Jamsheed P.T. and K. Sajith v. University of Calicut and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **MONDAY, THE 21ST DAY OF MAY 2012/31ST VAISAKHA 1934** ## **WP(C).No. 12037 of 2009 (Y) ---------------------------** **PETITIONER(S): --------------------------** **1. JAMSHEED.P.T., AGED 27 YEARS, S/O.ABDULLA, PANDARATHODI HOUSE, MAITHRA (P.O), AREAKOSE (VIA), MALAPPURAM DISTRICT, PIN-673 639.** **2. K.SAJITH, KOORIKKAT HOUSE, AMARAMBALAM SOUTH (P.O), (VIA), VANIYAMBALAM-679 339.** **BY ADVS.SRI.P.K.IBRAHIM SRI.THOMSTINE K.AUGUSTINE SRI.C.N.GOPAKUMAR SRI.SHAKKIR JAMEEL V.S** **RESPONDENT(S):** - **----------------------------** **1. THE UNIVERSITY OF CALICUT,REPRESENTED BY ITS REGISTRAR, THENHIPALAM,MALAPPURAM DISTRICT.** **2. THE VICE CHANCELLOR, UNIVERSITY OF** - **CALICUT, THENHIPALAM, MALAPPURAM DISTRICT.** **3. SYNDICATE, UNIVERSITY OF CALICUT, REPRESENTED BY ITS CHAIRMAN, THENHIPALAM, MALAPPURAM DISTRICT.** ## ***ADDL.R4 & R5 IMPLEADED** - ***R4: SAJI SRAMBIKKAL,KUNNUMAL HOUSE, P.O.MUKKOM, NEAR M.H.S., KOZHIKODE DISTRICT-673 602.** - ***R5: JAYAN.P.,'HARISREE', PALAYIL, KOLAKKATTUCHALI.P.O., CHELEMBRA, MALAPPURAM DISTRICT-673 634.** - ***ADDL.R4 & R5 IMPLEADED VIDE ORDER DATED 10/2/2010 IN I.A.NO.14367/2009** **R1 TO R3 BY ADV. SRI.SANTHOSH MATHEW,SC,CALICUTY UNIVERSSITY SRI.P.C.SASIDHARAN, SC, CALICUT UTY. R4 & R5 BY ADV. SRI.N.SUGATHAN** **SMT.VARSHA BHASKAR SRI.S.PRASANTH (AYYAPPANKAVU)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/04/2012, ALONG WITH WPC.NO. 30707/2011, THE COURT ON 21/05/2012 DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.12037/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE JUDGMENT IN W.A.NO.1283/07 DATED 16/3/09 OF THIS HON'BLE COURT.** - **P2 COPY OF THE NOTIFICATION NO.AD.A3/18635/01 DATED 3/9/03 ISSUED BY THE 1ST RESPONDENT.** - **P3 COPY OF THE S.S.L.C CERTIFICATE THE NATIONAL TRADE CERTIFICATE FOR HAVING PASSED ITI(ELECTRICIAN), THE CERTIFICATE OF COMPETENCY FOR WIREMAN, TWO CERTIFICATES OF EXPERIENCE FROM 21/7/01 TO 20/7/02 AND 22/7/02 TO 20/9/03 OF THE 1ST PETITIONER.** - **P4 COPY OF THE S.S.L.C. CERTIFICATE,NATIONAL TRADE CERTIFICATE PERMIT FOR ELECTRICAL WIREMAN AND EXPERIENCE CERTIFICATE ISSUED BY THE UNIVERSITY OF CALICUT AS PAID APPRENTICE AND SRI .C.K.MOHAMMED IQBAL, ELECTRICAL CONTRACTOR AND CONSULTANT OF THE 2ND PETITIONER.** - **P5 COPY OF THE JUDGMENT DATED 3/3/06 IN WP(C)NOS.24366/05 AND 32085/05 OF THIS HON'BLE COURT.** - **P6 COPY OF THE RANK LIST DATED 22/5/06 PUBLISHED BY THE UNIVERSITY.** - **P7(A) COPY OF THE NEWS ITEM DATED 23/5/06 APPEARED IN MALAYALA MANORAMA DAILY.** - **P7(B) COPY OF THE NEWS ITEM DATED 24/5/06 APPEARED IN MATHRUBHOOMI DAILY.** - **P8 COPY OF THE COUNTER AFFIDAVIT DATED 26/6/06 FILED BY THE UNIVERSITY IN WP(C)NO.14625/06.** - **P9 COPY OF THE COMMON JUDGMENT DATED 19/7/06 IN WP(C)NOS.14625/06 AND 13734/06 OF THIS HON'BLE COURT.** - **P10 COPY OF THE G.O.(MS)NO.6/2006/H.EDN DATED 5/1/06** - **P11 COPY OF THE NOTIFICATION NO.14419/LEG.UNI.3/2006/LAW DATED 27/7/06 ISSUED BY THE GOVERNOR.** - **P12 COPY OF THE G.O.(MS)NO.85/2006/H.EDN DATED 28/7/06.** - **P13 COPY OF THE EXTRACT OF THE URGENT ITEM NO.2006.400 OF THE MINUTES OF THE MEETING OF THE SYNDICATE DATED 13/12/06.** - **P14 COPY OF THE ORDER NO.AD.A3/6657/06 DATED 10/1/07 ISSUED BY THE RESPONDENT UNIVERSITY.** - **P15 COPY OF THE PETITION DATED 17/12/06 IN WP(C) 14625/05 FILED FOR EXTENSION OF TIME BY THE RESPONDENTS.** - **P16 COPY OF THE ORDER NO.AD.A3/6657/06 DATED 23/1/07 ISSUED BY THE RESPONDENT UNIVERSITY.** **P17 COPY OF THE ORDER IN C.C.C.NO.74/07 DATED 14/6/07 OF THIS HON'BLE COURT** **2/-** **-2-** ## **WP(C)NO.12037/2009** ## **RESPONDENT'S EXHIBITS:** - **R1(A) COPY OF THE EXTRACT OF THE MINUTES OF THE SYNDICATE MEETING HELD ON 13/12/2006.** - **R1(B) COPY OF THE CERTIFICATE PRODUCED BY THE 1ST PETITIONER TO PROVE HIS EXPERIENCE WITH THE KSEB.** - **R1(C) COPY OF THE CERTIFICATE PRODUCED BY THE 1ST PETITIONER TO PROVE HIS EXPERIENCE WITH THE KSEB.** - **R1(D) COPY OF THE EXPERIENCE CERITICATE DATED 27/4/1999 PRODUCED BY THE 2ND PETITIONER.** - **R1(E) COPY OF THE EXPERIENCE CERTIFICATE DATED 25/9/2003 PRODUCED BY THE 2ND PETITIONER.** - **R4(A) COPY OF THE NATIONAL TRADE CERTIFICATE IN TRADE IN ELECTRICIAN ISSUED BY THE STATE COUNCIL FOR VOCATIONAL TRAINING.