Biju C.V. and Jashna K.J. v. Cochin University of Science and Technology and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 08TH DAY OF DECEMBER 2020 / 17TH AGRAHAYANA, 1942** ## **WP(C).No.21522 OF 2019(M)** ## **PETITIONERS:** |**1**|**BIJU C.V.,**| |---|---| ||**AGED 44 YEARS**| ||**S/O.KUNJAPPAN,**| ||**CHUNDAMKUZHYMARIYIL HOUSE,**| ||**OLIYAPPURAM POST,**| ||**KOOTHATTUKULAM,**| ||**ERNAKULAM DISTRICT.**| |**2**|**JASHNA K.J.,**| ||**AGED 34 YEARS**| ||**D/O.JOSEPH, KALATHIL HOUSE,**| ||**MADAPLATHURUTH,**| ||**MOOTHAKUNNAM P.O.,**| ||**ERNAKULAM - 683 516.**| ||**BY ADVS.**| ||**SRI.AMEER.K.M.**| ||**SMT.O.A.NURIYA**| ||**SMT.M.J.JESNA**| ## **RESPONDENTS:** |**1**|**COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,**| |---|---| ||**CUSAT P.O., PIN - 682 022,**| ||**REP. BY ITS REGISTRAR.**| |**2**|**VICE CHANCELLOR,**| ||**COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY,**| ||**CUSAT P.O., PIN - 682 022.**| |**3**|**ADDL. R3.KERALA PUBLIC SERVICE COMMISSION,**| ||**TRIVANDRUM REPRESENTED BY ITS SECRETARY.**| ||**IS IMPLEADED AS ADDITIONAL R3 AS PER ORDER DATED**| ||**23.10.2019 IN IA 1/2019 IN WP(C) 21522/2019.**| **2** ## **WP(C).No.21522 OF 2019(M)** **R1 BY SRI.S.P.ARAVINDAKSHAN PILLAI, SC, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY R3 BY SRI.P.C.SASIDHARAN, SC, KPSC R4 BY ADV. SMT.LAKSHMI RAMADAS R4 BY ADV. SMT.APARNA RAJAN R4 BY ADV. SRI.SREEDHAR RAVINDRAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.21522 OF 2019(M)** **3** ## **JUDGMENT** ## **Dated this the 8th day of December 2020** Petitioners two in number have approached this Court under Article 226 of the Constitution of India for issue of writ in the nature of mandamus directing the respondents to terminate the services of persons continuing on daily wages/contract basis in relation to the 42 posts of University Assistants created as per Exts.P2 and P9 University orders, with a further direction not to make any person either permanent or temporary on the basis of its own selection process, without reporting the vacancies to Public Service Commission. As per the selection process initiated by the Public Service Commission on request of University for the post of University Assistant, the 1[st] petitioner occupies Rank No.79 in the supplementary list and the 2[nd] petitioner occupies Rank No.4592 in the main list. The validity of the said rank list expired on 09.08.2019. 2. Learned counsel appearing on behalf of the **WP(C).No.21522 OF 2019(M)** **4** petitioner submits that there are 211 posts of University Assistants in the 1[st] respondent University which includes 25 posts of University Assistants created as per University Orders 18.5.1999 and 16.09.1999. Apart from these permanent posts, 42 temporary posts of University Assistants were created by the 1[st] respondent as per the Resolutions. Vide Ext.P4 dated 29.11.2006 the 1[st] respondent University has also created 3 temporary posts of Assistants for the School of Engineering as per the University order. The powers of the Syndicate of the 1[st] respondent is prescribed under Section 18 of the Cochin University of Science and Technology Act, 1986. Ext.P10 circular envisages that the vacancies shall invariably be filled up from the candidates in the rank list. The University is continuing with the appointment of persons on temporary/contract basis and it is in this background petitioners have approached this Court as they have preferential right of selection having stood in the rank list. Before the expiry of the rank list approached this Court on **WP(C).No.21522 OF 2019(M)** **5** 05.08.2019 and therefore matter is subjudice and its validity would not expire. 