Dr. Lekha M. v State of Kerala, University of Calicut and University Grants Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942** ## **WP(C).No.2195 OF 2020(Y)** ## **PETITIONER/S:** **DR. LEKHA M. AGED 40 YEARS W/O.M.RAMESH NARAYANAN, AISHWARYA, P.O.GURUVAYOORAPPAN COLLEGE, KOZHIKODE-14, NOW WORKING AS ASSISTANT PROFESSOR (HINDI), DEPARTMENT OF HINDI, NSS HINDU COLLEGE, CHANGANASSERY, KOTTAYAM DISTRICT.** **BY ADVS. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON SMT.K.N.ABHA SRI.A.G.PRASANTH** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE UNIVERSITY OF CALICUT, THENJIPALAM, MALAPPURAM DISTRICT, PIN-673 636, REPRESENTED BY ITS REGISTRAR. 3 THE UNIVERSITY GRANTS COMMISSION(UGC), BAHADUR SHA ZAFAR MARG, NEW DELHI-110 002, REPRESENTED BY ITS SECRETARY.** **R1 BY GOVERNMENT PLEADER R2 BY SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY R2 BY ADV. SRI.P.C.SASIDHARAN R3 BY SRI.S.KRISHNAMOORTHY, CGC** ## **OTHER PRESENT:** ## **GP SRI B HARISH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.2195 OF 2020(Y)** **2** ## **JUDGMENT** ## **Dated this the 30[th] day of November 2020** Petitioner, who is a postgraduate degree holder in Hindi with M.Phil, NET, B.Ed and Doctoral Degree eligible to be appointed as Assistant Professor in the University of Calicut, submitted an application pursuant to the notification Ext.P3 dated 31.12.2019. The age limit, in the aforementioned notification was prescribed as on 1.1.2020 for Assistant Professor below 40 years. Learned counsel for the petitioner submits that on commencement of the Public Services (Date for determination of age for eligibility and appointment) Rules 1977, the determination of age for eligibility for appointment to the post included in various services was modified as on 1[st] January of the year in which application for appointment to such posts are invited. Since the notification concededly was published on 31.12.2019, the eligibility date on the notification was mentioned as on 1.1.2020 which is against the mandate of **WP(C).No.2195 OF 2020(Y)** **3** the aforementioned Rules, as the applicability of the aforementioned Rules has been admitted on perusal of the averments in para 10 of the counter. It is in this circumstances, the petitioner had to approach this Court as his application was not accepted being over aged. This Court vide interim order dated 3.2.2020, directed the respondent to consider the hard copy of the application of the petitioner with a caveat that it will not be construed as a right in favour of the petitioner to participate in the process of selection in this behalf. 2. It is further pointed out that the respondents have fixed the date of interview on 1.12.2020 ie., tomorrow. In an interim application, the petitioner has requested for the intervention of this Court to participate in the process of selection process. 3. On the other hand, learned Standing Counsel appearing on behalf of the University, submits that the application of the petitioner for appointment to the post of Assistant Professor was rejected on the ground of the overage. As per the Government order dated 17.8.2019, the upper age limit of Associate Professor as 45 was **WP(C).No.2195 OF 2020(Y)** **4** dispensed with. In this circumstances, the University did not fix any age limit to the Associate Professor and Professors in the notification but the post of Assistant Professor, being an entry cadre, the University followed KS&SSR, also followed by Kerala PSC and the upper age limit has been fixed as 40. As per the judgment of the Hon'ble Supreme Court in **Dr.Ami Lal Bhat v. State of Rajasthan (JT 1997 (6) SC 72)** , it is prerogative/discretion of the University for determining the minimum/maximum age required for a post. Thus, there is no ambiguity in fixing the age limit as 40. However, did not deny the factum of non applicability of the aforementioned Rules. 