** - **R4(B) COPY OF THE CERTIFICATE DATED 10/6/1997 ISSUED BY GRASIM INDUSTRIES LTD, MAVOOR.** - **R4(C) COPY OF THE REPORT OF THE STANDING COMMITTEE ON STAFF.** - **R4(D) COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF THE MEETING OF THE SYNDICATE HELD ON 13/12/2006.** - **R4(E) COPY OF THE ORDER DATED 10/1/2007 ISSUED BY THE UNIVERSITY OF CALICUT.** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **`T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.12037/2009-Y & 30707/2011-K ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 21[st] day of May, 2012`** ## **`J U D G M E N T`** In these two writ petitions identical reliefs have been sought for. Petitioners are mainly seeking for a direction to the University to operate the rank list published for appointment to the post of Electricity Workers. 2. W.P.(C).No.12037/2009 is treated as the main case and the facts and other materials are discussed as stated therein. 3. Both the petitioners are applicants to the said post. The notification was published on 03/09/2003 as Ext.P2. The qualifications required are: (a) must be able to read and write Malayalam; the minimum educational qualification is Std.VIII; the candidate should have Wireman Licence and; the experience qualification required is the following:- (b)At least one year experience as NMR or 2 years continuous experience as CLR in KSEB/Electricity Wing of PWD or in any of the similar quasi Government concern or 4 years experience in construction and maintenance of over headline for distribution of power under any reputed firm. **W.P.(C). Nos.12037/2009 & 30707/2011** **-:2:-** 4. Petitioners contend that they are duly qualified and both of them have passed S.S.L.C and the details of their experience qualifications have been stated in paras.4 and 5 and the experience certificates have been produced as Exts.P3 and P4. 5. A total number of 560 applications were there and the Selection Committee found that 378 Applications were valid. A practical test was conducted between 09/07/2005 to 12/07/2005 under the supervision of a subject expert. The candidates were evaluated on the basis of their eligibility to climb a pole and identify electrical tools. 6. Thereafter, a shortlist of 104 candidates was published on 09/08/2005 and interview was conducted by Selection Committee on 18/08/2005 and 19/08/2005. The vacancies to be filled up are 10. 7. The selection processes were under challenge before this Court in W.P.(C).Nos.24366/2005 and 32085/2005 filed by three candidates, namely, the additional respondents 4 and 5 and another, and; in the light of the interim order, the selection was not finalised. The writ petitions were finally dismissed by Ext.P5 Judgment upholding the conduct of the practical test. Ext.P6 rank list was published thereafter on 22/05/2006. The petitioners have been included as rank Nos.1 and 2 respectively. **W.P.(C). Nos.12037/2009 & 30707/2011** **-:3:-** 8. Even though the Vice Chancellor directed the Registrar to issue appointment orders in terms of the ranking in Ext.P6 rank list and allied rules in the matter, according to the petitioners, the Calicut University Employees Union protested against the appointment of Electricity Workers from the rank list and the Registrar was _gheraod_ and forcibly the Vice Chancellor was prevented from proceeding in the matter which compelled him to pass an order to keep in abeyance the appointment of Electricity Workers from the rank list. Exts.P7(a) and P7(b) are news items which appeared in the newspapers about this incident at that point of time. These incidents resulted in the petitioners and four others approaching before this Court in W.P.(C).No.14625/2006. This writ petition was allowed and consequential directions were issued and W.P.(C).No.13734/2006 filed by another candidate challenging the selection list was dismissed. This is clear from the common Judgment Ext.P9. 9. It is the case of the petitioners that during that time, the powers of the Senate and the Syndicate were being discharged by the second respondent-Vice Chancellor by virtue of Ext.P10 Government Order and the rank list was approved by the second respondent exercising the powers of the Syndicate as empowered by the said order. After the change of **W.P.