Dr. Kiran Kumar v. University of Calicut

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU SATURDAY, THE 20TH DAY OF SEPTEMBER 2014/29TH BHADRA, 1936 WP(C).No. 20988 of 2013 (W) --------------------------------------- PETITIONER : - ---------------------- DR. KIRAN KUMAR, AGED 29 YEARS, S/O BALAKRISHNAN, AISWERYA, NADERI, KOYILANDY, KOZHIKODE-673 620. BY ADVS.SRI.V.JAYAPRADEEP SMT.V.V.RISANI RESPONDENT : - ------------------------- THE UNIVERSITY OF CALICUT, REP. BY ITS VICE CHANCELLOR, CALICUT UNIVERSITY PO, MALAPPURAM-673 635. BY ADV. SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 20988 of 2013 (W) ----------------------------------------- ## **APPENDIX** PETITIONER'S EXHIBITS : - ------------------------------------- EXHIBIT P1: COPY OF THE ORDER DATED 14.1.2013 ISSUED BY THE RESPONDENT. EXHIBIT P2: COPY OF THE ORDER DATED 10.1.11 ISSUED BY THE RESPONDENT. EXHIBIT P3: COPY OF THE ORDER DATED 28.5.2011 OF THE RESPONDENT. EXHIBIT P4: COPY BIO-DATA OF THE PETITIONER DATED 15.7.13. EXHIBIT P5: COPY OF THE MINUTES OF THE DEPARTMENT COUNCIL DATED 15.7.2013. - EXHIBIT P6: COPY OF THE REPRESENTATION DATED 12.7.2013 OF THE PETITIONER TO THE RESPONDENT. EXHIBIT P7 : COPY OF THE LIST DATED 2.9.2013 DETAILS OF REGULARIZED PERSONS IN THE RESPONDENT. EXHIBIT P8 : COPY OF THE JUDGMENT OF THIS HONOURABLE COURT DATED 18.9.2012 IN WPC 19487/2012. RESPONDENTS' EXHIBITS : - NIL. --------------------------------------- // TRUE COPY // P.A. TO JUDE DMR/- ## **DAMA SESHADRI NAIDU, J.** --------------------------------------- ## **W.P.(c) No. 20988 of 2013** ---------------------------------------- Dated this the 20[th] day of September, 2014 ## JUDGMENT The petitioner, who secured employment as Assistant Professor in the respondent University on a temporary basis, more so, on the strength of a judicial directive from this Court through judgment dated 18.09.2012 in W.P. (C) No.19487 of 2012, felt aggrieved when the authorities of the University refused to accept his request to regularize services once the leave vacancy got matured into a substantive vacancy. Ventilating the said grievance, the petitioner has approached this Court. 2. Briefly stated, one Dr. K.S. Subramanian Moosath, who was working as Assistant Professor in the department of Mathematics of the respondent University, secured a position in Indian Institute of Space Science and Technology, Thiruvananthapuram, in the year 2008. Accordingly, though he vacated the post of Assistant Professor in the respondent University, he retained his lien W.P.(c) No. 20988 of 2013 2 on the post till 02.09.2013, as has been statutorily permitted. 3. Thus, the leave vacancy that arose after the said incumbent left the University was filled by appointing one Smt. Sini, on a temporary basis. As it transpired, later, on 31.03.2010, one Professor M.S. Balasubramani retired from service in the same department. Sine the substantive vacancy arose, the respondent University accommodated Smt. Sini, till then working on a temporary basis, in that permanent vacancy. The resultant position is that the post that had been occupied earlier by Dr. K.S. Subramanian Moosath again became vacant, though with the lien still exercised by the said employee. To fill up the said post, the respondent University issued a notification on 27.12.2010. In the rank list prepared subsequent to the interview held on 23.01.2012, the petitioner stood in the first position. Accordingly, on 23.03.2012 the Syndicate, the Apex policy making body of University, decided to appoint the petitioner in the said vacancy. When nothing further materialized thereafter, aggrieved, the petitioner approached this Court, by filing W.P. (C) No. 19487 of 2012, which resulted in W.P.(c) No. 20988 of 2013 3 Exhibit P8 judgment. Thus, based on the direction of this Court in the said judgment, the petitioner was appointed on 05.11.2012 in the temporary vacancy in the department of Mathematics, under the respondent University. 4. As the record reveals, on 12.07.2013, the petitioner submitted Exhibit P6 representation, through proper channel, to the Vice Chancellor of the respondent University to consider his case for regularization, as soon as the lien of the then incumbent could come to an end by 02.09.2013. Further on 15.07.2013, the council of the Department of Mathematics (DC) met and discussed the issue of regularizing the services of the petitioner. Indeed, through Exhibit P5, the said committee extolled the academic merits of the petitioner in glowing terms and strongly recommended to the Vice Chancellor of the respondent University the petitioner's regularization by taking recourse to Chapter 3 (3) of the first Statute of the respondent university. As had been expected, the lien of Dr. K.S. Subramanian Moosath came to an end and the temporary leave vacancy got matured into a permanent vacancy. Since the case of the petitioner has not been considered for regularization despite W.P.