4. I have heard the learned counsel for the parties and appraised the paper book. Rule 2 of Public Services (Date for determination of age for eligibility and appointment) Rules 1977 reads thus: **“Date for determination of age for eligibility for appointment to Public Services** – With effect on and from the commencement of these rules, the Special Rules for the various State Services and Subordinate Services, in force at such commencement, shall stand modified as if the date specified in those Special Rules for determination of the age for eligibility for **WP(C).No.2195 OF 2020(Y)** **5** appointment to posts included in the various services had been modified as the 1[st] January of the year in which applications for appointment to such posts are invited: Provided that nothing in this rule shall apply to any appointment to be made in pursuance of any notification inviting applications, published before the commencement of these rules.” As per the Rules, the petitioner would not be an over aged for the aforementioned post but the respondents as per the notification considered the age limit as on 1[st] January 2020. In my view, the decision of the respondent in ordering the consideration of age limit as 1.1.2020 is against the mandate of Rules and not sustainable in the eyes of law. Accordingly, the date mentioned in the notification as 1.1.2020 is hereby expunged and ordered to be considered as 1.1.2019, strictly in accordance with the Rule 2 ibid. There is no dispute regarding the age of the petitioner to be considered as on 1.1.2019, who would be falling within the zone of consideration for the post of Assistant Professor. As per the settled law, a person is only liable to be considered, however the aforementioned right of consideration is being taken away, owing to the **WP(C).No.2195 OF 2020(Y)** **6** irregularity in the notification. Accordingly, the writ petition is allowed. The respondents are directed to consider the application of the petitioner to be eligible and allow him to sit in the interview of the selection process on 1.12.2020. However, it is made clear that consideration for his appearance in the interview would not be construed as an appointment, but only as a right of consideration. **Sd/-** sab **AMIT RAWAL JUDGE** **WP(C).No.2195 OF 2020(Y)** **7** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE NOTIFICATION DATED 13.04.2015 ISSUED BY THE 2ND RESPONDENT UNIVERSITY.** - **EXHIBIT P2 TRUE COPY OF THE MEMO RECEIVED BY THE PETITIONER FOR APPEARING FOR INTERVIEW.** - **EXHIBIT P3 TRUE COPY OF THE NOTIFICATION DATED 31.12.2019 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4 THE TRUE COPY OF THE NOTIFICATION ISSUED BY THE CENTRAL UNIVERSITY OF KERALA.** - **EXHIBIT P5 THE TRUE COPY OF THE NOTIFICATION ISSUED BY THE M.G.UNIVERSITY.** - **EXHIBIT P6 THE TRUE COPY OF THE NOTIFICATION ISSUED BY THE KERALA UNIVERSITY.** - **EXHIBIT P7 THE TRUE COPY OF THE GOVERNMENT ORDER. EXHIBIT P8 TRUE COPY OF THE INTERIM ORDER DATED 06.12.2019 IN WOC NO.33220/2019.** - **EXHIBIT P9 TRUE COPY OF THE RE-NOTIFICATION ISSUED BY THE CENTRAL UNIVERSITY OF KERALA DATED 05.03.2015.** - **EXHIBIT P10 TRUE COPY OF THE RE-NOTIFICATION ISSUED BY THE KANNUR UNIVERSITY DATED 03.10.2019.** - **EXHIBIT P11 true copy of memodated 17.11.2020 alomg with the email received from the 2nd respondent** - **EXHIBIT P12 TRUE COPY OF THE EMAIL DATED 18.11.2020 RECEIVED BY THE PETITINER FROM THE 2ND RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE GO(P) NO.335/2014/P&ARD DATED 13/5/2014 IN CONTINUATION OF THE EXHIBIT PRODUCED ALONG WITH THE WRIT PETITION AND THE** **WP(C).No.2195 OF 2020(Y)** **8** **PETITION FOR ACCEPTING ADDITIONAL DOCUMENTS** **EXHIBIT P14 TRUE COPY OF THE JUDGEMNT IN IO(KAT) NO.75/2019 IN CONTINUATION OF THE EXHIBITS PRODUCED ALONG WITH THE WRIT PETITION AND THE PETITION TO ACCEPT ADDITIONAL DOCUMENTS** **EXHIBIT P15 TRUE COPY OF THE NOTIFICATION DATED 30/10/2020 ISSUED BY THE MAHATMA GANDHI UNIVERSITY INVITING APPLICATIONS FOR APPOINTMENT TO THE POST OF ASSISTANT PROFESSORS IN CONTINUATION OF THE EXHIBITS PRODUCED ALONG WITH THE WRIT PETITION AND THE PETITION TO ACCEPT ADDITIONAL DOCUMENTS**