(C). Nos.12037/2009 & 30707/2011** ## **-:4:-** Government, a nominated Syndicate was constituted as empowered by Ext.P11 notification by Ext.P12 order. It is the case of the petitioners that the said Syndicate on 13/09/2006 directed the Standing Committee on staff to report on the selection of the Electricity Workers and they decided to undo the entire selection process by Ext.P13 minutes and, an University Order was issued as per Ext.P14 cancelling the rank list. Exts.P13 and P14 are challenged in the writ petition. 10. Heard the learned counsel for the petitioners Shri P.K.Ibrahim, Shri N.Sugathan learned counsel appearing for the additional respondents 4 and 5 and the learned Standing Counsel for the University Shri Santhosh Mathew. 11. Learned counsel for the petitioners submitted that the challenge against the selection process was repelled by this Court by Ext.P5 Judgment. The conduct of practical test was upheld by this Court. The said Judgment has become final. This Court had entered findings therein that the allegations have not been substantiated. 12. The counter affidavit filed by the University in W.P.(C). No.14625/2006 as per Ext.P8 reiterates that a proper selection was conducted and at that time the University had no plea against the Selection **W.P.(C). Nos.12037/2009 & 30707/2011** ## **-:5:-** process. The later Judgment Ext.P9 (Judgment in W.P.(C).No.14625/2006 and connected case) directed appointments on the basis of the rank list prepared and a time limit of one month from the date of receipt of a copy of the Judgment was fixed also. It is submitted by the learned counsel for the petitioners that a mandamus thus issued to the University cannot be unsettled by the Syndicate in the manner now attempted in Exts.P13 and P14. The University had not challenged any of the Judgments before this Court in appeal. The Writ Appeals filed against Ext.P9 are by the contesting respondents 4 and 5 herein which were disposed of by Ext.P1 Judgment. The said appellants could not substantiate their allegations before the learned Single Judge and in the Writ Appeal Judgment also no permission has been granted to them to reagitate their contentions. In Ext.P1 Judgment, the Division Bench allowed the writ petitioners to challenge the decision of the University to cancel the rank list independently and, accordingly, the present writ petition has been filed. 13. Learned counsel for the petitioners submits that the reason for cancellation of the rank list as discernible from Exts.P13 and P14 is that the selection committee has not conducted a separate test with regard to the knowledge of candidates in reading and writing English and Malayalam. It **W.P.(C). Nos.12037/2009 & 30707/2011** ## **-:6:-** is further submitted that the said reason is clearly one adopted to upset the rank list itself without any justification. Going by the relevant statute, it is upto the Selection Committee to fix the mode of conducting the test and interview. The decision of the Selection Committee to conduct the practical test was never varied by the Syndicate at any time before the publication of the rank list. After the publication of the rank list, the Syndicate cannot review the same. It is submitted that the minimum qualification prescribed is that the candidate should have studied upto Std.VIII. The knowledge of Malayalam and English will be there for such candidates and, therefore, a separate test is unnecessary. It is submitted therefore, that Exts.P13 and P14 cannot be supported on the merits of the matter also. It is also submitted that in the minutes Ext.P13, in the last paragraph, it is stated that there were complaints against the methodology adopted by the expert who conducted the practical test and such a reason cannot be adopted as the Judgments Exts.P5 and P9 repelled such pleas, already. This Court had rejected all such contentions in the said Judgments. It is therefore, submitted that the Judgments Exts.P5 and P9 bind the University as they are inter parties. Finally, the learned counsel for the petitioners submitted that the University has not sought any permission of this Court to reopen any matter even at the ## **W.P.