(c) No. 20988 of 2013 4 his representation in Exhibit P6 and despite the recommendation of DC through Exhibit P5, aggrieved thereby, the petitioner approached this court by filing the present Writ Petition. 5. In the above factual background, the learned counsel for the petitioner has submitted that the petitioner has been meritorious all through and accordingly, given his excellent academic credentials, the very authorities of the department in which he works, have strongly recommended his candidature to be appointed in the substantive vacancy by way of regularization of his services. The learned counsel has also pointed out that at the earliest point of time, the petitioner made Exhibit P8 representation through proper channel with the same objective. In this regard, adverting to the statutory power of the authorities to regularize the services of the temporary employee without taking recourse to direct recruitment, the petitioner has placed reliance on Clause 3 of Chapter 3 of the Calicut University First Statutes, 1977. The learned counsel has also brought to the notice of this Court, Exhibit P7, which contained the names of other teaching faculties, whose services have been regularized by W.P.(c) No. 20988 of 2013 5 taking recourse to the said Clause 3 of the Statute. According to the learned counsel for the petitioner, the case of the petitioner squarely falls within the category of the candidates in Exhibit P7 and as such it is imperative on the part of the respondent University to have the petitioner's services regularized. 6. Touching upon the legal aspects of the matter, the learned counsel has submitted that for any temporary employee working for a considerable period in an organization, in the face of any substantive vacancy arising thereafter, the said employee shall have a right for permanent appointment, lest it should be violative of the protection granted under Article 14 of the Constitution of India. Expatiating on the said aspect, the learned counsel has further contented that, at this juncture, after regularizing the services of other faculty members who are similarly placed, insisting in the case of the petitioner on going for direct recruitment dispensing with the services is nothing but an invidious treatment offending the principles of Article 14. In that regard, the learned counsel has placed reliance on ## **U.P. State Electricity Board v. Pooran Chandra Pandey** W.P.(c) No. 20988 of 2013 6 ## **and Others [(2007) 11 SCC 92]** . 7. Summing up his submissions, the learned counsel urged this Court to issue an appropriate direction to the respondent University to regularize the services of the petitioner in the substantive vacancy that remains unfilled. 8. Per contra, the learned Standing Counsel has submitted that the petitioner earlier approached this court for temporary appointment to the post of Assistant Professor in the department of Mathematics in the year 2012. In turn, this Court gave a direction to the University to appoint the petitioner against the temporary vacancy. The learned Standing Counsel has laid emphasis on the observation of this Court to the effect that the judicial directive to appoint the petitioner against the temporary vacancy shall not confer any right upon the petitioner, other than to continue in the post, so long as it remains vacant on temporary basis. The learned Standing Counsel has also further pointed out that it was observed by this Court on that occasion that on arising of a permanent vacancy, it was left open for the University to fill the said post by inviting applications from eligible candidates. W.P.(c) No. 20988 of 2013 7 9. The learned Standing Counsel has further submitted that since 23.03.2012, no temporary services have been regularized and that by notifying the permanent vacancies in the open market, it is possible for the University to attract better talent. Accordingly, the learned Standing Counsel urges this Court to dismiss the writ petition as being without any merit. 10. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent University, apart from perusing the record. 11. By and large, the facts of the case are not in dispute. Indeed, the petitioner has secured employment in the respondent University in a temporary vacancy. After preparation of the rank list in which the petitioner stood at first, when the University was reluctant to proceed further, the petitioner approached this Court by filing W.P. (C) No.19487 of 2012. Curiously, at that time, the objection raised by the University in not appointing the petitioner was that it was only a temporary post and University was not obligated to fill up the said post. Having observed that the very notification was concerning a temporary post, this Court W.P.