Eugene Peter v. Sree Sankaracharya University of Sanskrit, Kalady & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **FRIDAY, THE 20TH DAY OF JULY 2012/29TH ASHADHA 1934** ## **WP(C).No. 22262 of 2010 (G)** ## **---------------------------** ## **PETITIONER(S):** **-----------------------** **EUGENE PETER, D/O.M.L. PETER, POTHEETTEL HOUSE, VEMPALLY. P.O., KOTTAYAM – 686 633.** **BY ADV. SRI.G.BHAGAVAT SINGH.** ## **RESPONDENT(S):** **--------------------------** **1. SREE SANKARACHARYA UNIVERSITY OF SANSKRIT ,** **KALADY, PIN- 683 574. REPRESENTED BY ITS REGISTRAR.** **2. VICE-CHANCELLOR & CHAIRMAN,** **SELECTION COMMITTEE FOR THE SELECTION OF ASSISTANTS, SREE SANKARACHARYA UNIVERSITY OF SANSKRIT,** **KALADY, PIN- 683 574.** **3. THE PRINCIPAL SECRETARY,** **HIGHER EDUCATION, GOVERMENT OF KERALA, THIRUVANANTHAPURAM.** **4. THE PRO-CHACELLOR, SSUS,** **GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **5. THE CHANCELLOR, SSUS, RAJ BHAVAN, THIRUVANANTHAPURAM, PIN- 695 099.** **6. SRI.JALEESH PETER (PRO OF SSUS), POOTHETTIL HOUSE, VEMBALLY P.O.,** **KOTTAYAM DISTRICT, PIN- 686 633.** **7. GOPIN. G., ASSISTANT (PROVISIONAL), TEMPORARY SECTION OFFICER, SSUS,** **MAIN CENTRE, KALADY-683 574.** ## **WP(C).No. 22262 of 2010 (G)** **8. SREEJA. M, ASSISTANT (PROVISIONAL), TEMPORARY SECTION OFFICER, SSUS,** **MAIN CENTRE, KALADY-683 574.** **9. SREEKUMAR. M.P, ASSISTANT (PROVISIONAL), TEMPORARY SECTION OFFICER, SSUS,** **MAIN CENTRE, KALADY-683 574.** **10. SAKKIR. P.B, ASSISTANT (PROVISIONAL), TEMPORARY SECTION OFFICER, SSUS,** **MAIN CENTRE, KALADY-683 574.** **11. SURESH K.DIVAKAR, ASSISTANT (PROVISIONAL), TEMPORARY SECTION OFFICER, SSUS,** **MAIN CENTRE, KALADY-683 574.** **12. SRIKANT. S, ASSISTANT (PROVISIONAL), TEMPORARY SECTION OFFICER, SSUS,** **MAIN CENTRE, KALADY-683 574.** **13. SHEENA. M.R, ASSISTANT (PROVISIONAL), TEMPORARY SECTION OFFICER, SSUS,** **MAIN CENTRE, KALADY-683 574.** **14. SATHEESH KUMAR. C,** **ASSISTANT (PROVISIONAL), TEMPORARY SECTION OFFICER, SSUS, MAIN CENTRE,KALADY-683 574.** **15. SUJITH. S, ASSISTANT (PROVISIONAL), TEMPORARY SECTION OFFICER, SSUS,** **MAIN CENTRE, KALADY-683 574.** **16. SALIL ROSH. T.S, ASSISTANT (PROVISIONAL), TEMPORARY SECTION OFFICER,SSUS,** **DEPUTED TO KERALA BEVERAGES CORPORATION LTD., (M.M), THIRUVANANTHAPURAM-10.** **17. BIJU. P, ASSISTANT (PROVISIONAL), SSUS, DEPUTED TO KERALA BEVERAGES CORPORATION LTD., THIRUVANANTHAPURAM-10.** **18. AJITHA. B.S, ASSISTANT (PROVISIONAL), SSUS, DEPUTED TO KERALA TAILORING WORKERS WELFARE FUND, THIRUVANANTHAPURAM.** **19. JAMES. S.J, ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **WP(C).No. 22262 of 2010 (G)** **20. LAKSHMI. K, ASSISTANT (PROVISIONAL), TRANSFERRED UNDER INTER UNIVERSITY TRANSFER TO M.G. UNIVERSITY, P.D. HILLS P.O., KOTTAYAM-686 560.** **21. RAJESH. V, ASSISTANT (PROVISIONAL), TRANSFERRED UNDER INTER UNIVERSITY TRANSFER TO M.G. UNIVERSITY, P.D.HILLS P.O., KOTTAYAM-686 560.** **22. VIJOJ D.VIJAYAN, ASSISTANT (PROVISIONAL),** **TRANSFERRED UNDER INTER UNIVERSITY TRANSFER TO M.G.UNIVERSITY, P.D. HILLS P.O., KOTTAYAM-686 560.** **23. SREELEKHA. V.G, ASSISTANT (PROVISIONAL), TRANSFERRED UNDER INTER UNIVERSITY TRANSFER TO M.G. UNIVERSITY, P.D. HILLS P.O., KOTTAYAM-686 560.** **24. BINOY SEBASTIAN, ASSISTANT (PROVISIONAL),** **TRANSFERRED UNDER INTER UNIVERSITY TRANSFER TO M.G. UNIVERSITY, P.D. HILLS P.O., KOTTAYAM-686 560.