(C). Nos.12037/2009 & 30707/2011** ## **-:7:-** time of pendency of the writ petition disposed of by Ext.P9 Judgment. Actually, the University had filed an Interlocutory Application seeking extension of time to comply with the Judgment as evident from Ext.P15. In that view of the matter also the stand taken later is not correct. 14. The learned counsel appearing for additional respondents 4 and 5 Shri N.Sugathan submitted that Ext.P9 Judgment was under challenge in the W.A.No.1398/2008 and, there was an interim order. Therefore, the plea raised by the learned counsel for the petitioners that Ext.P9 Judgment obliged the University to make appointment at that point of time cannot be supported. Learned counsel further submitted that the petitioners do not satisfy the experience qualification prescribed in the notification and my attention was invited to the certificates produced by them and the pleas raised by the additional respondents 4 and 5 in their counter affidavits. Learned counsel further submitted that the view taken by the Syndicate that there should be separate method to assess the ability of the candidate to write and read English and Malayalam cannot be said to be unreasonable. Ext.R4(c) is the report of the Standing Committee and Ext.R4(d) is the extract of the minutes of the Syndicate held on 13/12/2006. The learned counsel, therefore, submitted that the inclusion of the petitioners in the rank ## **W.P.(C). Nos.12037/2009 & 30707/2011** ## **-:8:-** list also cannot be supported. Reliance is placed on the Judgments of this Court in **Sheeja v. Principal Secretary** [ **2001 (3) KLT 775] and Deepthy Vijayakumar v. Joint Registrar [2008 (4) KLT 321** ] in that context. 15. A resume of the facts will show that the Judgment Ext.P5 considered the challenge against the conduct of the practical test. The selection process itself was under challenge in the two writ petitions. The main contention was that the practical test conducted by the Selection Committee was farcical which is clear from paras.3 and 4 of the Judgment. After considering the contentions of the parties, this Court rejected the contentions in para.8 onwards of the Judgment. It was specifically found in para.9 that apart from making certain vague and bald allegations about the mode of selection, the petitioners have not been able to substantiate any of their contentions raised in the writ petition. This Court was of the view that “any how, it is evident from the materials available on record that the respondents had conducted the selection process in a fair manner. No selection process can be allowed to be upset or nullified on the basis of certain unsubstantiated allegations”. This Court was of the view that the contentions were wholly untenable. **W.P.(C). Nos.12037/2009 & 30707/2011** ## **-:9:-** 16. Again, the very same contentions were considered by this Court in the Judgment in W.P.(C).Nos.13734 and 14625/2006, a copy of which is produced as Ext.P9. W.P.(C).No.13734/2006 was filed by a candidate who had participated in the selection process and was included as rank No.26. This Court relied upon the Judgment in Ext.P5 in para.6 and found that the petitioner in W.P.(C).No.13734/2006 was placed as serial No.26 in the rank list and after having participated in the selection process, he is not entitled to question its validity. It was also found that the allegations have not been substantiated. After noticing the various incidents which have taken place, the writ petitions were disposed of and a direction was issued in W.P.(C). No.14625/2006 that it will be open to the University to make appointments on the basis of Ext.P1 rank list produced therein and respondents were directed to take appropriate steps to make appointments as expeditiously as possible, at any rate, within a period of one month from the date of receipt of a copy of the Judgment. 17. A reading of Exts.P13 and P14 will show that there is no reference to the Judgments which are binding on the University. Those Judgments have not been challenged by the University by filing writ ## **W.P.(C). Nos.12037/2009 & 30707/2011** **-:10:-** appeals. The writ appeals were filed by the defeated petitioners in the writ petitions. 18. A reading of Ext.P8 which is the counter affidavit filed by the University in W.P.