Geetha Sherin P.J. v. University of Calicut and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944** **WP(C) NO. 21235 OF 2019** ## **PETITIONER:** **GEETHA SHERIN P.J., AGED 50 YEARS, COMPUTER ASSISTANT GRADE-I, WEB CENTRE, TAGORE NIKETAN, CALICUT UNIVERSITY P.O,** **THENHIPALAM, MALAPPURAM DISTRICT, PIN-673635.** **BY ADVS. V.VARGHESE SMT.L.ANNAPOORNA** ## **RESPONDENTS:** - **1 UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O, THENHIPALAM, PIN-673635, REPRESENTED BY ITS REGISTRAR.** - **2 THE REGISTRAR, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O, THENHIPALAM, PIN-673635.** - **3 JAYANTHI ELAVANA, COMPUTER ASSISTANT GRADE-I, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O, THENHIPALAM, PIN-673635.** - **4 SIJI K.M, COMPUTER ASSISTANT GRADE-I, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O, THENHIPALAM, PIN-673635.** - **5 GEETHA K, COMPUTER ASSISTANT GRADE-I, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O, THENHIPALAM, PIN-673635.** - **6 SHEENA K,** - **COMPUTER ASSISTANT GRADE-I, UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O, THENHIPALAM, PIN-673635.** **BY ADVS. SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY** **WP(C) NO. 21235 OF 2019** **-2-** **SRI.T.B.HOOD SMT.SHAMEENA SALAHUDHEEN SMT.M.ISHA SRI.AMAL KASHA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C) NO. 21235 OF 2019** **-3-** ## **JUDGMENT** The petitioner calls into question Ext.P7 order of the University of Calicut, whereby, her request for reassignment of seniority has been rejected on various grounds. 2. The facts, as are essential for consideration of this case, are to the effect that petitioner was working in one of the posts which was included in Class III in the services of the Calicut University and she applied for being promoted to the post of Lower Division Typist (admittedly re-designated as Computer Assistant (Grade II)), as per Ext.P10 - ‘The Calicut University First Ordinances, 1970’ ((hereinafter referred to as ‘ordinances’ for short). **WP(C) NO. 21235 OF 2019** **-4-** 3. The petitioner says that, however, instead of promoting her, she was initially subjected to a Proficiency Test and that, on the allegation that she did not acquire the minimum benchmark, she was asked to apply for it again, during which process, she was found to be qualified. She alleges that, however, when the order of promotion was, thereafter, issued by the University – a copy of which has been produced on record as Ext.P1 – she was placed junior to the party respondents, solely for the reason that she had cleared the Proficiency Test later than them. 4. The petitioner contends that the afore is illegal and unlawful because, the ‘Ordinances’ mandate that the post of Computer Assistant – Grade II be filled up by promotion alone from among the employees of Classes III and IV, who possess the minimum qualification **WP(C) NO. 21235 OF 2019** **-5-** |for direct recruitment; and that, therefore,|for direct recruitment; and that, therefore,| |---|---| |since<br>she<br>concededly<br>had<br>all|such| |qualifications, her seniority could not|have| |been upset. She says that she, therefore,|| |approached<br>the<br>University<br>through|a| |representation made in the year 2018 and|that| |when it was not considered, obtained Ext.P6|| |judgment, whereby, same was directed to|be| |considered and disposed of after hearing|her.| |She says that, in spite of this, Ext.P7 has|been| |issued by the University merely saying that|the| |Vice Chancellor had directed not to reconsider|| |the matter for refixation of seniority. She|thus| |prays that Ext.P7 be set aside and|the| University be directed to reassign seniority to her as per her rightful place. – 5. Sri.V.Varghese learned counsel appearing for the petitioner, further expatiated the case of his client, pointing out that when ## **WP(C) NO. 21235 OF 2019** **-6-** the ‘Ordinances’ provided for promotion from among the employees of Classes III and IV with the minimum qualification for direct recruitment, and when his client concededly had those, the conduct of Proficiency Test could not have been for the purpose of disturbing seniority, but, at the best, for finding out if a person was minimally suitable for promotion. His specific argument was that when a person was found to be suitable for promotion based on such a Test, then seniority ought to have been fixed adopting the same principles as are available in Rule 28(b)(i) of the Kerala State & Subordinate Service Rules (KS & SSR), but that instead of doing so, though it was incumbent upon the University to adopt those principles, going by Statute No.2 of Chapter V of their First Statutes, they have chosen to assign seniority merely based on the date on which the candidate **WP(C) NO. 21235 OF 2019** **-7-** cleared the Proficiency Test. He thus reiteratingly prayed that Ext.P7 be set aside. 