** **25. DEEPA J.R, ASSISTANT (PROVISIONAL),** **TRANSFERRED UNDER INTER UNIVERSITY TRANSFER TO COCHIN UNIVERSITY, COCHIN UNIVERSITY P.O., KALAMASSERY-683 104.** **26. ANANDAKUMAR. G, ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **27. ANITHA T.DAVID, ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **28. ARUN. C.V, ASSISTANT (PROVISIONAL), SSUS, REGIONAL CENTRE, PANMANA-691 583.** **29. ASHIQ A.HAQ, ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **30. DEEPA. J.R, ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **31. JYOTHISH. P.M, ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **32. MOHAMMED HARIS. H,** **ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** ## **WP(C).No. 22262 of 2010 (G)** **33. KALA N., ASSISTANT (PROVISIONAL),** **SSUS, MAIN CENTRE, KALADY-683 574.** **34. PRASAD. T.S, ASSISTANT (PROVISIONAL),** **SSUS, MAIN CENTRE, KALADY-683 574.** **35. PREMAN THARAVATTAH,** **ASSISTANT (PROVISIONAL), SSUS, REGIONAL CENTRE, KOILANDY-673 330.** **36. RACHEL P.D,** **ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **37. RAGI VARGHESE, ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **38. REJI KAMALA SUKUMARAN,** **ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **39. SANJAY. P.S,** **ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **40. SANTHOSH KUMAR. R,** **ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **41. SHAJI KUMAR. D,** **ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **42. SHAMLA. K.A,** **ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **43. SINDHU. V.K,** **ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **44. AHAMMED KUTTY. P.P,** **ASSISTANT (PROVISIONAL), SSUS, REGIIONAL CENTRE, TIRUR-676 301.** **45. ANILKUMAR. P.M,** **ASSISTANT (PROVISIONAL), SSUS, REGIIONAL CENTRE, PAYYANNOOR-670 327.** ## **WP(C).No. 22262 of 2010 (G)** **46. BINOD VISWAM, ASSISTANT (PROVISIONAL), SSUS, REGIIONAL CENTRE, THURAVOOR-688 532.** **47. OTHAYOTH SUNIL KUMAR, ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **48. PADMINI. C.S, ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **49. SAJEEV. P, ASSISTANT (PROVISIONAL), SSUS, REGIONAL CENTRE, THIRUVANANTHAPURAM-695 035.** **50. SANDHYA. K, ASSISTANT (PROVISIONAL), SSUS, MAIN CENTRE, KALADY-683 574.** **R1 & R2 BY ADV. SRI.ARUN B.VARGHESE,SC,SREE SANKARACHARYA UTY. R3 TO R5 BY GOVT. PLEADER MR.LIJU V.STEPHEN. R13, R27, R33, R36 TO R38, R42 & R50 BY ADV. SMT.K.R.KRISHNAKUMARI R19, R29 & R44 BY ADV. SRI.C.A.CHACKO. R7 TO R12, R14, R15, R17, R18 BY ADV. SMT.VARSHA BHASKAR BY ADV. SRI.T.B.HOOD BY ADV. SMT.M.ISHA BY ADV. SRI.SHAJI P.CHALY BY ADV. SRI.R.SANJITH BY ADV. SRI.N.SUGATHAN.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-07-2012, ALONG WITH W.P.(C)NO. 22272 OF 2010 AND W.P.(C)NO. 7079 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 22262 of 2010 (G)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT.P1 COPY OF THE NOTIFICATION DATED 08/02/2006 ISSUED BY THE RESPONDENT UNIVERSITY. EXT.P2 COPY OF THE NOTIFICATION DATED 30/11/2009 ISSUED BY THE RESPONDENT UNIVERSITY. EXT.P3 COPY OF THE RECEIPT NO.84, BOOK NO.1191 DATED 10/12/2009. EXT.P4 COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 31/03/2010, IN W.P.(C)NO. 7786/2010. EXT.P5 COPY OF THE APPROVAL ORDER GO(MS) NO.60/2004/HEDN DATED 08/06/2004 ISSUED BY THE GOVERNMENT OF KERALA. EXT.P6 COPY OF THE APPOINTMENT ORDER NO.AD.B/4006/2000/SSUS-(16) DATED 19/08/2000 ISSUED TO SANSKRIT P.B., 6TH RESPONDENT. EXT.P7 COPY OF THE CIRCULAR NO.15860/H1/2000/H.EDN. 