Manoj Kumar C.P. and others v. Kannur University and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 WP(C).No. 17028 of 2007(B) -------------------------- PETITIONER: - ------------------ 1. MANOJ KUMAR C.P., AGED 36, - S/O.BALAKRIASHNAN, PAYATTUVALAPPIL HOUSE, KOYILANDI P.O., KOZHIKODE. 2. MEENAKUMARI. T.M., AGED 33 , - D/O.K.K.NANU, KARIYADANTAVIDA HOUSE, P.O.PALAYAD , THALASSERY. 3. ANITHA V.P., AGED 35, VALIYAPARAMBATH(H) - P.O.PAVAL, KODIYERI, KARAL STREET, THALASSERY. - BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI RESPONDENTS: ----------------------- 1. KANNUR UNIVERSITY, KANNUR UNIVERSITY PO, MANGATTPARAMBA, KANNUR REP. BY REGISTRAR. 2. STATE OF KERALA TO BE REPRESENTED BY PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. C.H.NOORJAHAN, RESIDING AT NADIRA, TEMPLE GATE, THALASSERY, KANNUR . (DATA ENTRY ASSISTANT ON CONTRACT BASIS, KANNUR UNIVERSITY). BY ADV. SRI.M.SASEENDRAN,SC,KANNUR UNIVERSITY GOVT.PLEADER SRI.A.J.VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2007, THE COURT ON 04/04/2008 DELIVERED THE FOLLOWING: APPENDIX (WP.17028/2007) EXT.P1: PHOTOCOPY OF NOTIFICATION DATED 2/8/99. EXT.P2: PHOTOCOPY OF M EMO DT. 7/10/2006 ISSUED TO PETITIONER NO.1. EXT.P2(A): DO. TO PETR.NO.2. EXT.P2(B):DO. TO PETR.3. EXT.P3: PHOTOCOPY OF AGREEMENT DT. 22/7/2006. EXT.P4: PHOTOCOPY OF JUDGMENT IN WP.9282/2006. EXT.P5: PHOTOCOPY OF EXTRACT OF MINUTES OF SYNDICATE MEETING DT. 31/10/2001. EXT.P6: PHOTOCOPY OF JUDGMENT IN WP.28435/06. EXT.P7: PHOTOCOPY OF REPORT PUBLISHED IN MATHRUBHUMI DT. 11/5/2007. EXT.P8: PHOTOCOPY OF REPORT IN CHANDRIKA DT. 13/5/2007. EXT.P8: PHOTOCOPY OF NOTE DT. 29/5/2007. EXT.P9: PHOTOCOPY OF JUDGMENT IN W.A.1451/06. RESPONDENTS' EXHIBITS: EXT.R3(A); TRUE COPY OF DEGREE CERTIFICATE DT. 28/9/95. EXT.R3(B): TRUE COPY OF CERTIFICATE IN P.G.COURSE DT. 25/11/1998. EXT.R3(C): TRUE COPY OF CERTIFICATE OF TYPEWRITING DT. 11/4/1991. EXT.R3(D): DO. IN MALAYALAM DT. 17/4/1993. EXT.R3(E): TRUE COPY OF ORDER OF UNIVERSITY DT. 23/8/2001. EXT.R3(F): TRUE COPY OF JUDGMENT IN OP.27806/2001 DT. 19/9/2001. EXT.R3(G): TRUE COPY FO MINUTES OF MEETING OF SYNDICATE DT. 23/12/2002. EXT.R3(H): TRUE COPY FO JUDGMENT IN OP.31195/02. EXT.R3(I): TRUE COPY OF JUDGMENT IN WP.9282/06 DT. 9/10/2006. EXT.R3(J): TRUE COPY OF INTERIM ORDER DT. 30/10/2006. EXT.R3(K): TRUE COPY FO JUDGMENT IN WQP.28435/06 DT. ¾/2007. **A.K. Basheer, J.** **- - - - - - - - - - - - - - - - - - - - - - - - -** **W.P (C) No. 17028 of 2007** ## **- - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of April, 2008. Judgment** Petitioners had applied for the post of Data Entry Assistant in Kannur University in response to Ext.P1 notification dated August 2, 1999. They had appeared for the written test in April 2005 along with other applicants. According to the petitioners they had passed the written test; but respondent No.3 had not. Petitioners were invited for interview which was scheduled to be held on October 31, 2006. But the interview was postponed. In the meanwhile, even before completing the selection process, the University is taking steps to regularise the services of respondent No.3 who had been working as Data Entry Assistant on contract basis. It is contended by the petitioners that the University is not justified in allowing respondent No.3 to continue in service on contract basis. More importantly, the attempt of the University to regularise the service of respondent No.3 is highly illegal and arbitrary. Petitioners therefore pray for issue of a writ of mandamus or such other appropriate writ, order or direction to the university “to dissuade from regularising respondent No.3” as Data Entry Assistant. There is a further prayer to issue a direction to the University to complete the process of direct recruitment as notified under Ext.P1. They further pray for a declaration that respondent No.3 is not entitled for regularisation on the strength of her contract engagement with effect from November 19, 1999. WP(c).17028/07 2 2. There is no dispute that Ext.P1 notification had been issued by the University in the year 1999. It is also not in dispute that petitioners had passed the written test, whereas respondent No.3 had not. It is also beyond controversy that respondent No.3 is a graduate in Mathematics and a Post Graduate Diploma holder in Computer Application (First Class) and has got additional qualifications like pass in typewriting higher, both English and Malayalam. 3. It is beyond controversy that respondent No.3 was appointed as a Data Entry Assistant in the University in November 1999. Her initial appointment was for 179 days on a consolidated monthly remuneration of Rs.3,000/- and she has been continuing in the said post with a short break of one or two days in between her termination and re-appointment. During 1999 several other employees were also engaged in the University on a temporary or contract basis. Since those employees had been working over a long period, the University had initially regularised the service of 12 such employees working in various categories. Respondent No.3 and one Sajesh Kottamprath, who was working as a Computer Operator, had filed O.P.No.27806/2001 before this Court praying for a direction to the University to consider their representation also for regularisation as had been done in the case of other contract employees. 