(C).No.14625/2006 will show that the University had taken a stand that the allegations raised against the selection process are not correct and have already been repelled by this Court. In para.7 it was averred that the existing vacancies to the post of Electricity Workers have to be filled up from the final select list published on 22/05/2006. Therefore, at no point of time, the University had made mention of anything about the requirement to have a test to assess the ability of a candidate to write and read English and Malayalam. 19. Thus, as far as the University is concerned, even while later writ petitions were pending, which were disposed of by Ext.P9 Judgment, they had no quarrel in the matter and the conduct of the selection process was strongly supported. It does not appear that even during the pendency of the writ appeal against Ext.P5 Judgment, the University had sought any permission from the Division Bench also to have a relook of the matter. W.A.No.1398/2008 was also disposed of by a separate Judgment. The above writ appeal was filed by the additional respondents 4 and 5 ## **W.P.(C). Nos.12037/2009 & 30707/2011** **-:11:-** challenging Ext.P5 Judgment in W.P.(C).No.24366/2005. The writ appeal was closed as infructuous in the light of the Judgment Ext.P1 in W.A.No.1283/2007. 20. Therefore, the learned counsel for the petitioners is right in submitting that as this Court had not permitted the University to reconsider the matter, the attempt now made to unsettle the rank list on a non existent ground is not supportable. 21. The question is whether the Syndicate could have prescribed new tests which were not found wanting by the Selection Committee. The Selection Committee itself was constituted under the relevant Statute, namely, Statute 8 of Part II of Chapter 4 of the Calicut University First Statutes, 1977. Statute 8 concerns recruitment to posts. For easy reference, the same is reproduced below: “Recruitment to posts shall be made on the basis of the recommendation made by a Selection Board consisting of the Vice-Chancellor or Pro-Vice-Chancellor as Chairman, Convener of the Standing Committee of the Syndicate on staff, and Convener of the Standing Committee of the Syndicate on Finance and two other members of the syndicate nominated by **W.P.(C). Nos.12037/2009 & 30707/2011** ## **-:12:-** the Vice-Chancellor from time to time. The Registrar shall be the Secretary to the Board. Quorum for the meeting of the Selection Board shall be three including the Chairman. The Board may conduct such tests as are deemed necessary to determine the suitability of candidates for appointment. It may also fix the rates of fee for admission to the tests. In making appointments by direct recruitment to posts of non-teaching staff in 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 will show that the selection board will consist of the Vice-Chancellor or Pro-Vice-Chancellor as Chairman, Convener of the Standing Committee of the Syndicate on staff, and Convener of the Standing Committee of the Syndicate on Finance and two other members of the syndicate nominated by the Vice-Chancellor from time to time. The Registrar shall be the Secretary to the Board. The important limb of the said Statute is the following which concerns with the conduct of the test. **W.P.(C). Nos.12037/2009 & 30707/2011** **-:13:-** “The Board may conduct such tests as are deemed necessary to determine the suitability of candidates for appointment.” Therefore, absolute freedom is given to the Board to prescribe and conduct test to assess the suitability of the candidates for appointment. The relevant files were produced by the learned Standing Counsel for the University. It shows that the Selection Committee was constituted under the Statute and the Selection Committee's minutes dated 28/04/2005 decided to conduct the practical test and the Vice Chancellor was authorised to conduct the same. Various procedures were taken thereafter to complete the selection process to finalise the rank list as revealed from the file itself and an outside expert was appointed. 22. Therefore, the decision of the Selection Committee only to conduct practical test to select candidates is within their domain, which is in tune with Statute 8. 