Khadeeja E and Sajna M v University of Calicut and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN`** ``` FRIDAY, THE 8[TH] DAY OF JULY 2022 / 17TH ASHADHA, 1944 ``` ## **`WP(C) NO. 28561 OF 2021`** ## **`PETITIONERS:`** ``` 1KHADEEJA.E AGED 41 YEARS 'HAMD', CHERUVANNUR, PALATTIPPADAM ROAD, OPP GOVT. HSSS, CHERUVANNUR, KOLATHARA P.O., PIN-673 655. 2SAJNA M. AGED 49 YEARS 'SAVIDHAM', KOHINOOR, THENJIPALAM, MALAPPURAM-673 636. BY ADVS. M.P.SREEKRISHNAN A.MUHAMMED MUSTHAFA ``` ## **`RESPONDENTS:`** ``` 1UNIVERSITY OF CALICUT REPRESENTED BY ITS REGISTRAR, CALICUT UNIVERSITY P.O., MALAPPURAM-673 635. 2THE REGISTRAR UNIVERSITY OF CALICUT, CALICUT UNIVERSITY P.O., MALAPPURAM-673 635. 3SAJITH KUMAR T.C. AGED 47 YEARS KANNUVAYAL KUNIYIL (H), MADAPPALLY COLLEGE P.O., VATAKARA (VIA), KOZHIKODE-673 102. ``` ``` BY ADV SRI.P.C.SASIDHARAN, SC, CALICUT UNIVERSITY ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`WP(C) NO. 28561 OF 2021 2`** ## **JUDGMENT** The petitioners impugn Ext.P21 order on various grounds, but primarily that it has been issued in flagrant disregard to the directions of this Court in Ext.P12 judgment. 2. The petitioners contend that, in Ext.P12, a learned Judge of this Court, after holding that they are entitled to be granted the benefit of Category Change based on the options made, allowed them to make a request seeking seniority in the post of Assistants – being the category to which they exercised such option – on the basis of their earlier options. They say that the University was, thereupon, directed to consider such a request, after hearing them, as also any other person who may be interested, including the party respondents therein, within the time frame fixed. 3. The petitioners allege that, however, even though they preferred Exts.P13 and P14 requests before the University to grant them accommodation as Assistants from the date of their option, namely 23.09.2013 and 30.11.2013 respectively and to assign seniority to them in accordance with the provisions of the Calicut University First Ordinance 1978 (hereinafter referred to as ## **`WP(C) NO. 28561 OF 2021 3`** 'Ordinance' for short), reckoning the afore dates for such purpose, Ext.P21 has been issued granting them seniority only with effect from 08.12.2017, which is the date of Ext.P12 judgment. They say that no reasons have been stated in Ext.P12, in not acceding to the directions of this Court in Ext.P12; and therefore, that they have been constrained to approach this Court and seek that it be set aside. 4. The afore submissions of Sri.M.P.Sreekrishnan – learned Counsel for the petitioners, were answered by Sri.P.C.Sasidharan – learned Standing Counsel for the Calicut University, relying on the counter affidavit filed on behalf of respondents 1 and 2. The crux of his submissions was that, at the time when the petitioners made their options for a Category Change, such action was inhibited legally and therefore, that they could not have been then accommodated to the post of Assistant. He argued that they became entitled to the Category Change only consequent to the declarations and holdings of this Court in Ext.P12 judgment; and therefore, that the date of the said judgment; was taken to be the crucial one. He added that this is also because various other persons, including the petitioners, were asked to make their options subsequent to Ext.P12 and their ## **`WP(C) NO. 28561 OF 2021 4`** seniority was fixed based on the position in the original category. He then submitted that the precedent cited by the petitioners – namely, with respect to the benefits given to certain other persons in the year 2010 and in particular a certain Smt.Saira Bhanu – would be of no avail to them because such persons were given category change at the time when there was