Dr. Vinu Govind v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944** **WP(C) NO. 36679 OF 2022** ## **PETITIONER:** **DR.VINU GOVIND, AGED 34 YEARS, S/O.GOVINDAN NAMBOOTHIRI K.K., KOLLAPPALLY MADOM, NEELAMPEOOR P.O, ALAPPUZHA -686534.** **BY ADVS. KALEESWARAM RAJ JOGGY MATHUNNI SHILPA SOMAN THULASI K. RAJ** ## **RESPONDENTS:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF HIGHER EDUCATION,**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695001.**| |**2**|**MAHATMA GANDHI UNIVERSITY,**| ||**REPRESENTED BY ITS REGISTRAR,**| ||**ADMINISTRATIVE BLOCK,**| ||**PRIYADARSINI HILLS POST,**| ||**UNIVERSITY CAMPUS RD,**| ||**ATHIRAMPUZHA, KOTTAYAM- 686560.**| |**3**|**REGISTRAR, MAHATMA GANDHI UNIVERSITY,**| ||**ADMINISTRATIVE BLOCK,**| ||**PRIYADARSINI HILLS POST,**| ||**UNIVERSITY CAMPUS RD,**| ||**ATHIRAMPUZHA,**| ||**KOTTAYAM- 686560.**| |**4**|**VICE CHANCELLOR,**| ||**MAHATMA GANDHI UNIVERSITY,**| ||**ADMINISTRATIVE BLOCK,**| ||**PRIYADARSINI HILLS POST,**| ||**UNIVERSITY CAMPUS RD,**| ||**ATHIRAMPUZHA, KOTTAYAM- 686560.**| **WP(C) NO. 36679 OF 2022** **-2-** - **5 THE MANAGER, MAR THOMAS COLLEGE, KUTTAMPUZHA P.O. THIRUVALLA -689105.** - **6 THE PRINCIPAL, MAR THOMAS COLLEGE, KUTTAMPUZHA P.O. THIRUVALLA -689105.** - **7 RENJITH J V, S/O VIJAYAKUMAR G, NAMPUMADOM, VAYALA P.O. EZHANKULAM, PATHANAMTHITTA.** **BY ADVS.GEORGE POONTHOTTAM (SR.) BHANU THILAK NISHA GEORGE A.L.NAVANEETH KRISHNAN S.R.PRASANTH SRI.SURIN GEORGE IPE -SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 36679 OF 2022** **-3-** ## **JUDGMENT** The petitioner asserts to have been included in a ranklist prepared by “Mar Thoma College” (hereinafter referred to as the 'College'), pursuant to Ext.P1 notification, for the post of Assistant Professor in Economics. He alleges that, however, even though he is within the zone for being appointed next in the said rank list, it is being denied; and that he understands that this is because they want to cancel the recruitment to the post in question and offer it to another candidate. He contends that this is illegal and unlawful; and thus prays that respondents 5 and 6 be directed to appoint him as an Assistant Professor in Economics, forthwith. 2. The afore arguments of Smt. Thulasi K.Raj - learned counsel for the petitioner, were ## **WP(C) NO. 36679 OF 2022** **-4-** answered by Sri.George Poonthottam – learned Senior Counsel, instructed by Smt.Ann Maria Francis, appearing for the College, relying upon the counter affidavit filed by his client, arguing that, out of the two vacancies available for the post of Assistant Professor in Economics as mentioned in Ext.P1, one now mandatorily requires to be reserved for Persons with Disability, under the provisions of “Rights of Persons with Disabilities Act, 2016” (hereinafter referred to as the 'Act'). He explained that, it is only after Ext.P1 notification was issued that this Court, in a different batch of writ petitions, specified the procedure to be followed in providing reservation to Physically challenged persons; and hence that the person included as rank number one - Dr.Liji Samuel, alone could be appointed against the first vacancy; while the ## **WP(C) NO. 36679 OF 2022** **-5-** second requires to be reserved for the aforementioned category. He then submitted that interview of the candidates were conducted on 20.05.2022, while the Government order with respect to the manner in which the posts have to be reserved and the roster as per which it has to be filled up, was issued only on 18.05.2022; and hence, that his client was obliged to reserve the available vacancy, which happens to be in the Department of Economics. He concluded saying that, therefore, going by the provisions of the 'Act', the notification to the extent to which it relates to the now available vacancy in the Department of Economics will require to be cancelled, and a new one issued, specifically inviting candidates under the PWD category, to fulfill the mandate of the 'Act'. **==> picture [377 x 11] intentionally omitted <==** appearing for the 7[th] respondent, submitted that, ## **WP(C) NO. 36679 OF 2022** **-6-** though her client has been shown to be included in the “PWD” category in Ext.P5, the fact remains that he applied under the open quota as per Ext.P1 and obtained first rank among all other candidates. She argued that, therefore, the petitioner cannot stake any claim in precedence to her client and pointed out that, in fact, her client's appointment has not been impugned by the petitioner in any manner. She thus prayed that no orders be issued against the 7[th] respondent. 4. Sri.Surin George Ipe – learned Standing counsel for the Mahatma Gandhi University submitted that he does not have any specific comment to make on the controversy projected in this case because it is for the College to answer it. 5. I have evaluated the afore submissions on the touchstone of the materials available on **WP(C) NO. 36679 OF 2022** **-7-** record. 6. It is without doubt that Ext.P1 notification was issued by the College, wherein, no candidate with disability was invited. However, they settled Ext.P5 Rank List, showing some persons under such quota; but this cannot obtain the legal sanction because it was not pursuant to any special notification for that purpose, under the provisions of the 'Act'. 