23. Herein, going by Exts.P13 and P14, the Syndicate has assumed the powers of the Selection Board and has prescribed another test to assess the capabilities of the candidates to write and read Malayalam and English. The circumstances under which the same was found wanting is not clear from Ext.P13. Ext.R4(c) report of the Standing Committee do not refer to **W.P.(C). Nos.12037/2009 & 30707/2011** ## **-:14:-** any prior decision of the Selection Committee or other competent body prescribing such a test. The entire aspects are left to the Selection Board to decide going by Statute 8 and the Syndicate is the appointing authority. Therefore, they cannot have a role in the prescription of a test in the absence of any prescription conferring power to do so in the Statute. It is not the case that the Statutes prescribe conduct of a test to assess the capabilities of candidates to write and read English and Malayalam for appointment to the post of Electricity Workers. There is no such prescription in any of the Ordinances also. When we consider the decision of the Selection Board in the light of Statute 8, it is clear that they have not erred in taking a decision to conduct the practical test. 24. Therefore, the view taken by the Syndicate in Ext.P13 that there was absence of conduct of a test to assess the ability of the candidates to write and read English and Malayalam cannot be legally supported. Therefore, the same was not sufficient to cancel the shortlist. 25. The decision relied upon by Shri N.Sugathan, namely, **Sheeja's case** [ **2001(3) KLT 775]** and **Deepthy Vijayakumar's case [2008 (4) KLT 321]** are cases in which there were corrupt practices and deceitful behaviour were found, which affected the entire selection process. Herein **W.P.(C). Nos.12037/2009 & 30707/2011** **-:15:-** the situation is not identical and the principles stated therein will not help the additional respondents 4 and 5. 26. Actually, additional respondents 4 and 5 had filed W.P.(C). No.24366/2005 challenging the practical test itself. They were worsted by Ext.P5 Judgment in their contentions. The entire selection processes were held as legal and valid by this Court and all the allegations were found not correct. The Writ Appeal filed from the said Judgment, namely, W.A.No.1398/2006 was closed as infructuous. Therefore, the Judgment Ext.P5 has become final. In that view of the matter, the same is binding on the parties concerned including the University and the additional respondents 4 and 5. Therefore, the matter concluded by the said Judgment cannot be reagitated in this writ petition at the instance of additional respondents 4 and 5 or by the University. 27. As far as Ext.P9 Judgment is concerned, it can be seen that therein also one of the writ petitions, namely, W.P.(C).No.13734/2006 was filed challenging the selection process. This Court by relying upon Ext.P5 Judgment and after independently considering the contentions of the petitioner therein, dismissed the said writ petition. The same also therefore, will not help the contentions of the additional respondent 4 and 5. **W.P.(C). Nos.12037/2009 & 30707/2011** **-:16:-** 28. As far as W.P.(C).No.14625/2006 disposed of by Ext.P9 Judgment is concerned, the direction was to the University to make appointments from the rank list. The Writ Appeal from the said Judgment was disposed of by Ext.P1 in the light of the subsequent developments, namely, cancellation of the rank list. In para.4 of the Judgment, the Division Bench was of the view that the affected parties should challenge the decision of the University in appropriate independent proceedings and accordingly, the petitioners have filed the present writ petition. In para.5, it was held that the University cannot be compelled to implement Ext.P1 rank list unless the rank list was restored by appropriate proceedings by setting aside the decision of the University cancelling that. 29. The legal question which was directed to be considered by the Division Bench going by para.4 of the Judgment is the following: “.........When this Court issued a direction for implementation of an order whether that direction of this court can be got over by cancelling that order is a matter, which should be decided in appropriate proceedings, ........” 30. As already noticed, the University never sought permission even from the Division Bench during the pendency of the Writ Appeals for ## **W.P.