no restriction placed on the action by the University and consequently, there were no disputes with others relating to seniority. He submitted that the petitioners cannot take advantage of this fact because when a valid order had been issued creating an embargo against Category Change, no person would have applied for such benefit; and therefore, that merely because the petitioners made an option in spite of it, they cannot be given seniority based on their original options. He contented that this would grant the petitioners unfair advantage and that their cases have been considered and rejected through Ext.P21 validly. 5. I have evaluated the afore submissions and have also examined Ext.P21, which is the order issued by the University purportedly in compliance with the directions in Ext.P12 judgment. 6. As rightly argued by Sri.M.P.Sreekrishnan – learned ## **`WP(C) NO. 28561 OF 2021 5`** counsel for the petitioners, in Ext.P12 judgment, after finding that petitioners were entitled to Category Change, a learned Judge of this Court directed the University to consider their claim for seniority over the contesting respondents, who had submitted their options for category change much later than them. Obviously, the University was obligated to consider this in its proper perspective, but when one examines Ext.P21, it is luculent that no reasons have been stated by the Assistant Registrar who issued the said order, as to why the petitioners’ requests, as made in Exts.P13 and P14 seeking fixation of seniority from the date on which they made their options in the year 2013, have not been acceded to. 7. All which is stated in Ext.P21 is that the University issued notices to all the parties, including the petitioners and that the seniority of only one person - a certain Sri.Sajith Kumar T.C.,will be affected in fixing the _inter se_ seniority of the petitioners, who were the party respondents in Ext.P12 judgment. 8. It then goes on to say that the afore mentioned Sri.Sajith Kumar has raised an objection that he had obtained category change before the petitioners on 02.02.2017 and that, he along with a certain Sri.Vincy Theddeus, are senior to them in the feeder ## **`WP(C) NO. 28561 OF 2021 6`** category and hence that petitioners cannot be granted seniority over them. 9. Interestingly, after recording as afore, Ext.P21 order has granted the petitioners benefit of transfer to the post of Assistant, from the category of Computer Assistant, notionally with effect from 18.12.2017, which is the date on which Ext.P12 judgment had been issued. Even though the reasons for doing so have been sought to be explained in the counter affidavit filed before this Court, it is a fundamental principle of law, as has been well settled by the judgment of the Hon’ble Supreme Court in _**Mohinder Singh Gill v. Chief Election Commissioner**_ **[1978 (1) SCC 405],** that every order will have to be substantiated on the basis of the contents therein and not by subsequent pleadings, when litigations are launched against it. 10. As I have indicated above, the specific direction of this Court in Ext.P12 judgment was that University must consider the request of the petitioners, as voiced in Exts.P13 and P14, to assign the seniority based on their first options; but without doing so, Ext.P21 has been issued merely saying that they will be given the said benefit notionally with effect from 18.12.2017. ## **`WP(C) NO. 28561 OF 2021 7`** 11. Hence, whatever be the submissions that may be made at the Bar on the strength of the averments in the counter affidavit, I cannot find favour with Ext.P21, since it is silent on the most crucial aspects as were ordered by this Court. 