6. Sri.P.C.Sasidharan – learned Standing Counsel for the University of Calicut, in refutation to the afore contentions, argued that when there are multiple streams of employees competing for the same post - either by promotion or by transfer appointment - it was incumbent on his client to have fixed a reasonable criteria for assessment, which they did through the resolution dated 17.05.2015 - a copy of which has been produced on record as Ext.P9. He pointed out that unless there was a Proficiency Test conducted, it would not have been possible to identify those persons who are eligible for being promoted, because the post in question is a technical one, while many of the candidates had been working as Sweepers and such other without any connection to it in the past. ## **WP(C) NO. 21235 OF 2019** **-8-** He argued that, therefore, when the petitioner voluntarily took the Test, not once but twice, she cannot now turn around and say that her seniority cannot be fixed on the basis of the merit therein and thus prayed that this writ petition be dismissed. 7. Sri.T.B.Hood – learned counsel appearing for the party respondents, argued that this writ petition is not maintainable, because the petitioner has chosen to challenge Ext.P1 order dated 28.07.2015, only through this writ petition filed on 02.08.2019. He contended that, therefore, the principles of “Sit Back Theory”, as expounded by the Hon'ble Supreme Court in various judgments, including in _**Union of India and Others v**_ . _**Tarsem Singh**_ [(2008) 8 SCC 648] and that of a Full Bench of this Court in _**Pavithran v. State of Kerala**_ [2009 (4) KLT 20], would stand against the petitioner from claiming ## **WP(C) NO. 21235 OF 2019** **==> picture [22 x 9] intentionally omitted <==** any relief at this point of time. 8. After saying as afore, on the merits of the matter, Sri.T.B.Hood argued that petitioner is estopped from challenging Ext.P1 when she was fully aware that all the candidates had gone through a Proficiency Test, including herself; and that a Rank List had also been published by the University – a copy of which has been produced by his clients, along with their counter affidavit, as Ext.R3(b). 9. Sri.T.B.Hood pointed out that, in the said list, candidates have been ranked in terms of the date on which they took the Proficiency Test and on the marks obtained by them – as has also been clarified by the University in their counter pleadings – and therefore, that petitioner cannot now turn around to assail to the seniority assigned on the ground that the ## **WP(C) NO. 21235 OF 2019** **==> picture [30 x 9] intentionally omitted <==** principles of Rule 28(b)(i) of the 'KS & SSR' ought to have been applied. He thus prayed that this writ petition be dismissed. 10. Smt.Shameena Salahudeen – learned counsel for the 6[th] respondent, argued in tandem with the contentions of the petitioner, explaining that a Proficiency Test, not being an essential qualification as per the Ordinance, could not have been used to rank the candidates, even if the merit in it has been assessed. She added that, in fact, Ext.R1(b) rank list would show that it is the date of the Proficiency Test which has been given primacy by the University; and therefore, that other party respondents could not have been allowed to steal a march over her client, who is admittedly senior to them in the original post. She thus prayed that this writ petition be allowed. ## **WP(C) NO. 21235 OF 2019** **-11-** 11. The rival positions of the parties being so recorded, it is obvious that the only question to be decided is how promotions ought to be effected by the University in the post of Computer Assistant (Grade II) and the manner of assignment of seniority of the various classes of persons who applied for it. 12. This is crucial because the 'Ordinances' indisputably and incontestably mandate that the post of Computer Assistant - Grade II be filled up by direct recruitment or by promotion. When it comes to promotion, it then further stipulates that it shall be done from among employees of Classes III and IV, who possesses the minimum qualification for direct recruitment. 