'B' DEPARTMENT, THIRUVANANTHAPURAM, GOVERNMENT OF KERALA, DATED 23/06/2000. EXT.P8 COPY OF THE CERTIFICATE SUBMITTED BY THE UNIVERSITY TO THE GOVERNMENT NO.AD.B.C.P&FV/2000/SSUS DATED 05/07/2000. EXT.P9 COPY OF THE CERTIFICATE SUBMITTED BY THE UNIVERSITY TO THE GOVERNMENT NO.AD.B/C.P&F.V/2000/SSUS DATED 12/03/2008. EXT.P10 COPY OF THE LETTER NO.GS5-951/2008 DATED 05/12/2008 SENT BY THE OFFICE OF THE CHANCELLOR TO THE 2ND RESPONDENT ALONG WITH A COPY OF THE REPRESENTATION OF THE PETITIONER DATED 05/12/2008. EXT.P11 COPY OF THE LETTER DATED 23/11/1999 ISSUED BY DEPUTY SECRETARY, HIGHER EDUCATION DEPARTMENT TO THE RESPONDENT UNIVERSITY. EXT.P12 COPY OF THE RELEVANT PAGE OF REPORT DATED 07/04/2008 SUBMITTED BY THE ACCOUNTANT GENERAL OF KERALA TO THE RESPONDENT UNIVERSITY. EXT.P13 COPY OF THE REPRESENTATION MADE BY THE RESPONDENT UNIVERSITY NO.AD.B./POST CREATION/SSUS/02 DATED 20/03/2009, THE APPROVAL OF THE MINISTRY AND THE ORDER NO.GO(MS)207/09/ H.EDN. DATED 20/11/2009 PASSED THE GOVERNOR.** ## **WP(C).No. 22262 of 2010 (G)** **EXT.P14 COPY OF THE NOTE FILE NO.1413/E3/98/LAW DATED 28/01/1999 OF THE LAW SECRETARY, LAW (E) DEPARTMENT, GOVERNMENT OF KERALA. EXT.P15 COPY OF THE OPINION GIVEN IN NOTE FILE NO.5889/U12 ON 29/11/1998 BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA. EXT.P16 COPY OF THE SAID CIRCULAR NO.19305/RULES-1/96/P&ARD DATED 09/09/1997.** **EXT.P17 COPY OF THE ONE SUCH EXTENSION OF EMPLOYMENT OF ASSISTANTS NO.AD.B./7180/SSUS PART 2 DATED 04/12/2009 ISSUED BY THE RESPONDENT UNIVERSITY.** **EXT.P18 COPY OF THE ORDER NO.AD.B./7180/SSUS PART 2 DATED 01/01/2010 ISSUED BY THE RESPONDENT UNIVERSITY.** **EXT.P19 COPY OF THE ORDER NO.AD.B./ADDN/SERVICE/SSUS/09 DATED 21/01/2010.** **EXT.P20 COPY OF THE NOTE OF THE SYNDICATE DATED 13/01/2003 PLACED BY THE 1ST RESPONDENT.** **EXT.P21 COPY OF THE AFFIDAVIT ALONG WITH I.A. FILED BY THE VICE CHANCELLOR ON 30/09/2009.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R1A COPY OF THE UNIVERSITY ORDER NO.AD.B/2597/CON/08/SSUS DATED 25/05/2010.** **EXT.R1B COPY OF THE GOVERNMENT LETTER NO.29000/B2/98/H.EDN. DATED 23/11/1999.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** ## **rs.** **C.N.RAMACHANDRAN NAIR & C.K.ABDUL REHIM JJ.** **= = = = = = = = = = = = = = = = = = = = = = W.P.(c) Nos.22262, 22272 of 2010 and 7079 of 2011** **= = = = = = = = = = = = = = = = = = = = = = Dated this the 20th day of July, 2012** ## **JUDGMENT** ## **Ramachandran, J** These writ petitions are filed by some of the applicants, who failed to get appointment to the post of Assistant Gr.II pursuant to selections made by the University, based on notifications issued in 2006 and 2009, challenging the selection and appointments made in the year 2000 based on notification issued in 1997. The case of the petitioners is that, if the selection made pursuant to notification issued by the University in 1997 is cancelled, then some of the petitioners would get appointments from the old list. 2. We heard the counsel appearing for the petitioners and also the counsel appearing for the contesting respondents, who are employees appointed by the University pursuant to the selection based on notification issued in 1997 and also the Standing Counsel for the University and the counsel appearing **W.P.