble Apex Court only held that the direction of the High Court was only to the effect that keeping the candidates in the waiting list would not create any right in their favour in the posts, but if owing to administrative exigencies vacancies are filled up on ad-hoc basis, then it would be open to the appellants to appoint the candidates waiting in the list in the order of merit. It is that liberty which was challenged by State of Hariyana. The operative portion of the judgment would -12- W.P.(C). No. 27966 of 2012 reveal that the Apex Court only opined that it did not find any illegality in the observations of the High Court as what was directed was one of the options available to the appellants therein. When that was one of the options and if any other option is availed that cannot be a reason for holding that the procedure adopted is illegal for not having chosen to effect ad hoc appointments from the list prepared earlier, but expired later. In the circumstances, I do not find any merit in the contentions of the petitioners and they are not entitled to get the reliefs sought for. Consequently, the writ petition is dismissed. Sd/- **C.T. RAVIKUMAR JUDGE** das -13- W.P.(C). No. 27966 of 2012 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE RANKED LIST** - **EXHIBIT P2 TRUE COPY OF THE MEMO DATED 12.11.2009 ISSUED TO THE 1ST PETITIONER** - **EXHIBIT P3 TRUE COPY OF THE REQUEST MADE BY THE UNIVERSITY DATED 17.01.2007** - **EXHIBIT P4 TRUE COPY OF THE NOTES TO THE SYNDICATE, RECEIVED UNDER THE RIGHT TO INFORMATION ACT** - **EXHIBIT P5 TRUE COPY OF THE RELEVANT EXTRACT OF THE SYNDICATE RESOLUTION** - **EXHIBIT P6 TRUE COPY OF THE COMMUNICATION ISSUED ON 30.10.2012 TO THE EMPLOYMENT EXCHANGE** - **EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN WP(C) 36126 OF 2010** - **EXHIBIT P8 TRUE COPY OF THE MEMO DATED 23.08.2013** - **EXHIBIT P9 TRUE COPY OF THE NOTE DATED 07-09-2013** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R-1(a) TRUE COPY OF THE DECISION REPORTED IN 2005 (3)KLT 837 DATED 7-7-2005** - **EXHIBIT R-1(b) TRUE COPY OF THE RELEVANT PAGE OF PART I AND II OF CHAPTER IV OF KANNUR UNIVERSITY FIRST STATUTES** - **EXHIBIT R-1(c) TRUE COPY OF THE RELEVANT PAGE OF CHAPTER XV OF KANNUR UNIVERSITY ORDINANCES**