(c) No. 20988 of 2013 8 directed the University through Exhibit P8 judgment to give appointment to the petitioner against the temporary vacancy, as had been notified by the very University. At that juncture, this Court made certain observations, which are instructive to be reproduced; “It is made clear that, this will not confer any right upon the petitioner, other than to continue in the post so long as it remains vacant on temporary basis, i.e. till confirmation of Dr. K.S. Subramanian Moosath as Asst. Professor in the Indian Institute of Science and Technology or on expiry of his 'lien' period of five years, whichever is earlier. On arising permanent vacancy, it is open for the University to notify the said post by inviting applications from the eligible candidates. It will be open for the petitioner as well, to apply for the post, if he is qualified in all respects.” 12. A perusal of the above observation of this Court makes it very clear that University has been left with its discretion undisturbed, especially to the extent of its going for regular recruitment in the open market once a permanent vacancy is made available. It is rightly contended by the learned counsel for the petitioner that the observation of this court on that occasion does not come in the way of the University exercising its power under Clause 3 of Chapter 3 W.P.(c) No. 20988 of 2013 9 of the Statue. I entirely concur with the submission of the learned counsel for the petitioner. Nevertheless, what falls for consideration is whether there can be any judicial directive in the form of a mandamus to compel the University authorities to exercise the said exceptional power, as has been conferred on the appointing authority in the Statue under reference, to be exercised only in one particular manner. Before elaborating on the said issue, it is profitable to extract Clause 3 of Chapter 3 of the Statute, which is as follows: “3.Appointment of teachers: Teachers of the University shall be appointed by the Syndicate after advertisement inviting applications. In making appointment 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.” 13. Having power is one thing and exercising it is W.P.(c) No. 20988 of 2013 10 another. Not every element of power that an authority possesses need be exercised always in one particular manner. Essentially, it is a matter of discretion on the part of authorities. The respondent University as an employer has ample amount of play in the joints in the case of deciding the mode of recruitment and also deciding the eligibility and suitability of its employees to be inducted. This Court, as a matter of public law remedy, can exercise its judicial review in the matters where the employer negates the statutory provisions in clear terms or exercises its discretion, if conferred, _malafide_ or still refuses to exercise the discretion at all. If we examine the present instance, it is clear that the respondent University, instead of invoking its exceptional power under Clause 3 of the Statute, has decided to go for regular recruitment. As the very nomenclature reveals the power under Clause 3 to dispense with regular recruitment at the expense of many deserving and anticipating meritorious unemployeds across the spectrum is indeed an 'exceptional power' requiring very strong reasons for its exercise. 14. In this case, as can be seen, the petitioner secured W.P.(c) No. 20988 of 2013 11 his temporary employment on its having been expressly made clear that the vacancy would not carry with it any expectation, legitimate or otherwise, that it would be made permanent at any point of time. In that context, the observation of this Court is very illustrative. 15. The fact however remains that in Exhibit P5 the DC recommended the case of the petitioner very strongly, that the petitioner has been eminently suited to be appointed on a permanent basis. At the same time, it cannot be lost sight of that Exhibit P5 is at best a recommendation, though in strong terms, but it can never be treated as a binding directive. Accordingly, it is entirely for the appointing authority to take the decision concerning regularization of the petitioner's services. 16. There is force in the submission of the learned Standing Counsel that when the post was initially notified as a temporary one, it is understandable that not many candidates might have come forward, since it is only a temporary vacancy. Now notifying the post in an open competition, the University has every possibility of attracting the best of the talents. Indeed, the process adopted by the W.P.