13. It is without doubt and expressly admitted that petitioner had all the ## **WP(C) NO. 21235 OF 2019** **-12-** qualifications, prescribed for direct recruitment. 14. However, since many of the candidates, occupying Classes III and IV positions in the University, may not have had connection with the technical post of Computer Assistant - Grade II, it is then decided that a Proficiency Test be conducted and this is available from Ext.P9 Minutes of its Syndicate held on 17.01.2015. The afore Minutes reads as under: “ _Resolved to permit category change/promotion as LD Typist to class III & IV employees (Group C&D) who possess minimum qualification for direct recruitment as per Calicut University First Ordinances 1978 and also to conduct a Proficiency Test for such employees_ .” 15. It is thus luculent from the afore extracted Minutes that the University only decided to conduct a Proficiency Test for all ## **WP(C) NO. 21235 OF 2019** **-13-** candidates, but without mandating it to be a selection test. What was intended by the Syndicate was to verify whether the candidates had at least the minimum proficiency to be a Computer Assistant - Grade II; and to that extent, I cannot find fault with them for having done so. 16. This is also because the petitioner did not challenge Ext.P9 at any point of time, but participated in the Proficiency Test, as rightly argued by Sri.P.C.Sasidharan, not once, but twice. 17. Going by the admitted facts, the petitioner did not qualify in the first Proficiency Test; but did so, in the second one held on 07.07.2015. However, by then, the first two among the party respondents cleared the said test on 16.05.2015. ## **WP(C) NO. 21235 OF 2019** **-14-** 18. This is the genesis of the controversy in this case, because the University brought out Ext.R1(b) Rank List, including the candidates as per their marks in the Proficiency Test and the date on which they cleared it. 19. As rightly argued by Sri.V.Varghese – learned counsel for the petitioner, the 'Ordinances' do not provide for any Proficiency Test or for a qualifying examination. Obviously, therefore, the Proficiency Test could have been only used as a method of elimination, or in other words, to find out whether the candidate had minimum eligibility to be promoted – without answering so affirmatively at this stage, since the parties may have contrary contentions to this also. 20. All I am saying is that, at the best, the Proficiency Test could have been used to ## **WP(C) NO. 21235 OF 2019** **-15-** assess proficiency of the candidates and nothing more; and if they were so found, then to list them in seniority, according to the principles that govern the field. 21. The question now arises is as to which Rules will apply for the purpose of fixing seniority of candidates who come from Classes III and IV posts, and who are then granted promotion to the post of Computer Assistant - Grade II. 22. While the petitioner asserts that the principles of 'KS & SSR' should have been applied; the University says that they are not applicable to them and therefore, that they were constrained to incorporate and adopt a new criteria for such purpose. 23. I am afraid that the afore stand of the University cannot obtain imprimatur in law ## **WP(C) NO. 21235 OF 2019** **-16-** immediately, because the principles relating to the assignment of seniority are well enshrined; and if not, it ought to had been then adopted from analogous provisions, particularly when Statute 2 of Chapter IV of the First Statutes of the Calicut University prescribes such an adoption. 24. That said, however, I do not propose to answer these issues at the first instance conclusively in this judgment, because am of the certain view that University must hear all parties and take a decision in terms of law and as per the statutory Scheme. 