(C). Nos.12037/2009 & 30707/2011** **-:17:-** taking such steps. No review petitions were also there from Exts.P5 and P9 Judgments by them. Therefore, the legal position will have to be assessed in that context also. 31. The learned counsel for the petitioner submitted that principles of estoppel will apply here and the directions cannot be got over by cancelling the rank list. It was submitted that the direction issued by this Court in Ext.P9 Judgment binds the University and the Judgment cannot be overruled by the University. Shri Sugathan, the learned counsel for the additional respondents 4 and 5 submitted that finality cannot be attached to Exts.P5 and P9 as the appeals have been pending. 32. In **Ishwar Dutt v. Land Acquisition Collector and another [(2005) 7 SCC 190]** , the Apex Court had examined a similar contention. Various principles have been discussed therein and the law on the principles of res judicata and estoppel have been discussed in the light of pronouncements of various Courts. Whether a direction issued by issuance of writ of mandamus could be got over by a subsequent action was also considered. ## **W.P.(C). Nos.12037/2009 & 30707/2011** **-:18:-** 33. The Supreme Court therein examined the different concepts like “cause of action estoppel” and “issue estoppel” and the principles were laid down in paras.18 and 24 thus: “The principle of res judicata is species of the principle of estoppel. When a proceeding based on a particular cause of action has attained finality, the principle of res judicata shall fully apply. Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been litigated between the same parties or their privies and having involved the same subjectmatter. In such a case, the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue. Here also bar is complete to relitigation but its operation can be thwarted under certain circumstances. The underlying principles upon which estoppel is based, public policy and justice have greater force in cause of action estoppel, the subject-matter of the two proceedings being identical, than they do in issue estoppel, where the subject-matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to **W.P.(C). Nos.12037/2009 & 30707/2011** ## **-:19:-** perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not.” It will show that when a cause of action in later proceedings is identical to that in the earlier proceedings, cause of action estoppel will arise. It was held that in the absence of any allegation of fraud or collusion, the bar is absolute in relation to all points decided. As far as the concept of “issue estoppel” is concerned, therein also it was held that the bar is complete to relitigation but it can be thwarted under certain circumstances only. These principles therefore, will have a bearing in a matter like this. The additional respondents 4 and 5 cannot therefore reagitate the matter afresh herein. Even in Ext.P1 Judgment of the Division Bench, they have not obtained any permission to reagitate the matter covered by the Judgments Exts.P5 and P9. They have chosen to support the decision of the Syndicate Ext.P13 and the learned counsel Shri N.Sugathan argued that the said decision is perfectly justified. Actually, want of a further test to assess the academic qualification was never raised by additional respondents 4 and 5 also before this Court, either when the writ petitions covered by Ext.P5 were pending or the writ petitions leading to Ext.P9 Judgment were pending. Therefore, they are estopped from raising such a plea in these proceedings, namely, the non **W.P.(C). Nos.12037/2009 & 30707/2011** **-:20:-** conduct of a test to assess the ability of the candidates to read and write English and Malayalam. In the counter affidavit they have again contended that the practical test conducted was a farce. Such a contention do not deserve any merit, in the light of the rejection of the very same contention raised by them by this Court in Ext.P5 Judgment as well as in Ext.P9 Judgment. 