3. Sri.Aravindakshan Pillai, learned counsel appearing on behalf of respondents submits that there are no sanctioned substantive posts available in the University and services of daily wage/contract employees are being availed only on the exigency of the service and therefore, the same cannot be notified to the Public Service Commission. Even the rank list has also expired. In view of _ratio decidendi_ culled out in the judgment of this Court in _**Kerala Public Service Commission v. Govindan.P.T.K.**_ [W.A.No.1463/98 decided on 22.10.2019] no such directions can be issued and urges this Court for dismissal of this writ petition. In I.A.No.4/2020, there is a prayer for impleadment of additional 4[th] respondent. 4. I have heard the learned counsel for the parties and appraised the paper book. The law with regard to the validity of the rank list is no longer _res integra_ as per the _ratio decidendi_ culled out in the judgment (supra). Paragraph **WP(C).No.21522 OF 2019(M)** **6** ## 7, 8 of the judgment reads as under: “7. In view of the aforesaid position of law, it has to be decided whether the direction given by this Court to include two names after the expiry of the term of the list, deeming it to have been done before the expiry of the period is correct. The direction came in view of the interim direction earlier passed by this Court. 1.8. The term 'deemed' is mostly used to extend the denotation of the defined term to things it would not in ordinary parlance denote and is often a convenient device for reducing the verbiage of an enactment, but that does not mean that wherever it is used, it has that effect; to deem means, simply to judge or reach a conclusion about something, and the words 'deem' and 'deemed' when used in a statute thus simply state the effect or meaning which some matter or thing has the way in which it is to be adjudged. This need not import artificiality or fiction; it may simply be the statement of an undisputable conclusion. When a thing is to be 'deemed' something else, it is to be treated as that something else with the attendant consequences, but it is not that something else. In an oftqoted passage, Lord Asquith stated: If you are bidden to treat an imaginary state of affairs as real you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably flowed from or accompanied it. The statute says that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs, [see East End Dwelling Co.Ltd. v. Finsbury Borough Council **WP(C).No.21522 OF 2019(M)** **7** 1951 (2) All E.R. 587 (H.L.)]. The passage has been referred to and quoted in many decisions of the apex court. It has been held that the position has been eloquently stated [see S. Appukuttan v. Thundiyil Janaki Amma MANU/SC/0416/1988 : A.I.R. 1988 S.C.587, Maganlal v. M/s Jaiswal Industries MANU/SC/0299/1989 : A.I.R. 1989 S.C. 2113 and M/s Orient Paper and Industries Ltd. v. State of Orissa MANU/SC/0169/1991 : A.I.R 1991 S.C. 672. But, as observed by the apex court in State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory MANU/C/0096/1953 : A.I.R. 1953 S.C.333 and Bengal Immunity Co.Ltd. v. State of Bihar MANU/SC/0083/1955 : A.I.R. 1955 S.C. 661 and Maganlal's case MANU/SC/0299/1989 : A.I.R. 1989 S.C. 2113 (supra) legal fictions are created only for some definite purpose, and is to be limited to the purpose for which it was created, and should not be extended beyond that legitimate field. In the background of aforesaid principles, it is to be seen how far the direction given is legal. By the time the order was passed, the rank list had no validity. Merely because an order has been passed, which is not complied with that cannot be a ground to validate the list after its expiry. In the background of what has been stated by the apex Court in the cases referred to above, Court could not have given a direction, as done. That being the position, the direction given by the learned Single judge is unsustainable.” 