25. However, before I can declare so, I must certainly answer the arguments of Sri.T.B.Hood on the question of “Sit Back Theory”. For this purpose, a glance through the essential facts may require to be done again. ## **WP(C) NO. 21235 OF 2019** **-17-** 26. No doubt, Ext.P1 order was issued on 28.07.2015. The petitioner appears to have filed her objections to it, through representation dated 09.07.2018 – a copy of which is on record as Ext.P5. When the said representation was not considered, she obtained Ext.P6 judgment on 07.08.2018, in which, a learned Judge of this Court directed the competent Authority of the University to consider the same and take a decision on it. At that stage, this Court is unable to find any reference - even a contention by any person - that the representation of the petitioner was belated or hit by the 'Sit Back' doctrine. 27. Nevertheless the above and assuming that there is merit in the contentions of Sri.T.B.Hood, this Court will have to now consider whether the alleged delay on the part of the petitioner can be found fatal. For this ## **WP(C) NO. 21235 OF 2019** **-18-** purpose, one will have to certainly consider the judgments of the Hon'ble Supreme Court in _**Kuldip Chand v.Union of India and Others**_ [(1995) 5 SCC 680] and _**Doval v.Chief Secretary, U.P.**_ [(1984) 4 SCC 329]. 28. In the first among the afore two judgments, the Hon'ble Supreme Court took note of the allegations of delay in claiming seniority and observations as in paragraphs 4 and 5 were made, which are extracted as under: _“4. It is next contended by Mr. M. M. Kashyap learned counsel for the appellant, that Ashok Kumar disputed the correctness of the seniority list made on 23-12-1982 in his representations dated 10-1-1983 and 1-8-1983 which were duly considered and rejected. He allowed it to become final as he did not challenge the same till post of accountant became vacant. When it was rejected, he filed the writ petition in the High Court. There is a considerable delay in claiming his seniority over the appellant. It is true that the seniority list was prepared as early as on 23-12-1982 but no vacancy had arisen thereafter 19 and, therefore, the mere rejection of the claim for seniority does not disentitle him to claim his seniority over the appellant_ **WP(C) NO. 21235 OF 2019** **==> picture [30 x 9] intentionally omitted <==** _for consideration by the respondent - Union._ _5. When the aforesaid facts are taken into consideration, it would be obvious that the preparation of seniority list per se was illegal. Therefore, the mere fact that he did not challenge the seniority list, which was illegally prepared, till he was aggrieved for non consideration of the claim to the posts of accountant, his legitimate right to be considered cannot be denied. Under these circumstances, the delay is of no consequence for considering the claim of Ashok Kumar for the post of accountant.”_ _29._ In _**Doval**_ (supra) again, in a situation where there was an allegation of delay made against the petitioner therein, the Hon'ble Supreme Court held that when such allegations are made against a person who belongs to the lower echelons of service, it cannot be thrust against him/her “ _since it is not difficult to visualize that they may find it extremely_ _difficult to rush to the court_ .” ## **WP(C) NO. 21235 OF 2019** **-20-** _30._ The afore observations of the Hon'ble Supreme Court are available in paragraph 16 of the said judgment, which is also extracted for easy reference, as under: “ _16. A grievances was made that the petitioners have moved this Court after a long unexplained delay and the Court should not grant any relief to them. It was pointed to that the provision seniority list was drawn up on March 22, 1971 and the petitions have been filed in the years 1983. The respondents therefore submitted that the Court should throw out the petitions on the ground of delay, latches and acquiescence. It was said that promotions granted on the basis of impugned seniority list were not questioned by the petitioners and they have acquiesced into it. We are not disposed to accede to this request because respondent 1 to 3 have not finalised the seniority list for a period of more than 12 years and are operating the same for further promotion to the utter disadvantage of the petitioners. Petitioners went on making representations after representations which did not yield any response, reply relief. Coupled with this is the fact that the petitioners belong to the lower echelons of service and it is not difficult to visualise that they may find it extremely difficult to rush to the court. Therefore, the contention must be rejected“_ ## **WP(C) NO. 21235 OF 2019** **-21-** 31. In the case at hand _,_ it is without dispute that the petitioner