34. As far as the binding effect of mandamus is concerned, the Apex Court in **Ishwar Dutt's case [(2005) 7 SCC 190]** in paras.29 to 31 laid down the principles as follows: “A writ of mandamus is required to be obeyed unless a judgment is overruled or a legislation by way of validating statute is brought into force. If by reason of retrospective alteration of the factual or legal situation, the judgment is rendered erroneous, the remedy may be by way of appeal or review, but so long as the judgment stands, it cannot be disregarded or ignored and it must be obeyed” Even in a case of retrospective alteration of the factual or legal situation, the remedy may be by way of appeal or review. In Ext.P1 Judgment in the Writ Appeals, the Judgment Ext.P9 was not held as erroneous on the merits. W.A.No.1398/2006 from Ext.P5 Judgment was closed. Therefore, the ## **W.P.(C). Nos.12037/2009 & 30707/2011** ## **-:21:-** binding effect of a direction is clear. If the decision of the Syndicate Ext.P13 cannot survive, the rank list will have to be restored. 35. Learned counsel for the petitioners is right in submitting that the Syndicate should not have prescribed a new test as the Selection Board alone could have prescribed a suitable test for assessing the merit of the candidate. Herein, apart from the fact that the challenge against the selection processes have been repelled by this Court, thereafter, the University has proceeded further and has published the rank list also. It is only thereafter that Exts.P13 and P14 have been issued. Since the Syndicate is not the authority to prescribe the test, their decision with regard to non conduct of such a test also cannot survive. The specific empowerment to prescribe a test is on the Selection Board itself, under Statute 8, which confer them power to prescribe tests as are “deemed” necessary. This is quite important. Nobody had challenged or had a quarrel with the decision of the Selection Board. No provision conferring any power on the Syndicate to vary or sit in appeal over it was brought to my notice. Therefore, the basis of Exts.P13 and P14 is really erroneous and hence, are liable to be regarded as illegal. **W.P.(C). Nos.12037/2009 & 30707/2011** **-:22:-** 36. One of the other aspects raised by the learned counsel for the additional respondents 4 and 5 is that the petitioners are not having the required experience qualifications. Both sides have relied upon the respective documents in support of their claim. This is matter which requires consideration in tune with the experience qualification prescribed in the notification. At no point of time such an issue was raised before this Court by additional respondents 4 and 5 except in the counter affidavit filed by them. Since the contention is that the petitioners are not qualified, even though it is disputed by the learned counsel for the petitioners vehemently, I leave the matter for consideration of the University itself which is the competent authority to take a decision before making the appointment. 37. Therefore, the writ petition, W.P.(C).No.12037/2009 is allowed. Exts.P13 and P14 are quashed. The University will be free to make appointment to the post of Electricity Workers from the rank list Ext.P6. The allegations of additional respondents 4 and 5 that some of the candidates including the petitioners do not satisfy the experience qualification prescribed in the notification, will be examined by respondent Nos.1 to 3. The specific objections in the matter will be communicated by additional respondents 4 and 5 within three weeks to the University. The **W.P.(C). Nos.12037/2009 & 30707/2011** **-:23:-** University will consider various matters in terms of the certificates produced by the petitioners 1 and 2 (and other candidates if any, against whom similar objections, if any, are raised), any documents produced by additional respondents 4 and 5 and communicate their decision to additional respondents 4 and 5 within a further period of six weeks. The objections, if any, with regard to the want of qualifications will be specifically dealt with. Depending upon the outcome of the said decision, the University will be free to fill up the vacancies from the rank list Ext.P6 thereafter. 38. Petitioner in W.P.(C).No.307072/2011 seeks for a disposal of Ext.P8 representation. The direction as above will govern the same and the said writ petition is closed accordingly. No costs. ``` Sd/- ``` ``` (T.R. Ramachandran Nair, Judge.) ``` ## **`ms`**