7. To such extent, I find favour with the submissions of Sri.George Poonthottam – learned Senior Counsel. 8. However, the question which remains is whether petitioner could have been denied appointment to the second available vacancy in the Department of Economics, particularly after the 7[th] respondent had been accommodated against the first among them. 9. In this regard, the averments in the ## **WP(C) NO. 36679 OF 2022** **-8-** counter affidavit of respondents 5 and 6 throws light; and for such reason, I extract them as under: _“ 3. As a matter of fact, it is only after the publication given as per Exhibit-P1, this Court has held that in a batch of writ petitions specifying the procedure to be followed in providing reservation for the physically challenged persons (PWD). The person included as Rank No.1 for the post of Assistant Professor (Economics) is Dr.Liji Samuel and since there are two vacancies in Economics, the next vacancy was reserved for candidate from PWD category by the selection committee. This was done on a bonafide belief that the same will meet the requirements of law. As a matter of fact, interview was conducted on 20.05.2022 and the Government order in this regard was issued on 18.05.2022 which prompted the selection committee in reserving the second seat in Economics under the PWD category. Since there is no specific mention in Exhibit-P1, as regards the reservation for PWD category candidates, we are advised to cancel one vacancy in Economics and to re-notify the said vacancy exclusively for PWD candidates giving more opportunity to candidates in the said segment. Therefore, this court may be pleased to permit respondents 5 and 6 to proceed further by re-notifying one vacancy of Assistant Professor (Economics) for the PWD category which was wrongly included in the general category while issuing Exhibit-P1. This affidavit is filed only to place on record the bonafide decision of the respondents._ ” ## **WP(C) NO. 36679 OF 2022** **-9-** 10. I cannot find error in the impression of respondents 5 and 6 as afore, because it is true that this Court has already declared the manner in which the reservation for “PWD” candidates are to be worked out, juxtaposed with the relevant Government Orders. 11. When the College asserts that there is no other vacancy available with them to accommodate a person with disability, so as to satisfy the imperative mandate of the 'Act', I cannot find their action - in not appointing the petitioner, to be wrong, particularly when they say that they intend to bring out a new notification under the ambit of the 'Act', to fill up the said vacancy. 12. In fact, Sri.George Poonthottam – learned Senior Counsel, also showed me a letter issued by the University dated 08.12.2022, pending this lis, whereby, his client has been ## **WP(C) NO. 36679 OF 2022** **-10-** asked to fill up at least two vacancies under the rigour of the 'Act'. 13. In the afore circumstances, I am afraid that I cannot find favour with the petitioner merely because he has been included in the Rank List, since it has been well declared by a Full Bench of this Court in _**Unnikrishnan Nair G.S.**_ _**and Others v. State of Kerala and Others**_ [ILR 2019 (1) Kerala 775] that mere inclusion in a Rank List will not give any vested right to a candidate, for being appointed. 14. When the College has decided to cancel Ext.P1 notification with respect to one of the vacancies available in the Economics Department, so as to re-notify it, under the provisions of the 'Act' - to be filled up by a person with disability, I can certainly not find against it. 15. That being said, if any new vacancy is to arise in the Economics Department of the ## **WP(C) NO. 36679 OF 2022** **-11-** College during the currency of the Rank List, certainly it must be offered to the petitioner, provided he satisfies all relevant and required prescriptions. In fact, Sri.George Poonthottam – learned Senior Counsel, also affirmed this; but added that, to his information, no vacancies may arise in the near future. In the afore circumstances, I close this writ petition, without acceding to the request made by the petitioner for the time being; however, leaving liberty to him to approach this Court again, if any vacancy is to arise in the Economics Department of the College during the currency of the Rank List, and if his claim for being appointed against it is not acceded to for any reason. ## **Sd/DEVAN RAMACHANDRAN JUDGE** akv ## **WP(C) NO. 36679 OF 2022** **-12-** ## **APPENDIX OF WP(C) 36679/2022** ## **PETITIONER EXHIBITS** - EXHIBIT P1 TRUE COPY OF THE NOTIFICATION ISSUED BY THE RESPONDENT COLLEGE DATED 5.10.2021. - EXHIBIT P2 TRUE COPY OF THE INTERVIEW MEMO DATED 21.04.2022 ISSUED BY THE PRINCIPAL, MAR THOMA COLLEGE TO THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE CERTIFICATE OF M.A IN ECONOMICS DATED 06.12.2021. - EXHIBIT P4 TRUE COPY OF THE MARK LIST FOR THE 4TH SEMESTER ISSUED TO THE PETITIONER. - EXHIBIT P5 - TRUE COPY OF THE RANKED LIST DATED 20.05.2022 FOR THE POST OF ASSISTANT PROFESSOR IN ECONOMICS ISSUED BY MAR THOMAS COLLEGE, THIRUVALLA. ## **RESPONDENT EXHIBITS** EXHIBIT R7(A) TRUE COPY OF THE APPLICATION DATED 2104-2020. EXHIBIT R7(B) TRUE COPY OF THE APPOINTMENT ORDER DATED 31-05-2022 ISSUED BY THE RESPONDENT COLLEGE.