4. Pursuant to the direction issued under Ext.R3(f) judgment of this court, the Syndicate of the University had resolved that the services of Sri.Sajesh Kottamprath and respondent No.3 could be regularised if there was a clear direction from the court. According to the University, the above decision was taken by the Syndicate on the WP(c).17028/07 3 basis of its earlier decision at its meeting held on May 24, 2001. Thereafter on December 23, 2002 the Syndicate resolved to keep the question of regularisation of these two employees in abeyance till O.P.No.31195/2002 and another writ petition filed by some other candidates who were aspiring to get appointment to certain other posts, were finally disposed of by this Court. Those cases were disposed of by this Court on March 28, 2006 as revealed from Ext.R3 (h). It was noticed by this Court that during the pendency of those writ petitions, the University had regularised the services of Sri.Sajesh. However the case of respondent No.3 was not considered because of the pendency of those cases. Therefore the writ petition was disposed of with a direction to the University to take an appropriate decision in the matter as directed by this Court in its earlier judgment in O.P.No.27806/01. (Ext.R3(f). 5. Since the University did not take any decision in the matter , respondent No.3 had again approached this Court in W.P.No.9282/2006.. By judgment dated October 9, 2006 a copy of which is on record as Ext.R3(i), this Court directed the University to take a decision on the representation submitted by respondent No.3 in tune with the earlier decision of the Syndicate dated October 31, 2001 to regularise the service of respondent No.3. 6. But it appears that in December 2006 the University had decided to conduct the interview for the candidates who had passed the written test. At that stage petitioner preferred W.P.No.28435/2006. This Court stayed the interview. Later, the above writ petition was disposed of through Ext.R3(k) judgment recording the submission WP(c).17028/07 4 made by the learned standing counsel for the University that further steps, if any, pursuant to the selection process undertaken by the University would be subject to the decision to be taken in the case of respondent No.3 (petitioner in the writ petition). Petitioners have preferred this writ petition shortly thereafter apprehending that University may regularise the services of respondent No.3 in tune with the decision of the Syndicate taken in the year 2001 and also in compliance with the direction issued by this Court in Ext.R3(h) and earlier judgments. 7. It may be true that petitioners had passed the written test. But as mentioned earlier, it is the undisputed fact that respondent No.3 had been working in the University eversince 1999, of course with a break of 2 or 3 days on completion of 179 days. The services of all other similarly placed employees had been regularised by the University. The issue of regularisation of the service of respondent No.3 remained on the back burner because of the pendency of some writ petitions before this Court, which were filed by some aspirants to various posts. The crucial aspect was that the Syndicate of the University, after considering the recommendation of the Standing Committee on Staff had resolved to regularise the service of such employees. 8. As noticed already, the case of regularisation of Sri.Sajesh Kottampram and respondent No.3 remained undecided though the Syndicate of the University had given a green signal to do so. In fact Sri.Sajesh Kottampram was given regular appointment during the pendency of the two writ petitions which were ultimately disposed of through Ext.R3(h) judgment. Therefore regularisation of respondent WP(c).17028/07 5 No.3 alone was kept pending. All the relevant factors in relation to the question of regularization of contract employees were considered by this Court in Ext.R3(h) judgment. It was noticed by this Court that the decision to regularise the service of the temporary or contract employees who have been working in the University for a long period was taken after an elaborate consideration of the entire aspects of the issue. 9. Respondent No.3 has been working in the University for nearly 9 years in the post of Data Entry Assistant. The Syndicate of the University had agreed in principle to regularise the service of similarly placed employees. As noted already, service of more than 13 such casual employees had been regularised by the Syndicate more than seven years ago. Those employees and respondent No.3 were similarly placed, the only difference being that selection process to the post of Data Entry Assistant had commenced in the meanwhile. Moreover, the issue relating to respondent No.3 was caught up in litigation before this Court, though not directly. The candidates who had applied for some other notified posts had challenged the decision of the University to regularise the service of the casual employees after issuing Ext.P1 notification. As mentioned above, the case of respondent No.3 alone remained unresolved due to some reasons beyond the control of respondent No.3. 