12. I am, therefore, firm that University must reconsider the claims of the petitioners, adverting specifically to the directions in Ext.P12 judgment and taking into account Exts.P13 and P14 requests of the petitioners appositely. Resultantly, I allow this writ petition and set aside Ext.P21; however, clarifying that I have not answered the merits of the statements therein, except in the manner afore; with a consequential direction to the competent Authority of the University to reconsider Exts.P13 and P14, after hearing the petitioners, as also every other interested person; thus culminating in an appropriate new order and necessary action thereon as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment. I, however, clarify that I have not found affirmatively in favour of the petitioners in any manner and that their claims, as impelled in Exts.P13 and P14, must be considered by the University in the manner as ordered by this Court in Ext.P12, ## **`WP(C) NO. 28561 OF 2021 8`** leading to the afore resultant order. After I dictated this part of the judgment, Sri.M.P.Sreekrishnan – learned counsel for the petitioners, pointed out that every averment in the counter affidavit filed by the University has already been answered by this Court against them in Ext.P4 judgment. He submitted that, therefore, if this Court is inclined to direct reconsideration, then the specific observations and holdings in Ext.P4 must also be directed to be considered. It goes without saying that the impact of Ext.P4 will also be surely considered by the University while the afore exercise is completed and their views on the same will be reflected in the resultant order. **Sd/-** ## **`DEVAN RAMACHANDRAN`** ``` JUDGE ``` ``` MC/8.7 ``` ## **`WP(C) NO. 28561 OF 2021 9`** ## **`APPENDIX OF WP(C) 28561/2021`** |`PETITIONER EXHIBITS`|| |---|---| |`Exhibit P1`|`TRUE COPY OF THE REPRESENTATION DATED`| ||`23.9.2013.`| |`Exhibit P2`|`TRUE COPY OF THE REPRESENTATION, DATED`| ||`30.11.2013 AND ENGLISH TRANSLATION.`| |`Exhibit P3`|`A TRUE COPY OF THE INTERIM ORDER DATED,`| ||`20.3.2015 IN WPC 7738/2015.`| |`Exhibit P4`|`A TRUE COPY OF THE JUDGMENT DATED`| ||`1.3.2016 IN WPC 7738/2015.`| |`Exhibit P5`|`A TRUE COPY OF THE CIRCULAR CALLING OF`| ||`WILLINGNESS, DATED 12.1.2017.`| |`Exhibit P6`|`A TRUE COPY OF ORDER OF APPOINTMENT,`| ||`DATED 3.10.2016.`| |`Exhibit P7`|`A TRUE COPY OF THE NOTE TO THE SYNDICATE`| ||`ON THE BASIS OF EXHIBIT P6 WAS ISSUED`| ||`DATED 26.8.2016.`| |`Exhibit P8`|`A TRUE COPY OF THE NOTE TO SYNDICATE`| ||`DATED 18.10.2016.`| |`Exhibit P9`|`A TRUE COPY OF THE ORDER, DATED 2.2.2017.`| |`Exhibit P10`|`A TRUE COPY OF THE COMMUNICATION, DATED`| ||`23.12.2016 AND ENGLISH TRANSLATION.`| |`Exhibit P11`|`A TRUE COPY OF THE JUDGMENT, DATED`| ||`7.2.2017 IN COC 1756/16 IN WPC 7738/2015.`| |`Exhibit P12`|`A TRUE COPY OF THE JUDGMENT, DATED`| ||`18.12.2017 IN WPC 5902 OF 2017.`| |`Exhibit P13`|`A TRUE COPY OF THE COMMUNICATION, DATED`| ||`15.1.2018 BY THE IST PETITIONER.`| |`Exhibit P14`|`A TRUE COPY OF THE COMMUNICATION, DATED`| ||`15.1.2018 BY THE 2ND PETITIONER.`| |`Exhibit P15`|`A TRUE COPY OF THE JUDGMENT IN WA 1211 OF`| ||`2018, DATED 26.9.2019.`| |`Exhibit P16`|`A TRUE COPY OF ORDER GRANTING CATEGORY`| ||`CHANGE TO THE PETITIONERS, DATED`| ||`21.11.2019.`| |`Exhibit P17`|`A TRUE COPY OF THE CIRCULAR, DATED`| ||`29.11.2019.`| |`Exhibit P18`|`TRUE COPY OF THE REPRESENTATION, DATED`| ||`14.10.2019 GIVEN BY THE IST PETITIONER.`| |`Exhibit P19`|`TRUE COPY OF THE REPRESENTATION, DATED`| ||`13.12.2019 GIVEN BY THE 2ND PETITIONER.`| |`Exhibit P20`|`A TRUE COPY OF THE ORDER, DATED`| ||`22.6.2020.`| |`Exhibit P21`|`A TRUE COPY OF THE ORDER, DATED 8.4.2021.`| ## **`WP(C) NO. 28561 OF 2021 10`** ``` Exhibit P22A TRUE COPY OF THE JUDGMENT, DATED 15.9.2021 IN COC 1039 OF 2020. Exhibit P23A TRUE COPY OF THE ORDER U.O.NO.1881/2013/CU, DATED 1.6.2013. ```