(c) No. 20988 of 2013 12 University does not in any way deter the prospects of the petitioner, who could as well participate in the selection process. At best, he could have sought the indulgence of the authority, in the event of its going ahead with a regular recruitment, to show consideration for his past service in the very University. It is, yet, again essentially a matter of discretion on the part of respondent University. 17. Before proceeding further, it may be necessary to refer to the decision relied on by the learned counsel for the petitioner - **U.P. State Electricity Board v. Pooran Chandra Pandey and others [(2007) 11 SCC 92]** . In that case, the respondents were working on daily wage basis in the appellant Co-operative Electric Supply Society. When Electricity Board was taken over, all those employees working in the said posts were promised that they would be continued “ _in the same manner and position_ ”. In fact, batches of employees in course of time were regularized. Since the respondent daily wagers have also been similarly placed, they sought the extention of similar benefit to them. When denied, they approached the Court. Eventually, when the High Court of Allahabad directed the regularization, W.P.(c) No. 20988 of 2013 13 aggrieved thereby the U.P. State Electricity Board approached the Supreme Court assailing it. 18. Dismissing the civil appeal, the Supreme Court has observed that there is nothing discernible by way of differentiation between different groups of employees who stood on similar grounds in so far as their services as daily wagers are concerned. Having regularized certain batches of workmen, it does lie in the mouth of the appellant board to refuse to extend the same treatment of parity to the other workmen. In that context, having examined the scope and ambit of **Secretary, State of Karnataka and Others Vs. Umadevi (3) and Others [(2006) 4 Supreme Court Cases 1]** , it was observed that such a discriminatory treatment falls foul of Article 14. 19. Cautioning against repeated reliance on Umadevi's case _(supra)_ despite the factual disparities, their Lordships in Pooran Chandra Pandey have felicitously observed that a little difference in facts or even one additional fact may make a lot of difference in the precedential value of the decision. Indeed, in the present instance too the said observation has a very vital application. W.P.(c) No. 20988 of 2013 14 20. As could be seen from the records, the petitioner was initially inducted on a temporary basis in a leave vacancy. Once it is established that he has got merit, the respondent University could as well have considered under Clause 3 of Chapter 3 of the Statute the regularization. For whatever administrative reasons, the University has not chosen to exercise its discretion in that regard. The past instance of regularizing certain services of the other faculty would not be a substantive ground for the petitioner to urge before this court that he too should have the same relief in the name of parity treatment. In the matters of exercising discretion it is too well established to be caviled about that each and every case shall be examined on its own merits. There cannot be, as it is oft stated, any straight jacket formula, especially in the case of exercise of discretionary powers. 21. Appreciating the practice of going for regular recruitment in the open competition, especially to the positions of higher ranks where academic excellence of the talents may play a very vital role, the Honourable Supreme Court in **Official Liquidator Vs. Dayanand and Others** W.P.(c) No. 20988 of 2013 15 **[(2008) 10 SCC 1]** has observed that in the case of temporary appointment, many meritorious candidates may refrain from offering their candidature; whereas, once it comes to regular appointment, many of them may compete. It is always in the public interest to attract the best of the talents to public service. Accordingly, after elaborate consideration of various precedents holding the period till then, the Honourable Supreme Court has categorically held that a temporary employee cannot have any substantive right to have his services regularized even when there are clearly demarcated permanent vacancies in existence. 22. Suffice it to say that, this court could not be inclined to compel the respondent authority to exercise its discretion in one particular manner, even by invoking its extraordinary powers under Article 226. This Court thus is of the opinion that the case of the petitioner does not call for any judicial intervention. Accordingly, the writ petition is dismissed. No costs. ## **DAMA SESHADRI NAIDU JUDGE** DMR/-