(c) Nos.22262, 22272 of 2010 and 7079 of 2011** **2** for the additional respondents impleaded in W.P.(c). Nos.22262/2010 and 22272/2010 who support the petitions. 3. Sanskrit University at Kalady was started in the year 1993, with limited number of officials only at higher levels. The University issued notifications in 1997 for appointment of Assistant Gr.II. However, simultaneous with the notifications, litigation also started challenging the selection process. Initially, selection process was stayed by a Single Judge of this Court. But the Division Bench vacated the stay and permitted the appointments on provisional basis. The University got the selection made through the institute of management in Government, which conducted the written test and drew up the selection list. Sixty five persons were appointed from the select list in 2000. O.P.No.5599/1998 and connected cases were disposed of by the Division Bench of this Court upholding the selection and rejected the challenge made by various petitioners against the selection process on the ground that the prior approval or sanction for the posts were not obtained from the Government in terms of Section 14(2)(h) of the Sree Sankara **W.P.(c) Nos.22262, 22272 of 2010 and 7079 of 2011** **3** University of Sanskrit Act, 1994. Subsequent to disposal of the cases by the Division Bench, proceedings were initiated before the Lok Ayukta making the allegations of corruption and malpractices in the selection process. Eventhough Lok Ayukta conducted enquiry through their vigilance wing, the same was dismissed as devoid of any merit. Proceedings were then initiated before the Vigilance and Anti corruption Bureau on same allegations and the same was also dismissed. In short, the challenges made against selection and appointments made by the University before the High Court, Lok Ayukta and before the State Vigilance and Anti corruption department were unsuccessful. In the course of time, some of the selected persons have been promoted to the post of higher grades and even as Section Officers. While so, the University proceeded to make selection in the year 2006 and also in 2009. The 2006 notification did not end up in any selection. Another notification was issued in 2009, based on which selection was made and notified posts were filled up from the rank list. The persons who failed in the selection made in the year 2009 are the **W.P.(c) Nos.22262, 22272 of 2010 and 7079 of 2011** **4** petitioners in these W.P.(c)s, challenging the selection made in 2000 on the ground that the same is in violation of Section 14(2) (h) of the Act, which requires prior orders from the Government creating the post for which the appointments have to be made. Petitioners specifically challenge Ext.P5 produced in W.P.(c) No.22268 of 2010, which shows that Government has granted approval for the creation of various posts stated therein, based on decision taken by the University Syndicate. 4. Counsel appearing for the contesting parties and also University submitted that W.P.(c)s are not maintainable on the ground of delay alone. Their further contention is that the selection was in the year 1997 and appointments were made in 2000, whereas the challenge for the first time is made after 13 years of selection process and after 10 years of the appointments. Counsel for the petitioners relied on the decision of the Supreme Court in **Ashok Kumar Das and others v. University of Burdwan and others** (2010)3 SCC 616) and submitted that wherever prior approval from the Government for creation of posts is provided under the Statute, University **W.P.