entered as a Parttime Sweeper and was then promoted as a Clerical Assistant, as she was at the time when she applied for a further promotion as Computer Assistant - Grade II. Her position certainly, therefore, comes within the conspectus of the situation as noticed by the Hon'ble Supreme Court in _**Doval**_ (supra); and in any event, I do not think that, even if the arguments of the party respondents are to be accepted, the alleged delay of nearly two years and ten months, before Ext.P5 representation had been made, can defeat her legitimate rights. Of course, the petitioner has a case that her first representation was not Ext.P5, but one dated 16.05.2018, which is referred to by the University in Ext.P3. ## **WP(C) NO. 21235 OF 2019** **-22-** 32. Added to this, the fact that, in Ext.P6 judgment, the specific direction of this Court was that the representation be disposed of on its merits, would certainly inure to the petitioner of having her contentions decided in law, rather being rejected citing delay. In fact, the University has done so through Ext.P7, which is now impugned by the petitioner. 33. The afore contentions being so answered, what now remains for this Court is to consider in what manner the University must be ordered to reconsider the issue. 34. As I have already said above, the only reason why the University thought of a Proficiency Test - even according to their learned Standing Counsel – Sri.P.C.Sasidharan - is that candidates from various classes were being considered for the same post. As already ## **WP(C) NO. 21235 OF 2019** **==> picture [30 x 9] intentionally omitted <==** approved by this Court in the forgoing paragraphs, the University perhaps may have done so to verify whether a candidate is competent to function in the post in question; but the vital question is whether the ranking in the said Proficiency Test, or the date on which it was cleared, could be used as a criteria for such purpose. 35. Going by the 'Ordinances', all employees in Classes III and IV, who had the essential qualification for direct recruitment, obtained a right to be considered for promotion; and at that stage, the University should certainly have fixed seniority in terms of acceptable and tenable forensic basis. This concededly had not been done. 36. In the afore circumstances, I am left without doubt that Ext.P7 cannot find my favour, ## **WP(C) NO. 21235 OF 2019** **-24-** especially when it does not answer the petitioner's contention in any manner, but merely says that the Vice Chancellor had taken a decision not to review the earlier seniority, in spite of the directions in Ext.P6 judgment. Resultantly, this writ petition is allowed and Ext.P7 is set aside; with a consequential direction to the competent Authority of the University to hear the petitioner, as also the party respondents, and take a fresh decision on Ext.P5 representation, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. ## **Sd/-** **DEVAN RAMACHANDRAN JUDGE** rr/akv ## **WP(C) NO. 21235 OF 2019** ## **-25-** ## **APPENDIX OF WP(C) 21235/2019** ## **PETITIONER EXHIBITS** - EXHIBIT P1 TRUE COPY OF THE UNIVERSITY ORDER NO.8235/2015/ADMN DATED 28.07.2015. - EXHIBIT P2 TRUE COPY OF THE UNIVERSITY ORDER NO.5358/2018/ADMN DATED 02.05.2018. - EXHIBIT P3 TRUE COPY OF THE UNIVERSITY MEMO NO.17229/AD-E-ASST-3/2014/CU DATED 27.06.2018. - EXHIBIT P4 TRUE COPY OF THE UNIVERSITY ORDER NO.7762/ADMN DATED 28.06.2018. - EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 09.07.2018 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. - EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 07.08.2018 IN WP(c) 26795/2018 OF THEIS HON'BLE COURT. - EXHIBIT P7 TRUE COPY OF THE U.O.NO.13031/2018/ADMN DATED 07.11.2018. - EXHIBIT P8 TRUE COPY OF THE U.O.NO.5785/2019/ADMN DATED 04.05.2019. - EXHIBIT P9 TRUE COPY OF THE MINUTES OF THE MEETING OF THE SYNDICATE HELD ON 17.01.2015. - EXHIBIT P10 TRUE COPY OF THE RELEVANT EXTRACT OF THE CALICUT UNIVERSITY FIRST ORDINANCES 1978. - EXHIBIT P11 TRUE COPY OF THE COMMON JUDGMENT DATED ## **WP(C) NO. 21235 OF 2019** **-26-** 20/9/2012 WITH THE CAUSE TITLE OF WPC NO.28344/2011 EXHIBIT P12 TRUE COPY OF THE UNIVERSITY ORDER NO.1881/2013/CU DATED 01.06.2013. ## **RESPONDENT EXHIBITS** EXHIBIT R3(a) TRUE COPY OF THE MEMO DATED 15/5/2015 ISSUED TO THE 5TH RESPONDENT. EXHIBIT R3(b) TRUE COPY OF THE RANKED LIST PUBLISHED BY THE UNIVERSITY ON 22/7/2015.