10. In the peculiar facts and circumstances of the case, the petitioners cannot be heard to say that they are liable to be invited for interview in continuation of the selection process pursuant to Ext.P1 . Merely because the petitioners have passed the written test, it cannot WP(c).17028/07 6 be said that they are liable to be considered for selection compulsorily. The University, in my view, has to be given liberty to take a decision in the matter uninfluenced by any kind of pressure and also having due regard to the earlier decisions of the Syndicate in the case of other similarly placed temporary/contract employees who had served in the University for many years. 11. It is contended by the petitioners that regularisation of the service of respondent No.3, if permitted, will be in violation of the dictum laid down by the Supreme Court in Secretary, State of Karnataka & Ors. v. Umadevi and Ors. ((2006) 4 SCC 1). Learned counsel submits that the apex Court in unambiguous terms had deprecated the practice of regularisation of temporary/casual employees who gain entry in service through back door or on daily wages. But it may be noticed that their Lordships had distinguished irregular appointments from illegal appointments as explained in State of Mysore v. S.V.Narayanappa (AIR 1967 SC 1071) and R.N.Nanjundappa v. D.Thimmiah (1972 (1) SCC 409) etc. Their Lordships held that in the case of irregularly appointed casual or contractual employees, the position may be different, especially if the appointees had the requisite qualification to hold the post in question. 12. As mentioned earlier, there is no dispute that respondent No.3 has got the requisite qualifications prescribed for the post. She had been working in the University, albeit on temporary/contractual basis, eversince 1999. The services of all similarly placed employees have been regualrised by the Syndicate of the University as noticed earlier. Further, Kannur University was established and incorporated WP(c).17028/07 7 by Act 22/1996. Kannur University Act came into force on November 9, 1995. The First Statutes in relation to the University were framed on June 25, 1998 (G.O (Ms).69/98). The Ordinance was framed only in the year 2002. Chapter XV of the Ordinance deals with the scales of pay, method of appointment, qualifications for various posts etc. Thus it can be seen that at the time when respondent No.3 was initially engaged in the year 1999, the First Statutes, Ordinance etc. had not been framed. Respondent No.3 was obviously appointed since she had got the requisite qualifications. Therefore her appointment was not made through the backdoor. It could not also be said by any stretch of imagination that her appointment was illegal or irregular. 13. The University had been utilising her services eversince 1999. The Standing Committee on Staff and the Syndicate had considered all these aspects while deciding to regularise the service of respondent No.3 and other casual employees who had been continuing in the University on temporary basis. In the above facts and circumstances the University, in my view, would be entirely competent and justified in taking a decision on the question of regularisation of service of respondent No.3 who has been in service for about 9 years. I am not satisfied that this is a fit case in which discretionary jurisdiction of this Court under Article 226 has to be invoked to interdict the University from regularising the service of respondent No.3 as Data Entry Assitatant. 14. Before parting with the case it has to be mentioned that a disturbing tendency is being noticed in several cases relating to the Universities in the State. Many of the confidential records are being WP(c).17028/07 8 produced by outsiders like the petitioners who are applicants for some posts in the University. Obviously some godfathers are behind these candidates as otherwise it would not have been possible for them to have access to such confidential records. I am constrained to make the above observation since similar instances have been noticed in quite a few cases filed against the Universities in the State. It is high time that the authorities concerned, be it the University or more appropriately the Chancellor himself and/or the Government, take appropriate action in the matter to stem this palpable rot in the administration of the affairs of the Universities in the State. There is no merit in the contentions raised by the petitioners. Therefore the writ petition fails and it is accordingly dismissed. **A.K. Basheer Judge.** **an.**