(c) Nos.22262, 22272 of 2010 and 7079 of 2011** **5** cannot create posts and appointments and then seek approval after everything is done. We notice that the facts are slightly different in this case. In the first place, delay alone defeats the claim of the petitioners, because the grievance arose when the notification was issued by the University in 1997 before posts were created through prior approval of the Government as per Section 14(2)(h) of the Act. Further, the appointments were made in 2000. Petitioners could have challenged the selection, which was not done. On the other hand, they waited for the notification to be issued by the University after 9 years of appointments of party respondents and thereafter when they failed in the selection process, they approached this Court with these W.P.(c)s filed in 2010, on the ground that if the appointments made in 2000 are set aside, then those vacancies also could be filled up with the select list made by the University in 2000, making some of the petitioners eligible for appointment. As already noted by us, unsuccessful candidates participated in selection made after 9 years cannot claim posts filled up in 2000 by challenging the appointments made 10 years **W.P.(c) Nos.22262, 22272 of 2010 and 7079 of 2011** **6** back irrespective of the merit of challenge. So far as challenge against Ext.P5 on creation of post and approval by the Government are concerned, what we notice is that Government could create the post and approve the appointments well in advance in terms of the statutory provisions. However, from the developments found on record we have to assume that the Government was very well aware of the selection process adopted by the University before the creation of posts by the Government, as the Government itself was a party in the W.P.(c) pending in this Court. During pendancy of the W.P.(c) which started immediately after the selection process was initiated in 1998 the Government cannot be expected to pass orders either for creating posts or for appointments. So much so, the Government could issue orders under Section 14(2)(h) of the Act immediately after High Court disposed of the W.P.(c). Ext.P5 itself was issued in 2004, wherein it is very clear that the Government was aware of the selection process and the appointments made by the University and infact approval is granted for whatever is done by the University in the selection **W.P.(c) Nos.22262, 22272 of 2010 and 7079 of 2011** **7** and in the appointments made. What is to be inferred is that, the Government being a party in the proceedings in court that started in the year 1998, the Government could not have decided anything when the matter was subjudice. Therefore, it should be assumed that there was tacit approval by the Government in the selection process and the appointments being made by the University which were later endorsed by the Government vide Ext.P5. We, therefore do not find any merit in the challenge against the appointment made by the University in 2000 based on Section 14(2)(h) of the Act. Consequently we dismiss these writ petitions. ## **C.N.Ramachandran Nair, Judge** ## **C.K.Abdul Rehim Judge** sj