5. It is strange that the petitioners have come out with a plea for issuance of a direction to the University to remove temporary/contract employees by filling up those **WP(C).No.21522 OF 2019(M)** **8** posts. Nomenclature of temporary and permanent posts is totally different. As per the reply there is no sanctioned posts available and services of temporary and contract employees are being taken as per exigency. Hence the direction as sought for cannot be issued and accordingly the prayer is rejected. For the reason aforementioned, I do not find any merits in the contention of petitioners to pass any direction to respondents or direct to comply the interim directions contained in the order dated 07.08.2019. This writ petition is accordingly dismissed. **Sd/-** **AMIT RAWAL JUDGE** nak **WP(C).No.21522 OF 2019(M)** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF THE PSC RANK LIST PUBLISHED BY THE KERALA PUBLIC SERVICE COMMISSION FOR APPOINTMENT TO THE POST OF 'UNIVERSITY ASSISTANT'.** **EXHIBIT P2 TRUE PHOTOCOPY OF THE UNIVERSITY ORDER NO.AD A1/153/2644/95 DATED 31/12/2001.** **EXHIBIT P3 TRUE PHOTOCOPY OF THE UNIVERSITY ORDER NO.AD.A1/EXAM(S.R.) 2004 DATED 26/10/2004.** **EXHIBIT P4 TRUE PHOTOCOPY OF THE UNIVERSITY ORDER NO.AD.A1/153/2005(A) DATED 29/11/2006.** - **EXHIBIT P5 TRUE PHOTOCOPY OF THE UNIVERSITY ORDER NO.AD.A1/154/91 DATED 23/6/2008.** **EXHIBIT P6 TRUE PHOTOCOPY OF THE UNIVERSITY ORDER NO.AD.A1/153/2644/95(VOL.I) DATED 13/3/2009.** **EXHIBIT P7 TRUE PHOTOCOPY OF THE UNIVERSITY ORDER NO.AD.A1/153/2644/95 (VOL.1) DATED 9/6/2010.** **EXHIBIT P8 TRUE PHOTOCOPY OF THE UNIVERSITY ORDER NO.AD.A1/153/2644/95(VOL.1) DATED 26/7/2010.** **EXHIBIT P9 TRUE PHOTOCOPY OF THE UNIVERSITY ORDER NO.AD.A1/153/2644/95(VOL.1) DATED 16/5/2011.** **EXHIBIT P10** **A TRUE PHOTOCOPY OF THE CIRCULAR NO.7049/ADV.C3/2012/P&ARD DATED 20/4/2012 ISSUED BY THE PERSONNEL AND ADMINISTRATIVE REFORMS DEPARTMENT, GOVERNMENT OF KERALA.** **WP(C).No.21522 OF 2019(M)** **10** **EXHIBIT P11 TRUE PHOTOCOPY OF THE PROCEEDINGS NO.24748/B2/98/H.EDN. DATED 08/04/1999 ISSUED BY THE HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA.** - **EXHIBIT P12 TRUE PHOTOCOPY OF THE LETTER NO.26989/B2/2000/H.EDN. DATED 05/08/2004 HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA.** - **EXHIBIT P13 TRUE PHOTOCOPY OF THE APPLICATION DATED 22/10/2018 SUBMITTED BY RAHMATHULLA M TO THE PUBLIC INFORMATION OFFICER, OF THE 1ST RESPONDENT UNIVERSITY.** - **EXHIBIT P14 TRUE PHOTOCOPY OF THE REPLY DATED 16/11/2018 GIVEN BY THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT UNIVERSITY.** - **EXHIBIT P15 TRUE PHOTOCOPY OF THE PROCEEDINGS NO.B2/220/2018/HIGHER EDUCATION, DEPARTMENT DATED 30/10/2018.** - **EXHIBIT P16 TRUE PHOTOCOPY OF THE RELEVANT PORTION OF COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT DATED 08/02/2019 IN WRIT PETITION NO.41864 OF 2018.** - **EXHIBIT P17 TRUE PHOTOCOPY OF THE UNIVERSITY TRANSFER AND POSTING ORDER NO.AD.A1/153(P)/2015 DATED 20/06/2019.** - **EXHIBIT P18 THE TRUE COPY OF THE UNIVERSITY ORDER NO.AD.A1/S.R./98 DATED 18.5.1999.** - **EXHIBIT P19 THE TRUE COPY OF THE UNIVERSITY ORDER NO.AD.A1/C.E./99 DATED 16.9.1999.** - **EXHIBIT P20 THE TRUE COPY OF ABSTRACT NO.FIN IV/21/P/2016 DATED 25.05.2017, ORDER SANCTIONING PENSIONS TO THE EMPLOYEES OF SELF FINANCE COLLEGES.** **EXHIBIT P21 THE TRUE COPY OF ABSTRACT NO.FIN IV/21/P/2016 DATED 24.08.2017, ORDER** **WP(C).No.21522 OF 2019(M)** **11** ## **SANCTIONING PENSIONS TO THE EMPLOYEE OF SCHOOL OF ENGINEERING.** **EXHIBIT P22 THE TRUE COPY OF TE NOTIFICATION NO.AD.A5/ASSISTANTS-CONTRACT/2020 DATED 09.06.2020. EXHIBIT P23 THE TRUE COPY OF THE RELEVANT PAGES PAY REVISION ORDER DATED 21/01/2016. EXHIBIT P24 THE TRUE COPY OF THE RTI REPLY RECEIVED FROM THE 1ST RESPONDENT UNIVERSITY FOR THE CATEGORY WISE DETAILS OF EMPLOYEES FOR WHOM SALARY HAS BEEN DISBURSED IN JULY 2019.** **RESPONDENT'S/S EXHIBITS: EXHIBIT R1A TRUE COPY OF THE GOVERNMENT LETTER NO.26989/B2/2000/H.EDN DATED 05-08-2004.**